Gresham & Gresham
[2023] FedCFamC1F 49
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gresham & Gresham [2023] FedCFamC1F 49
File number(s): SYC 7914 of 2016 Judgment of: ALTOBELLI J Date of judgment: 10 February 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Husband’s application to reopen evidence – Where the wife also sought leave to reopen evidence in her response – Where the husband withdrew his application but the wife pressed her response – Wife has not discharged onus of proof to satisfy the Court to grant her leave – Wife’s Response to an Application in a Proceeding dismissed. Cases cited: McDermott & McDermott and Ors [2016] FamCA 613 Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 2 February 2023 Place: Sydney Counsel for the Applicant: Mr Lethbridge SC Solicitor for the Applicant: Watson & Watson Solicitors The Respondent: Litigant in person ORDERS
SYC 7914 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GRESHAM
Applicant
AND: MS GRESHAM
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
10 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The Respondent wife’s Response to an Application in a Proceeding filed on 1 February 2023 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 Gresham & Gresham has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment briefly explain the orders the Court has made in relation to competing applications to reopen substantive property and child support proceedings to adduce further evidence. The Application in a Proceeding filed on 31 January 2023 by the applicant husband (the respondent in the substantive proceedings) (“the husband”) was withdrawn and dismissed. The Response to an Application in a Proceeding filed on 1 February 2023 by the respondent wife (the applicant in the substantive proceedings) (“the wife”) is dismissed.
BACKGROUND
Immediately after orders are made in the present application and these reasons are published, the Court will make orders and publish reasons in the substantive property and child support proceedings between the wife and the husband. Matters of background are amply set out in those reasons and thus do not need to be addressed here.
The substantive proceedings were heard on 14–18 February 2022. Written submissions were not finally received until 25 June 2022. Judgment was reserved. The matter was relisted at the request of the Court on 10 October 2022 on the issue of further evidence on an important aspect of the case. Further written submissions were received following the mention by the wife on 15 November 2022 and by the husband on 1 December 2022. On 31 January 2023 the husband filed an Application in a Proceeding seeking leave to reopen the hearing to seek orders pertaining to the will of the wife’s recently deceased father, and documents relating to the wife’s potential entitlement under his estate. On 1 February 2023 the wife filed a Response to an Application in a Proceeding in which she too sought leave to reopen the proceedings in order to seek a multiplicity of orders, which will be discussed below. The competing applications came before me on 2 February 2023. The wife appeared in person, and the husband through his senior counsel, Mr Lethbridge.
MATERIAL BEFORE THE COURT
In support of his case, the husband relied on the following documents:
(a)Application in a Proceeding filed 31 January 2023; and
(b)His affidavit filed 31 January 2023.
In support of her case, the wife relied on the following documents:
(a)Response to an Application in a Proceeding filed 1 February 2023; and
(b)Her affidavit filed 1 February 2023.
APPLICABLE LAW
Foster J in McDermott & McDermott and Ors [2016] FamCA 613 at [7]–[11] comprehensively summarised the relevant law:
Leave to Reopen: applicable principles
7.It is well settled that reopening of a case prior to delivery of judgment is an exception to, rather than the usual course of, a trial.
8. In Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471 at 478, Clarke JA (with whom Mahoney and Meagher JJA agreed) pointed to the relevance, in an application to reopen, of the question whether the interests of justice are better served by allowing or rejecting the application. His Honour observed that:
The principle which would guide the Court in determining whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence is not led in the first place.
9. In Australian Securities and Investments Commission v Rich [2006] NSWSC 826; 235 ALR 587 at [18], Austin J pointed to matters relevant to an application to reopen including:
a) The nature of the proceeding;
b)Whether the occasion for calling the further evidence ought reasonably to have been foreseen;
c)Considerations of fairness in respect of the defendant's notice of the case they have to meet;
d)The importance of the issues as to which the further evidence is sought to be adduced to the issues in the case;
e) The degree of relevance and probative value of the further evidence;
f)The prejudice to the defendant in terms of delay and the completion of the proceedings and consequential costs;
g) The public interest in the timely conclusion of the litigation; and
h)The explanation offered by the applicant for not having called the evidence-in-chief.
10.In this Court in Mallard & Mallard [2011] FamCA 876, Fowler J distilled the applicable principles thus at [91]–[92]:
The fundamental principle to be applied in determining whether to grant an application to reopen a hearing after judgment has been reserved is whether the interests of justice are better served by allowing the application or rejecting it: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 per Clarke JA at 476 with whom Mahoney JA and Meagher JA agreed; Gelly and Gelly (No 1) (1992) FLC 92-290 per Treyvaud J at 79, 146-148; Smith v New South Wales Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256 per Brennan Dawson, Toohey and Gaudron JJ at 266-7 and Gaspaldi and Gaspaldi [2008] Fam CAFC 134 (unreported, Family Court of Australia, Bryant CJ, Thackray and Le Poer Trench JJ, 2 October 2007); Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240.
The court has discretion to reopen a hearing and allow fresh evidence where:
- the fresh evidence was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence and
- the fresh evidence is so material that the interests of justice require it and
-if believed, the fresh evidence would most probably affect the result of the trial and
- there would be no prejudice to the other party by reason of its introduction at a late point in time.
11. In similar circumstances to the present application in Summitt & Summit & Ors (Re-Opening) [2009] FamCA 365, Murphy J in considering the relevant principles said at [14]–[19]:
In a case involving an application for settlement of property, it can broadly be said that common law principles govern applications to re-open in this Court. (see e.g. Gelley & Gelley (1992) FLC 92-290 and the cases there discussed).
