Goode and Goode
[2009] FMCAfam 1405
•30 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GOODE & GOODE | [2009] FMCAfam 1405 |
| FAMILY LAW – Practice and procedure – leave to reopen. |
| Family Law Act 1975, Pt 7, Div 12A |
| Goode & Goode (2006) FLC 93-286 Suell & Suell (2009) FamCA 55 Summitt & Summitt and Ors (2009) FamCA 365 |
| Applicant: | MR GOODE |
| Respondent: | MS GOODE |
| File Number: | PAC 2870 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 23 October 2009 |
| Date of Last Submission: | 23 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Vincent |
| Solicitors for the Applicant: | Watts Mccray Lawyers |
| Counsel for the Respondent: | Mr Brown |
| Solicitors for the Respondent: | Browns The Family Lawyers |
ORDERS
The applicant husband has leave to re-open the parenting proceedings between the parties which were otherwise concluded by the filing of submissions on 18 September 2009.
The applicant husband is permitted to adduce the following evidence (“the further evidence”) only:
(a)The interim application of the wife for spousal maintenance; and
(b)The affidavit of the wife in support of the above; and
(c)The financial statement of the wife; and
(d)Chronology.
The further evidence will collectively become Exhibit A3 in these proceedings.
On or before Friday 6 November 2009 the solicitor for the respondent wife it to advise the solicitors for the applicant husband whether, and if so in what manner, the respondent wife intends to respond to the evidence in Exhibit A3. Notice is to be given in writing and copied to my Associate.
On or before Friday 20 November 2009 the respondent wife is to file and serve any written document pursuant to Order 4 above, or otherwise relist the matter if there is an intention to proceed other than in writing.
Parties have liberty to relist the matter before me on seven days’ notice.
IT IS NOTED that publication of this judgment under the pseudonym Goode & Goode is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 2870 of 2008
| MR GOODE |
Applicant
And
| MS GOODE |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
After the conclusion of the evidence on 2 September 2009 in these proceedings written submissions were provided by the applicant husband and the respondent wife on or about 18 September 2009.
On 23 September 2009 before I provided reasons for judgment, my chambers was notified of a possible application to reopen the case by the applicant husband. Accordingly, I took no further steps to prepare the reasons. The application to reopen eventually came before me on 22 October, and these reasons relate to that application.
The oral application by Ms Vincent, the solicitor for the applicant husband, was that leave be granted to reopen the case so that the applicant husband could rely on four further documents consisting of:
a)a chronology; and
b)
initiating application by the wife filed on 11 September 2009 in the Federal Magistrates Court at Parramatta returnable on
23 November 2009 which seeks final and interim spouse maintenance against the husband, in the sum of $750 per week; and
c)an affidavit of the wife in support of that application, which was sworn 7 September, and
d)a financial statement of the wife, also sworn on 7 September.
The application by the applicant husband is merely that I would receive these documents into evidence, and take them into account as part of my deliberation in the substantive case. For the applicant husband there was no suggestion that any further oral evidence was needed. Reopening was, therefore, limited to the tendering of these documents to which I have just referred.
In relation to the documents in question, two matters are notable. Firstly, Mr Brown, the solicitor for the respondent wife, has no objection to my receiving the chronology, and could not cavil with the accuracy of the facts referred to therein. Thus, for all practical purposes, at least in the present context, the factual matters set out in the chronology are common ground. As they are relevant, I intend to incorporate the chronology, verbatim, into my oral reasons.
25 June 2009
Day 1 of final hearing
26 June 2009
Day 2 of final hearing
Date unknown
Mother prepares her Initiating Application and Affidavit for Spouse Maintenance
2 September 2009
Day 3 of final hearing
7 September 2009
Mother signs Initiating Application for Spouse Maintenance, her Affidavit and Financial Statement in support of her application for Spouse Maintenance, refers to next Court date of 2 September 2009
9 September 2009
Michael Brown signs Lawyer’s Declaration on the Mother’s Initiating Application
11 September 2009
The Mother’s Initiating Application, Affidavit and Financial Statement sworn on 7 September 2009 are filed in the Parramatta registry of the Federal Magistrates Court under a different file number, PAC 7969 of 1999, being the file number in previous proceedings in the Family Court of Australia
12 September 2009
Limitation period expires for the Mother to bring an application for Spouse Maintenance
18 September 2009
Written submissions are filed by the respective parties in relation to the substantive children’s proceedings before the Sydney registry
22 September 2009
Letter from Browns The Family Lawyers forwarded to Watts McCray Lawyer with the Wife’s Spouse Maintenance application
23 September 2009
Watts McCray receives the above correspondence
In short, the chronology indicates that on the same day as the final day of evidence in this case, that is 7 September, but obviously before written submissions were provided to me, the respondent wife swore her affidavit and financial statement in support of an application for spouse maintenance. On 11 September, the application and the said documents were filed at Parramatta Federal Magistrates Court, using a file number different to that used in these proceedings.
