Ibbot and Baumer
[2019] FamCA 138
•14 March 2019
FAMILY COURT OF AUSTRALIA
| IBBOT & BAUMER | [2019] FamCA 138 |
| FAMILY LAW – CHILDREN – Parenting – Where final judgment is reserved – Where an Application in a Case was filed to re-open the trial and for new evidence to be adduced – Where the father alleges that he has not seen or spoken to the children since before the trial – Where the orders currently in place do not provide for the children to spend any time with the father – Where these orders were not sought to be varied at the trial while the judgment is reserved – Where the mother submitted, and the father acknowledged, that phone contact had recommenced – Where the situation is not substantially different to that at the time of the trial – Where the mother would suffer significant prejudice if the matter were re-opened – Where the Application in a Case is dismissed. |
| Family Law Act 1975 (Cth) |
| EB v CT (No 2) [2008] QSC 306 Miller & Cooper [2015] FamCA 997 Smith v NSW Bar Association (1992) 176 CLR 256 Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365 Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 |
| APPLICANT: | Mr Ibbot |
| RESPONDENT: | Ms Baumer |
| INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox |
| FILE NUMBER: | LEC | 310 | of | 2016 |
| DATE DELIVERED: | 14 March 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 11 March 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Boys MPB Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr O'Reilly O'Reilly & Sochacki Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Fox Barbara Fox Solicitor |
Orders
The father’s application to re-open the trial and to admit additional affidavits into evidence, is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ibbot & Baumer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: LEC 310 of 2016
| Mr Ibbot |
Applicant
And
| Ms Baumer |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
This is the determination of an application to re-open a trial that concluded on 16 November 2018 and to allow further evidence to be adduced of matters that have occurred since the trial and whilst my judgment has been reserved.
The trial, of three days duration, was the hearing of competing parenting applications of the mother and father of two children, both boys, aged eight and five at that time. The mother was represented by a solicitor and counsel. The father was represented by a solicitor and there was an Independent Children’s Lawyer (“ICL”) who also had experienced counsel representing her.
Determining the parenting proceedings involves determining allegations made by the mother that the father has perpetrated sexual abuse against one or both of the boys and that they would be placed in a situation of unacceptable risk if they have unsupervised time with him in the future.
On 25 May 2017 Senior Registrar Spink of this Court’s Brisbane Registry made interim orders that the boys live with the mother and spend time with the father at a private, commercial children’s contact centre in City D each third weekend. On 27 July 2017, Senior Registrar Spink varied that order, again, on an interim basis, by providing that the children spend time with the father from 10.00 am to 3.00 pm on the first Saturday of every month and the third Sunday of every month supervised by a particular named supervisor who was known to the mother and father.
Time between the boys and the father took place, mostly, pursuant to those orders until not long before the trial. The supervisor decided to stop volunteering her services, which included driving from her home in Brisbane, to the southern end of City D for each supervised visit, due to what she considered were clearly irreconcilable difficulties as between her and the father.
At the time of the trial the boys were not spending any time with the father. He proposed another woman as supervisor, but neither the mother nor the ICL approved of that person. That person gave evidence at the trial for the father and was cross-examined. It became clear that the ICL’s objection and the mother’s objection to this person being the supervisor was not unreasonable.
At the end of the trial, counsel for the ICL submitted that the Court’s final orders should provide for the boys to continue to live with the mother and for them to spend time with the father, supervised at a community-based contact centre, with the closest ones to the vicinity of where the father, the mother and the children live, being Town B in northern New South Wales or Suburb C of City D. The submissions made for the father were that supervision was not necessary but that if the Court determined that it was necessary the father would just have to accept that.
The interim orders of Senior Registrar Spink did not provide for the boys to spend time with their father on special days such as Christmas Day, but they did provide for him to communicate with the boys by telephone, with the mother to initiate a call to the father each Wednesday night between 6.00 pm and 6.30 pm.
When I reserved my judgment at the end of the trial, no application was made on behalf of the father for any further interim orders and the matter was reserved with knowledge on all participants’ part, including mine, that the boys would not be spending any time with the father prior to the delivery of my final judgment unless it was supervised by a contact centre or a person approved by the mother, the father and the ICL.
