Gin & Hing (No 3)
[2022] FedCFamC1F 759
Federal Circuit and Family Court of Australia
(DIVISION 1)
Gin & Hing (No 3) [2022] FedCFamC1F 759
File number(s): MLC 4528 of 2010 Judgment of: WILSON J Date of judgment: 5 October 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – application for leave to re-open – application refused. Legislation: Family Law Act ss 60B, 60CA, 60CB and 60CC Cases cited: KMB & PRL [2005] FamCA 1202
Naczek v Dowler (No 4) [2008] FamCA 653
Stone & Clifford [2016] FCCA 2045
Suell & Suell (Re-Opening) [2009] FamCA 55
Division: Division 1 First Instance Number of paragraphs: 21 Date of last submission/s: 29 September 2022 Date of hearing: 29 September 2022 Place: Melbourne Solicitor for the Applicant: GR Lawyers Counsel for the Respondent: Mr F. Dixon SC Solicitor for the Respondent: Clancy and Triado Counsel for the Independent Children's Lawyer: Mr D. Whitchurch ORDERS
MLC 4528 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GIN
Applicant
AND: MS HING
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
WILSON J
DATE OF ORDER:
5 October 2022
THE COURT ORDERS THAT:
1.The father’s re-opening application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gin & Hing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
Introduction
On the 24th day of the trial of this proceeding the father applied for leave to re-open his case for the purpose of adducing further evidence recorded in an affidavit he made on 28 September 2022. On 29 September 2022 I refused that application, indicating that I would give reasons in due course. These are my reasons.
The trial of this proceeding is part-heard. The evidence has not closed. Ms N, clinical psychologist, is part way through her cross-examination by the husband. She has been cross-examined by the husband for several days. No apparent end is in sight.
The father is a professional. For a number of years he operated his own business. He currently holds a professional certification with corresponding professional insurance. He operates business of which he is the sole shareholder and director. He said he has not had clients for a considerable time. Since 2020 he has cultivated a career in what he described as “[child-related studies]” (although he gave very scant details of what that actually was). He said he was partially completed in an online postgraduate diploma conducted by M University. He said he is undertaking a certification.
During recent appearances before me the husband presented as he had in earlier appearances.
In essence, the husband told me he wishes to re-open his case so that he can put evidence before the court about the child and her day-to-day activities with a view to better informing the court of factual matters going to the formulation of orders that are in the best interests of the child.
Mr Dixon SC opposed the husband’s application for leave to re-open. He submitted that the husband needed to file and propound an application in a proceeding and, additionally, that the husband was required in the circumstances of this case to narrate in considerable detail the grounds on which he relied explaining at this late state of this trial the purpose for which leave is sought, the issue which the proposed new evidence addresses and whether the proposed new evidence touches upon evidence already adduced in the trial.
The husband produced an application in a proceeding dated 28 September 2022 in relation to the application for leave to re-open. It was perfunctory, to say the least. Rather than the husband recording the issues canvased in the paragraph immediately above, the husband’s application in a proceeding proceeded as follows –
1.Leave to (sic) is granted for the father to re-open and/or rely on his affidavit filed on 28 September 2022.
2.Such other or alternative procedural orders as the Court deems fit.
The affidavit made by the husband on which he wished to rely and for which he sought orders re-opening he case was marked as exhibit A on the re-opening application. It was not marked as an exhibit in the trial. The wife’s affidavit in opposition made 29 September 2022 was also marked as an exhibit on the re-opening application but not as an exhibit in the trial.
What needs establishing on a re-opening application
The husband was unaware of any authority on a re-opening application so I provided to him a case on which Mr Dixon SC relied, Stone & Clifford,[1] in which most of the key authorities on point were drawn together. They included KMB & PRL,[2] Naczek v Dowler (No 4)[3] and Suell & Suell (Re-Opening).[4]
[1] [2016] FCCA 2045.
[2] [2005] FamCA 1202.
[3] [2008] FamCA 653.
[4] [2009] FamCA 55.
Before addressing the more important holdings in those authorities, it is important to observe that at this stage of the trial of this proceeding, the trial is still on foot and is part-heard. Judgment is not reserved. It is a parenting case in which the abiding quest is for the making of orders that are in the best interests of the child. In the last day or so, the husband has begun to adopt the nomenclature that this case is a parent alienation case, a characterisation that is shunned in the lexicons of many Division 1 judges of this court, me included. It is common ground that almost since her birth, the child who is the subject of this litigation has been embroiled in bitter, unremitting and relentless warring between her parents. She is 12 years old. She has six years until attaining her majority. Litigation in this court was commenced in 2010. I entertain no expectation that even when final orders are pronounced by me after this trial will there be end to the warring between the parents over this child.