On 18 September, written submissions were filed. On 22 September, the solicitor for the respondent wife wrote to the solicitors for the applicant husband forwarding, by way of service, the application and supporting documents.
The second matter to be noted is that Mr Brown objected to my reading the documents in question in the context of the application for leave to reopen. He submitted that I should deal with the application without regard to the actual documents, and that the general description contained in the chronology was enough with which to deal with the present application. I disagreed with him at the time, and I received a copy of the documents over his objection.
The situation was, I thought, no different to ruling on an objection during the course of a hearing. I had to consider the documents in order to rule on the application to reopen. If I declined to reopen, then, of course, the material will be entirely disregarded. The documents were clearly relevant to the application before me.
Ms Vincent made the following submissions in support of the application to reopen:
a)firstly, the evidence, if admitted, demonstrates the hypocrisy of the wife’s complaint in evidence that it was the husband who was always taking her back to court;
b)secondly, the evidence, if admitted, goes to the wife’s credit, which was a live issue in this case, as indeed, was the credit of the husband;
c)thirdly, the evidence, if admitted, supports a major contention in the husband’s case, and that is that the wife had engineered and is engineering an inability to communicate with the husband;
d)fourthly, the evidence, if admitted, is relevant to an important contention in the wife’s case, and that is that she can afford to pay rental in the area proximate to where she would like the children to go to school; and
e)fifthly, the evidence, if admitted, tends to demonstrate the lack of clarity and certainty in the wife’s plans for the children.
Mr Brown submitted that, as a matter of legal principle, the evidence sought to be adduced did not justify the granting of leave to reopen. Mr Brown referred me to a decision of Murphy J in the Family Court, in a case called Summitt & Summitt and Ors (2009) FamCA 365. But with respect to Mr Brown, I am wondering whether he, in fact, meant to cite the decision of Murphy J in Suell (2009) FamCA 55. Summitt deals with leave to reopen in a property case, whereas Suell deals with leave to reopen in a parenting case. I am sure it is the latter case he meant to refer me to.
In any event, the submissions of Mr Brown can be paraphrased and summarised in the following fashion:
a)firstly, that the material is not directly relevant to the parenting matters before the court;
b)secondly, even if it were allowed in, it would not make a difference in terms of the final result;
c)thirdly, these long, drawn out proceedings relating to the children must be finalised as soon as possible, and that is a matter of public policy;
d)fourthly, it is not in the best interests of the children that these proceedings be extended;
e)fifthly, leave to reopen must be granted with the greatest of caution; and
f)sixthly, if leave were granted, and the material admitted, the respondent wife would need to be given the opportunity to put in material or make submissions with a view to rebutting any inferences drawn against the wife, if the material was admitted.
Mr Brown did quite properly, I think, make a concession during submissions and that was that if the respondent wife’s spousal maintenance application was successful, she would have more options as to where she could live. I note that this is a significant concession to make in a case where the respondent wife’s proposals for her accommodation, and therefore, where the children would go to school, lacked precision.
In terms of the applicable law, as indicated above, I think the authority that Mr Brown meant to refer me to, that is the decision of Suell & Suell (2009) FamCA 55. This case contains a very useful discussion of the relevant authorities and the approach I ought to take, particularly in the context of leave to reopen parenting proceedings and the extent to which division 12A of part 7 has in impact on the same.
The decision of Murphy J is extremely useful, and the relevant paragraphs are paragraphs 7 to 28, but, in particular, I incorporate into these reasons, paragraph 27 of the judgment.
