Holinski and Holinski

[2015] FamCA 772

FAMILY COURT OF AUSTRALIA

HOLINSKI & HOLINSKI [2015] FamCA 772

FAMILY LAW – PRACTICE AND PROCEDURE – Application to reopen – Granted

Family Law Act 1975 (Cth)

Naczek & Dowler (No. 4) [2008] FamCA 653
Re Australasian Meat Industry Employees Union (WA Branch) ex parte Ferguson (1986) 67 ALR 491
Stephens & Stephens & Anor (Enforcement)[2009] FamCAFC 240
Watson & The Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88

APPLICANT: Mr Holinski

RESPONDENT: Ms Holinski

INDEPENDENT CHILDREN’S LAWYER: Ms Hafey of Legal Aid Parramatta

FILE NUMBER: PAC 129 of 2013

DATE DELIVERED: 24 August 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 24 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Turner Freeman Lawyers

SOLICITOR FOR THE RESPONDENT: Blackman Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hafey of Legal Aid Parramatta

Orders

1. The matter is adjourned to 24 November 2015 at 11.00am for further hearing (estimate 2 hours). The cross-examination is expected to be contained within two hours and further submissions are only to go to the issue of further evidence.

1. Leave granted to the Independent Children’s Lawyer to issue a subpoena on the preschool.

1. The mother is to file and serve her affidavit by 27 October 2015.

In respect of the Amended Application in a Case filed by the father on 20 October 2015

1. Order 1, that leave be granted for the applicant father to submit written submissions by way of reply, is dismissed.

2. Order 2 is granted in the terms sought being:

   2.That leave be granted for the proceedings to be re-opened for the purpose of the father adducing further evidence.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 129  of 2013

Mr Holinski

Applicant

And

Ms Holinski

Respondent

REASONS FOR JUDGMENT

1. This is an application made by the father in parenting proceedings to reopen the proceedings after the evidence was complete and I had reserved to deliver my judgment.  The evidence, which he seeks to adduce, is contained in a three-page, 10 paragraph affidavit, filed with his Amended Application in the Case in which he seeks to reopen.

2. In the course of argument I asked the parties if they could assist in relation to relevant cases in which this matter has been raised and Mr Blumberg, who appears on behalf of the mother, raised the matter of Stephens[1] to which I will return in a moment.

   [1] Stephens & Stephens & Anor (Enforcement)[2009] FamCAFC 240

3. The application to reopen is opposed by the mother and in particular it is raised, on her behalf, the issues of prejudice to the mother and also the lack of significance of the proposed evidence in relation to the issues to be determined.  It is her submission, put on her behalf, that it is simply “more of the same”.

4. The Independent Children's Lawyer is of the view that they are important matters that are raised in the father’s affidavit that go to the best interests of the children and in particular the issue of parental responsibility.  Subject to a concern that she had about the finality of the proceedings and in particular considering how long they have been on foot, she generally agreed with the submission put on behalf of the father that these are important matters and ought to be considered by the court.

5. The case referred to by Mr Blumberg, the matter of Stephens (supra), was a matter that dealt with the admission of further evidence on appeal and it related to property or financial proceedings rather than parenting proceedings though there were some comments made by the Full Court that were of assistance and related to reopening proceedings generally.

6. There are a number of cases that I located in relation to the issue of reopening on appeal but I think that there was one other judgment in particular, that I found that was of more use in these proceedings. That was the matter of Naczek & Dowler(No. 4)[2], which was a judgment of a single judge, Cronin J, when dealing with a similar application, being an application to reopen proceedings to adduce further evidence after his Honour had reserved to deliver his judgment in a parenting matter.

   [2] [2008] FamCA 653

7. In that case, his Honour reviewed a number of decisions in other civil contexts and also referred to financial cases in the family law jurisdiction but noted that the determination of parenting case is different in that the focus is on the best interests of the child.

8. His Honour noted that these parenting proceedings are determined to a large degree, but not exclusively, by the parameters of the proposals of the parties and his Honour said, at [6]:

   When new evidence is available, its reception has to be considered (not necessarily accepted) if it will affect the outcome of the case even in circumstances where the civil courts might shut it out for pragmatic reasons such as the way in which the parties have conducted their cases.

9. Nonetheless, his Honour said that the principles in a number of other civil cases do provide some guidance as how to deal with an application in a family law context and he referred to a number of judgments in that case.  He referred to a case Watson & The Metropolitan (Perth) Passenger Transport Trust[3] in which it was said:

   …that fresh evidence should be admitted only:

   a)when it was so material that the interests of justice required it;

   b)the evidence if believed, would most probably affect the result;

   c)the evidence could not by reasonable diligence have been discovered before; and

   d)no prejudice would ensue to the other litigant because of the lateness of that evidence.