Those principles make it clear that the granting of leave to re-open is discretionary. That discretion is guided by the interests of justice. The essential question is, is the court more able to do justice in the facts and circumstances of the particular case if the application is granted. (see eg Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256; Urban Transport Authority v NSEISER (1992) 28 NSWLR 471 at 478 and EB v CT (No. 2) [2008] QSC 306)
In cases where reasons for judgment have not been delivered, the High Court has held that the primary consideration should be embarrassment or prejudice to the other side. (see Smith above, at 266-267)
A recent decision of the Supreme Court of Queensland, EB v CT (No. 2) [2008] QSC 306 was referred to by both counsel for the husband and wife. That case involved an application for property settlement under (then applicable) State law with respect to a de facto relationship. In that case, Applegarth J summarised, by reference to earlier authorities, the (common law) principles applicable to a re-opening:
[2] The guiding principle in deciding whether to grant leave to re-open is whether or not the interests of justice are better served by allowing or rejecting the application. Reference is made in Finbrough Investments Pty Ltd v Airlie Beach Pty Ltd and in the cases referred to in it to the need for finality and litigation.
[3] In Smith v New South Wales Bar Association the High Court stated that different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment had been delivered. As to the former situation, the Court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side.
[4] In Reid v Brett the criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered, was said to be as follows:
(a) the further evidence is so material that the interests of justice require its admission;
(b) the further evidence, if accepted, would most probably effect the result of the case;
(c) the further evidence could not by reasonable diligence have been discovered earlier;
(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.
In addition, his Honour held that:
[5] Reference by the High Court to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigant. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice is served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants
DISCUSSION
In response to a question by Mr Lethbridge SC, the wife explained that all of her late father’s estate was left to her mother and that she had no entitlement under the will. The wife confirmed in open Court that she is not a beneficiary and that no debt that she owes to her parents has been released. On behalf of the husband, Mr Lethbridge SC accepted that and communicated to the Court the husband’s instructions to withdraw his application and to have it dismissed. The Court observes that that was a completely appropriate course of action to take.
The wife indicated, however, that she wished to pursue several aspects of her application. She sought leave to reopen the case so that she could tender the following categories of documents:
(1)Police records in relation to domestic violence between the husband and the wife since 2016;
(2)The latest child support assessment between the parties dated 1 September 2022 – 30 November 2023;
(3)Various categories of financial documents relating to the records of Mr BN, the fund manager of the husband’s Country Q pension funds; and
(4)Various categories of documents relating to financial aspects of the husband’s Country Q pension funds.
It seems that the wife also sought to either amend her application, or bring a fresh application, the effect of which would be to require the husband to pay to the wife “the cost of the mortgage payments from the date of the final hearing (14 February 2022) until the completion of financial settlement”.
The Court observes that item (1) relates to documents about alleged domestic violence, which has not been part of the wife’s case at any time until the present application. Whilst her affidavit contains some evidence under this heading, no submissions were made in relation to this issue in her submissions filed 21 April 2022, or in her submissions in reply dated 25 June 2022. That is unsurprising. It was not a part of the wife’s case about alteration of property interests that the alleged family violence was somehow relevant either to contribution or future needs.
In relation to item (2), the Court dismissed the applications of both the husband and the wife in relation to child support issues for reasons stated in the substantive judgment. The latest child assessment would not have influenced the Court’s decision.
In relation to item (3), the relevance of these documents was not made clear in submissions. The parties agreed to the value of the various pension funds. The same applies in relation to item (4).
The legal and factual basis of any application by the wife to seek reimbursement of the mortgage paid is by no means clear. Was it a further application for spousal maintenance, or another interim order for alteration of property interests, or interim costs, or something else? Mr Lethbridge SC, on behalf of the husband, seems to have interpreted the wife’s proposal as an application to vary the existing orders for maintenance. The Court is not so sure. The Wife leads no evidence that would enable the Court to assess the validity of her claim.
DECISION
The onus of proof was on the wife to satisfy the Court that it should grant the leave in terms of the orders she sought. She has not discharged that onus and thus the application should be dismissed.
The relevance of the categories of documents sought is not apparent to the Court. The probative value of the documents is by no means clear. The Court doubts that would make any difference to the ultimate outcome of this case.
No suitable and cogent explanation is proffered as to why these issues could not have been raised before now. Indeed, the context and timing of the wife’s Response to the husband’s Application in a Proceeding creates a strong flavour of it being opportunistic and retaliatory.
The interests of justice strongly contraindicate allowing the wife, in the circumstances of this case, to in effect raise new issues on the very eve that judgment in the substantive matter is to be delivered. The unfairness to the husband is palpable. This litigation commenced in 2016 and, subject to any appeal, should be brought to a conclusion to the extent that this Court is able to do so. That is clearly in the interests of the public, but one would have thought also in the interests of this family.
ORDERS
The wife’s Response to an Application in a Proceeding filed 1 February 2023 is dismissed.
COSTS
Senior counsel for the husband applied for costs on the basis that the husband’s application would have never been necessary if the wife had responded to a request for information in terms of what she told the Court on 2 February 2023.
The Court declines to make an order for costs in favour of the husband in the circumstances. The wife found the husband’s request insensitive, offensive and inflammatory in circumstances where she was grieving the sudden death of her late father. It was unsurprising that the wife would need some time to reflect on, and possibly obtain advice in relation to, the request. This is a situation where each party should pay and bear their own costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 10 February 2023
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