27. By reference to those decisions (and, indeed, to other authorities including those specifically referred to earlier in these reasons and in the written submissions just referred to by Mr North SC), I consider that, when account is taken of Division 12A, the factors relevant to the exercise of my discretion in this application include the following:
· Is the further evidence relevant to issues directly affecting V’s best interests and the ultimate decision about that?;
· Is the further evidence likely to affect, in a substantial way, the ultimate finding or findings that would otherwise have been available on the evidence at the hearing?;
· Could the further evidence have, with due diligence and preparation, been discovered so as to be led at the trial and, associated therewith has there been undue delay on the part of the applicant in bringing the application, particularly in light of s.69ZN(7);
· The nature and extent of any prejudice which is likely to be caused to the respondent in responding to any such evidence within a reasonable time;
· Is V likely to suffer detriment if the evidence is admitted and the trial re-opened, and, if so, the nature and extent of any such detriment;
· Recognition of the principle that it is in V’s best interests (and his parents) that parenting litigation be finalised as soon as possible;
· Recognition of the fact that proceedings for parenting orders are not in the nature of ordinary inter-party proceedings; they may involve a broader inquiry into the best interests of children than that which is circumscribed by the issues identified by the parties;
· The fact that the discretion to admit further evidence “… needs to be exercised with much care in parenting cases”. (See CDJ v VAJ @ Para [117].
Indeed, I will use the same as the template for my discussion of the issues raised in the present case.
So the first issue is this: is the further evidence relevant to issues directly affecting the best interests of the children, and the ultimate decision about that? In order to answer this question, it is necessary to appreciate the issues that arise for determination based on the three days’ evidence I heard:
a)The first issue is where the children are to live. The mother says with her and contact with the father. The father now says - and in this regard I refer to paragraph 20 of counsel’s submissions - that he wants the children to live with him for nine out of 14 nights each fortnight. Therefore, to that extent, he wants the children to live with him.
b)The second issue is how much time the children are to spend with each parent. I recognise that this is closely related to where they are going to live. The various proposals include the mother wishing to actually reduce the current time the children spend with the father, the father wanting equal time, the father wanting nine out of 14 nights, and of course, any number of other possibilities.
c)The third issue, and the most pressing in terms of the need for a decision, is where the children will go to school in 2010. The evidence indicates that they will need to move out of the former matrimonial home in the near future, possibly this year. The oldest child starts high school in 2010 and the parents cannot agree about schooling.
d)There is an issue about whether an order for sole parental responsibility should be made to enable the mother to make decisions about schooling, as she proposes, or whether, as the father proposes, there should be equal shared parental responsibility.
e)There is an issue about credibility of the witnesses, including the husband and the wife. I observe that in many parenting cases, decisions about what is best for children can be made without making findings as to credit. Regrettably, this is not one of those cases. The evidence of the husband and wife conflicts in relation to a number of significant matters. Findings are necessary.
This is a non-exclusive list of issues. Indeed, another way of identifying the issues in this case is by reference to section 60CC subparagraphs (2) and (3), but I think for practical purposes, I only need to focus on the matters that I have identified above. I intend to adopt a minimalist approach in addressing the first of the questions asked by his Honour Murphy J in Suell. I am just going to focus on what I regard as the most pressing issue, and that is where the children go to school next year.
I recognise this is not a stand alone issue, and it is very much linked to with which parent they live and contact, but that, in part, depends on geographical considerations, such as where, in particular, the mother will be living. Even if I ordered sole parental responsibility to the wife in relation to education, that does not rule out the possibility that I would decide where the children go to school in 2010 based on the evidence. In other words, one option is that the wife has sole parental responsibility in relation to education in the future, but not for 2010.
In determining this question - that is, where they will go to school - I must preferably know and accept the wife’s evidence about where she is going to live, as that, in all likelihood, influences where the children go to school. Where the mother proposed to live is tied up with affordability. The evidence sought to be adduced raises questions about, firstly, the evidence she gave me in relation to these matters, and secondly, whether, in fact, the wife can afford to live in the areas in which she indicated without spouse maintenance, and therefore can, in fact, send the children to the school she proposed. Hence, even on this minimalist approach, the answer to the first question is that it is relevant, and it will directly affect the best interests of the children.
