GATENBY & CHISLER

[2019] FamCA 328

FAMILY COURT OF AUSTRALIA

GATENBY & CHISLER [2019] FamCA 328

FAMILY LAW – PRACTICE AND PROCEDURE – Reopening of proceedings – Refused.

APPLICANT: Ms Gatenby

RESPONDENT: Ms Chisler

FILE NUMBER: MLC 3057 of 2016

DATE DELIVERED: 17 May 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Gill J

HEARING DATE: 17 May 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

COUNSEL FOR THE RESPONDENT: Ms Stoikovska

SOLICITOR FOR THE RESPONDENT: Leanne Cain & Associates

Orders

1. The Application of the Applicant to reopen the proceedings for the reception of an exhibit VDG1 is refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gatenby & Chisler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3057 of 2016

Ms Gatenby

Applicant

And

Ms Chisler

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The proceedings were conducted by way of a final hearing taking place at the end of October start of November 2018.  Subsequently, an Application had been made and allowed for the reopening of the proceedings.  The impetus for that reopening involved a number of alleged incidents, particularly concerning B, but also to a lesser degree concerning C, but in March past involving alleged refusals by B to spend time with Ms Gatenby and incidents of B running away in order to avoid spending time with Ms Gatenby. 

2. Those matters were of sufficient gravity to allow the reopening of the proceedings over objection.  Those proceedings have now been conducted over two, and what is now the third day of the reopened proceedings.

3. Early in the reopening of the proceedings I flagged with Ms Chisler the potential for orders to be made contrary to those which were sought either by herself or by Ms Gatenby which could result in a separation of the siblings as a potential long-term arrangement.  This proposition was raised, as far as I can recollect, on the first day of the trial and reiterated on the second day of the trial with Ms Gatenby and also with a Single Expert. 

4. The Single Expert was able to provide a supplementary report, noting that he has been assessing this family since 2016, but a supplementary report based upon the additional evidential material that had been brought to bear for the reopening.  The evidence on the reopening closed yesterday afternoon and this morning an Application has been made by Ms Gatenby to again reopen to allow further evidence in.

5. That further evidence is exhibit VDG1, which involves a string of communications between B and C of 9 May, presumably this year.  It is said that that string of text messages justifies the further reopening because it illustrates two things.  The first thing that it illustrates is the potential for B, if separated from C, to apply pressure and perhaps more generally for B to apply pressure generally on C and D such as to destabilise an arrangement which features the separation of the siblings.  A further matter was raised being B questioning whether or not Ms Gatenby misses her.  That seemed to be a very subsidiary issue in relation to the Application to reopen. 

6. I am advised by Ms Stoikovska that should the Application be granted that there will be a need for Ms Chisler to call further evidence regarding conversations that she has heard between the children involving their particular views which have arisen post the filing of the affidavit material.  The evidence, or rather the proposition that is raised from the evidence, being the potential for B to apply pressure on her siblings should she be separated from them is already a matter which one would think is readily able to be inferred from the material in the case.  The material in the case, one would think, shows that there is potential for B if split from C and D to exert ongoing pressure and this may constitute a source of instability for such an arrangement. 

7. Already in this case the proceedings and the evidence have been fragmented and the Application would involve a further fragmentation of the proceedings.  Fragmentation is undesirable because it undermines the proper presentation of a case and of the evidence in the case and of argument in a case which is important to promote good decision making. 

8. In examining the principles for conducting child related proceedings it appears that principles one and two are applicable to the determination in this instance, being to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child and that the Court is to actively direct control and manage the conduct of the proceedings.

9. Given my observation that there is potential, or rather that there is a readily available inference that goes to the very matter which is the subject of the Application to reopen, this is not a case where the needs of the children in having the best decision made to promote their best interests are sufficiently supported by the reopening to justify it as against the second principle whereby the Court is to actively direct control and manage the conduct of the proceedings.  The incremental value of the evidence, if accepted, for the proposition for which Ms Gatenby advocates its reception is not sufficient to justify the further fragmentation of the proceedings in that context of the inference already being available.  The Application to reopen for the reception of an exhibit VDG1 is refused.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 17 May 2019.

Associate: 

Date:  23 May 2019