Holinski & Holinski (No 2)

[2015] FamCA 1085

FAMILY COURT OF AUSTRALIA

HOLINSKI & HOLINSKI (NO 2) [2015] FamCA 1085

FAMILY LAW – PRACTICE AND PROCEDURE - Leave to Reopen – Previous application to re-open by the father granted and the mother directed to file an affidavit with respect to specific issues in response – Mother filed an affidavit including a new incident that occurred after the date she was directed to file the affidavit – Mother seeks leave to re-open the proceedings – Principles in relation to re-opening proceedings considered – Materiality – Effect on result – Discovery by reasonable diligence – Prejudice to the other litigant – Application to re-open refused.

Re Australasian Meat Industry Employees Union (WA Branch) ex parte Ferguson (1986) 67 ALR 491.
Holinski & Holinski [2015] FamCA 772.
Naczek & Dowler(No. 4) [2008] FamCA 653.
Watson & The Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88.

APPLICANT: Mr Holinski

RESPONDENT: Ms Holinski

INDEPENDENT CHILDREN’S LAWYER: Ms Hafey

FILE NUMBER: PAC 129 of 2013

DATE DELIVERED: 24 November 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 24 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Turner Freeman Lawyers

COUNSEL FOR THE RESPONDENT: Ms Dart

SOLICITOR FOR THE RESPONDENT: Blackman Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

Orders

(1)The mother’s application to re-open the proceedings is refused.

(2)The matter is adjourned to a date to be advised for delivery of reserved judgment.

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 on behalf of the mother to re-open the proceedings today to introduce further evidence of an alleged incident said to have occurred on 28 October 2015.  This arises in the context of protracted parenting proceedings, which after the close of the evidence were re-opened on the application of the father with respect to two particular issues.  A decision in relation to that re-opening was given on 24 August 2015 following an opportunity by each of the parties to address me in relation to the matter[1].

[1] Holinski & Holinski [2015] FamCA 772.

2.The mother’s application is opposed on behalf of the father, in that he says that this new incident is just that – it is a matter that is not covered by the direction of re-opening.  It was not a general direction that the proceedings be opened at large or generally. It is noted that the incident contained in the affidavit was said to have occurred after the date on which the affidavit was ordered to have been filed and, in fact, the affidavit was filed some weeks after it was ordered to have been filed.   The main submission made on behalf of the mother is that the incident is relevant in that it reflects the nature of the conflict between the parties, the father’s attitude towards the mother and his propensity, as it’s described, to cause mischief and that it would be unfair to the mother to allow the evidence in a vacuum without a full understanding of the dynamics, particularly as it occurred in the presence of the children.

3.None of those matters go to the test in relation to the re-opening of proceedings.  If the test were relevance, it simply could go on forever.  The cases that were referred to in the Reasons for Judgment on 24 August set out the principles that are to be applied in applications of this case. They refer to matters such as evidence being so material that the interests of justice require it; that the evidence, if believed, would probably affect the result; that the evidence could not by reasonable diligence have been discovered before and no prejudice would ensue to the other litigant.[2]

[2] See Naczek & Dowler(No. 4) [2008] FamCA 653 which considered Watson & The Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 and Re Australasian Meat Industry Employees Union (WA Branch) ex parte Ferguson (1986) 67 ALR 491.

4.So far as its materiality and, if believed, its probability of affecting the result is concerned, in my view, it is, in effect, more of the same.  I agree with the submission made by the Independent Children's Lawyer.  There is a plethora of evidence in relation to the nature of the conflict.  The Court could not be in a clearer position.  The whole of the litigation has demonstrated the nature of the conflict between the parents.  In my view, it’s not evidence of that critical nature.  The issue of fairness to a party is not one of the relevant matters.  The question is whether there’s prejudice, and the prejudice that’s being raised by the father is the likely delay to the proceedings.  It would require, in terms of procedural fairness the father to be given an opportunity to respond by giving further oral evidence.

5.There are documents now being called upon which would need to be examined and, in my view, there is no way that the matter could be contained in the two hours that have been allocated for today.  In terms of whether the evidence could not have by reasonable diligence have been discovered before, the reality is that if the mother had complied with the directions of the order for the filing of the affidavit, at that date the incident had not occurred and it simply can’t be that she can, in effect, take advantage of not having filed the affidavit in time by then including an incident about which she says nothing more than that it is relevant.

6.In all of the circumstances, in my view, particularly having regard to the sorts of matters that I raised that are referred to in the decision on 24 August and the notion of finality, having regard to the very protracted nature of these proceedings, it is not a matter in which it is appropriate or justice requires that the proceedings be re-opened and that application is refused.  The mother’s affidavit paragraphs 39 through to 48 are accordingly struck out and the issue of the subpoena does not arise.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 24 November 2015.

Legal Associate:

Date:  8 December 2015