The second question is: is the evidence likely to affect, in a substantial way, the ultimate findings that would otherwise have been made available on the evidence of the hearing? In other words, assuming it is relevant and goes to best interests, will it make a difference or will it change anything? This is a finely balanced case. It was robustly litigated by each parent for several years. Each makes claims about the other’s credit and matters as to parenting. There is no clear-cut answer or solution. Could this evidence tip the balance one way or another? The answer, which, of course, is limited to the context of this case, is yes.
The third question that is asked by Murphy J is: could the further evidence have, with due diligence and preparation, been discovered so as to be led at the trial, and associated therewith, has there been any undue delay on the part of the applicant in bringing the application? The answer is no on both fronts. Having regard to the chronology, it is quite apparent that this could not have been discovered before the end of the trial, and I am satisfied that the proceedings were drawn to my attention in a timely fashion.
The fourth question is the nature and extent of any prejudice which is likely to be caused to the respondent in responding to any such evidence within a reasonable timeframe. Of course, in this case, the evidence sought to be adduced is the respondent wife’s own material. It is the applicant husband who will submit that inferences adverse to the respondent wife should be drawn from this material. Thus, there is no prejudice to the respondent wife in having to respond. Indeed, perhaps it could be said that there would be prejudice to the respondent wife if she were not allowed to respond, and I intend to give her that opportunity.
The fifth principle is this: are the children likely to suffer detriment if the evidence is admitted and the trial reopened, and if so, what is the nature and extent of this detriment? Of course there will be detriment if the final determination of these proceedings is prolonged, but I need to consider this as against the detriment to the children of making an order about their welfare - for example, where they go to school - based on erroneous assumptions of what the mother can provide for them in terms of accommodation and, to a lesser extent, her financial circumstances. The extent of detriment can be contained, depending on how the respondent wife takes advantage of the opportunity I will give to her to respond to this evidence.
The sixth principle is to recognise the principle that it is in the best interests of the children and, indeed, the parents, that this parenting litigation be finalised as soon as possible. This is self-evident. I was informed for the first time on 23 October that this case is, in fact, the litigation reported as Goode & Goode (2006) FLC 93-286, which means that this litigation has been going on for over three years now, though not necessarily continuously. The youngest child is only five years now, so the parents have been litigating for most of his life. There could be no clearer case study demonstrating the need for the litigation to be finalised as soon as possible. However, this self-evident principle needs to be balanced against the reality that I must make the most informed decision I can about the children’s best interests. My ability to do that may be hampered if I do not receive the evidence in question and the respondent wife’s response to it, if applicable.
Seventhly, I need to recognise the fact that proceedings for parenting orders are not in the nature of ordinary inter-party proceedings, and may involve a broader inquiry into the best interests of children than that which is circumscribed by the issues identified by the parents. I accept this in principle. It means, for example, that I might draw inferences from the evidence that are not necessarily the inference that either the husband or the wife ask me to draw, and in the same way I might make orders that are not the orders that either of them ask me to make. I am looking for a best interests outcome, and I believe that I would be hamstrung in doing this without the evidence in question.
Lastly, the discretion to admit further evidence needs to be exercised with much care in parenting cases. Again, I accept and recognise this, and my comments, of course, are limited to the unique circumstances of this case where the evidence sought to be adduced is, whilst relatively narrow, highly relevant in making the difficult decision in a finely balanced case.
How, then, should the discretion be exercised? There is no doubt that I am exercising the discretion here, albeit by reference to the principles referred to above. Having regard to the matters I have set out above, I will allow the applicant husband to reopen his case and to tender, and therefore, rely on the material in question. I am advised by Ms Vincent that nothing else is sought by the applicant husband.
However, in order to avoid prejudice to the respondent wife, I must give her the opportunity to file some evidence or to make some further submissions to respond to the inferences that I have been asked to draw by the applicant husband about the material in question. It is the respondent wife’s choice as to how precisely she does this. For example, she might simply make further submissions to me about this evidence. She might file an affidavit for further evidence. She might wish to lead further evidence. Indeed, she might decide that the issues potentially arising out of the new evidence are so significant to her case that I should actually hear the maintenance application myself and determine it as part of the present proceedings. She might decide to do something else, or nothing at all. I am merely speculating, of course. However, she needs to carefully consider her options because her decision may have broader implications, especially if the applicant husband is then prejudiced by her response. All of this, of course, has the potential to further delay an adjudication of this matter in a context where both parents agree it is urgent that I decide this case.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 14 January 2010
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