At all events, the main consideration on any application for leave to re-open is the best interest of the child, invoking a consideration of part VII of the Family Law Act and in particular ss 60B, 60CA, 60CB as well as s 60CC.
Cronin J examined the impact that a proposal for re-opening must have on the case as already put to the court. In Naczek & Dowler (No 4), his Honour held that the proposed new application[5] –
[M]ust have an impact on the proposals of the parties already put to the Court. That impact must be so significant as to not only change the direction of a party’s case but also to require the trial judge to contemplate a different scenario to that determined during the trial. If the evidence fits into that category, there must be an obligation on the Court to pursue it as a consideration of how it will impact upon the lives of the children.
[5] [2008] FamCA 653 at [9].
The second sentence of the quoted passage above was important. I invited the husband to address on the significance of the impact on the proposals already put. The husband told me that he will be seeking orders for a week about arrangement for the child’s time with the parents. Mr Dixon SC said such an alteration of the father’s application represented a diminution in the father’s time, not an increase in it. Mr Dixon submitted that while such a stance may represent a change in the direction of the husband’s case, it was difficult to see how that would or might impact upon the life of the child.
So far as the observation in Suell & Suell were concerned, there, it was held that generally, in parenting cases, the power to re-open should be exercised sparingly and with considerable circumspection. I invited the husband to address why leave to re-open should be ordered in view of those observations. The husband submitted that it was critical for him to put before me the information in his affidavit because that information revealed the circumstances in the child’s life since 2020 when the husband last was in the witness box. The husband then invited a searching review of the information in his affidavit.
Then began the father’s submissions about the details of his affidavit. I told him that the information needed to go to best interest considerations to justify the grant of leave on the father’s re-opening application. The husband endeavoured to match each paragraph or group of paragraphs of his affidavit agrainst one or more provisions in part VII of the Family Law Act.
After a searching debate that took the entire morning, the father told me that he abandoned and did not rely on paragraphs 3, 5, 7, 8-13, 14-17, 25-27, 55, 56, part of 57, 58-70, 80, 82, 84, 86, 87-92, 94-104.
Once the father voluntarily deleted those paragraphs, very little of his affidavit survived. The remaining paragraphs were –
(a)paragraph 4 in which the father addressed his career in child-related services;
(b)paragraph 6 in which the father addressed how his current partner is an allied health professional;
(c)paragraph 18 in which the father set out the child’s routine each Friday after school when the child is in the father’s care;
(d)paragraph 19 in which the father set out the child’s routine each Saturday when the child is in the father’s care;
(e)paragraph 20 in which the father set out the child’s routine each Sunday when the child is in the father’s care;
(f)paragraph 21 in which the father set out the child’s routine each Monday when the child is in the father’s care;
(g)paragraph 22 in which the father set out the child’s routine each Tuesday when the child is in the father’s care;
(h)paragraph 23 and 24 in which the father set out the child’s routine each Wednesday when the child is in the father’s care;
(i)paragraph 28 to 54 in which the father set out allegations of a contravention in June 2022, in respect of which Mr Dixon SC informed me that the relevant contravention had been dismissed;
(j)paragraph 57 in which the father purported to set out some change in the version of events as given by the mother;
(k)paragraphs 71 to 79, 81, 83 and 84 in which the father set out some change in the willingness of the child to go on a holiday in respect of which the father asserted that the child’s change of position was the result of the mother having influenced the child into the child’s change of position; and
(l)paragraph 93 in which the father sought to rely on a communication from the ICL, without setting out the chain of communication thereby rendering that one communication entirely out of context and meaningless.
In debate with the father, the only information that seemed probative related to the child’s weekly routine while in the father’s care. The quality of that evidence was poor as much of it was wholly subjective as seen through the father’s eyes. I took the view that if the father regarded that evidence as being critically important he could put it to Ms N and seek her response at a professional level. Otherwise, the remaining paragraphs of the father’s affidavit seemed to me to not be information that went to questions concerning the best interests of the child. For example, details of the father’s new career was of dubious value unless it addressed the father’s availability through his work to attend to the child after school. He said nothing of that which struck me as being peculiar in view of his desire to have equal time on a week about regime.
Mr Dixon SC urged me to refuse the father’s application because it was likely to raise irrelevant issues and would be productive of significant time delays in the orderly conduct of this trial. I took the view that rather than the proposed evidence raising issues about the best interests of the child, the father was endeavouring to agitate the issues before me that addressed parental alienation and that the father was seeking to bolster his own virtues as a father and care provider.
The authorities that guide me provide that leave to re-open should be granted sparingly and with circumspection. I told the father I would consider his application against a measuring stick of whether the evidence he seeks to adduce if leave were granted served some utility in better informing me about issues that went to the best interests of the child. Nowhere in the material that survived from the father’s affidavit was there information of that description.
For those reasons I refuse the father’s application for leave to re-open his case.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 5 October 2022
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