   [3] [1965] WAR 88

10. His Honour also considered the case of Re Australasian Meat Industry Employees Union (WA Branch) ex parte Ferguson[4] in which Toohey J, in the Federal Court of Australia, handed down reasons for judgment in an inquiry under the Conciliation and Arbitration Act into a union election and the union sought to reopen the case to adduce further evidence. His Honour, in that case, distinguished it from a normal inter partes dispute and was of the view that the court’s obligation was to reach a satisfactory conclusion whether or not that avenue had been pursued by the parties.  Cronin J in Naczek & Dowler (supra) was of the view that there were particular parallels with the parenting case in that the court is required to pursue a satisfactory conclusion for the children and he said, at [12]:

    Importantly therefore the question to be asked is whether the further evidence proposed by the husband will affect the determination I have to make.

    [4] (1986) 67 ALR 491

11. Cronin J also had particular regard to the fact that these proceedings were conducted under Division 12A of Part VII of the Act which requires the court to give effect to certain principles in the section in performing duties, exercising powers and making decisions about the conduct of child related proceedings. His Honour had particular regard to the active direction, control and management of the proceedings by the trial judge and the way in which the court was to decide the manner in which evidence comes before it. He said, at [26]:

    It is clear therefore that the focus in a child-related proceeding should be on determining what evidence will assist in determining what is in the best interests of a child. Those principles and the provisions strongly point to the fact that a court is to decide what evidence will assist it. Whilst there is undoubtedly a requirement that all litigants be accorded natural justice, the judge ultimately bears the responsibility under Division 12A to decide what of the proffered evidence, he or she will find of assistance in the determination.

12. Having regard to the various matters arising from the civil cases generally and in particular the matters referred to by his Honour in Naczek & Dowler (supra) I am of the following view about the father’s application to reopen the proceedings.

13. Firstly, if the evidence of the father were accepted, serious issues about the mother’s parenting capacity are raised.  I do not accept the submission made by the mother that these allegations are simply more of the same.

14. The allegations of extremist views held by the mother in the proceedings, if they were found to have been proven, could have been managed by various orders, many of which I note were agreed to by the mother.  For example, a focus in relation to the issue of child discipline was the mother’s view that striking a child was an appropriate method of discipline, which was opposed by the father.  However, the mother did agree to a restraint on physical discipline.  Setting aside the level to which that restraint was enforceable, it still was a method, if what the father had said was true, would have been available to manage that particular area of concern.

15. Similarly, a concern in relation to health had been that the mother preferred that the children were not vaccinated but by the time of the proceedings, the mother had in fact had the children vaccinated and had agreed to an order that in future they would be vaccinated in accordance with the Health Department guidelines.

16. In other words, the sorts of matters that the father raised, would be able to be managed by orders and particularly some of those that had been proposed by the Independent Children's Lawyer and agreed to by the parties.

17. The new allegations contained in the father’s affidavit, however, are matters that relate to the mother’s judgment and if they were found proved, they could not possibly be managed by means of specific orders restraining her.  Rather, if proved, they do go to the heart of the mother’s exercise of parental responsibility.

18. I also accept the Independent Children's Lawyer’s submission, that if they are not proved and have been found to have been brought maliciously or as the mother alleges, in a further effort to control the mother, then they are significant factors going to the father’s bona fides in these proceedings.

19. The second matter I find is that the evidence sought to be adduced by the father could not have been discovered by reasonable diligence on his part beforehand as the underlying asserted facts had not, at that stage of the trial, arisen. Those matters are that the mother either condoned or arranged for L to provide inappropriate written material to children at a pre school and that the mother administered vinegar to the children as a means of discipline and, as I say, neither of these matters had arisen at the time of the proceedings.

20. While the issue of finality is relevant, and it was noted by Cronin J in the matter referred to that leave would not be given to a party to shore up something lacking or disputing or missing in the trial, I am of the view that the two matters referred to in the father’s affidavit are of a different type and the significance is of a greater magnitude than the evidence that was given at trial.  This is not giving the father an opportunity to add something that was lacking or missing at the trial, but if accepted is significant evidence that was not available at the time and which, in my view, may affect the result at the trial.

21. So far as the issue of prejudice to the parties is concerned, I accept that the further proceedings, if they are reopened, will involve further cost to both parties.  However, the issue will be contained within a couple of hours and is limited to a short affidavit by each party and possibly the issuing of a further subpoena.

22. It is possible that, depending upon the outcome of the proceedings if reopened, a costs application could in any event be made in relation to just that part of the proceedings, depending upon the result.

23. It is also submitted, on behalf of the mother, that the further prejudice to her is that she wishes, in effect, to get on with her parenting of the children and have finality in these proceedings.

24. While finality is an issue that would clearly benefit not only the parents but the children, in my view the resolution of the issue that has been raised in the father’s affidavit is of such significance in relation to the parenting capacity of the mother, if true, and the father’s bona fides in the proceedings if untrue, that it is of greater significance to the best interests of the children than finality. Especially, as I would ensure that, if the proceedings are reopened, that they would be determined and a judgment given before the end of the year which was really the only matter of concern of the Independent Children's Lawyer.

25. In these circumstances, and having regard to the various findings that have been made, I do grant leave for the proceedings to be reopened.

26. The orders in relation to the Amended Application in the Case are that order (1) is dismissed and that order (2) is granted in the terms sought.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 24 August 2015.

Legal Associate: 

Date:  17 September 2015