The Application in a Case
On 14 February 2019, the father’s solicitor filed an Application in a Case seeking the following orders:
(1)An Order to Adduce further evidence.
(2)An Order to file an Amended Initiating Application providing Final Orders Sought.
He filed an affidavit sworn by the father in support of the Application in a Case. In that affidavit the father deposes to not having seen the boys since September 2018, including not being allowed to see them on Christmas Day 2018, nor being allowed to provide them with bicycles that he had purchased them for Christmas. He also deposed to not being “allowed … to speak to [the] children via telephone since the Hearing in November 2018”.
A second affidavit of the father was filed on 5 March 2019. It contained the deposition of the father that he “will not be attending a Contact Centre now or in the future as [he has] done nothing wrong to require supervision”. He also said:
I will accept time with the children from 9:00AM Saturday until 4:00PM Saturday unsupervised and from 9:00 AM Sunday until 4:00 PM Sunday unsupervised every second weekend as well as school holiday time. However… the mother cannot encourage a meaningful relationship between myself and the children.I say that it is not in the best interest [sic] of these children to live with the mother and I am prepared to accept a live with order.
I asked this Honourable Court for a change of residence for the children.
I listed the matter for hearing on Monday afternoon, 11 March 2019. The mother was represented by her solicitor. She appeared with him in Court. The father was represented by his solicitor. He did not appear with his solicitor in Court and the Court was told the father had to attend an appointment with Centrelink in order to maintain his social security benefit – the Newstart Allowance. The ICL appeared by telephone.
I confirmed with the solicitor for the father that his application was for orders:
(i)Reopening the trial;
(ii)Granting the father leave to adduce the further evidence contained in his two affidavits filed 14 February 2019 and 5 March 2019; and
(iii)Granting the father leave to effectively amend his application in the principal proceedings so as to again seek an order that the boys live with him and spend time with their mother.
An application to re-open the trial
The granting of leave to re-open a matter after judgment has been reserved is discretionary and it to be considered by having regard to the interests of justice. As has been held before, the essential question is whether the Court is more able to do justice on the facts and circumstances of a particular case if the application is granted.[1] Some of the matters relevant to the exercise of the discretion are whether:
(i)The further evidence is so material that the interests of justice requires its admission;
(ii)The further evidence if accepted would most probably affect the result of the case;
(iii)The further evidence could not by reasonable diligence have been discovered earlier;
(iv)Prejudice would ensue to the other party by reason of the late admission of the further evidence; and
(v)The interests of justice are not best served by finality in litigation – a particularly acute consideration in a parenting case.
[1] See Smith v NSW Bar Association (1992) 176 CLR 256; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; EB v CT (No 2) [2008] QSC 306; Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365; Miller & Cooper [2015] FamCA 997.
The solicitor for the father made a submission that the focus of the consideration of the interests of justice needs to be directed at the children and the paramountcy of their best interests and went on to submit that this new evidence that the father seeks to adduce in a re-opened trial would persuade the Court that the mother will never let the children spend any time with the father and that their interests will be best served by ordering that they live with him.
Whilst I consider that in parenting proceedings determining whether the interests of justice would be best served by permitting a re-opening of a trial when judgment remains reserved still requires recognition of the fact that parenting proceedings are to be determined with the best interests of the children being paramount, I am not persuaded in the circumstances of this case that a re-opening is required.
With respect to the father and his solicitor, I do not consider that the evidence would affect the result of the case. The father’s solicitor would know, even if the father does not, that this Court is not going to make its determination as to whether the orders should provide for the children to spend supervised or unsupervised time with the father on the sole basis of whether or not the father is willing to be supervised at a contact centre. The provisions of ss 60CC(1), (2) and (2A) of the Family Law Act 1975 (Cth) make it clear that greater weight is to be given to the consideration of the safety of the children than to the consideration of the need to maintain a meaningful relationship between the children and both their parents.
The factual circumstances the father complains of, namely that the mother will not let the boys spend time with him unsupervised either at any time or even on Christmas Day, are not matters that have arisen since the trial finished. Before the trial started, the children were not spending time with the father because the supervisor who had so commendably volunteered her time for over a year was no longer willing to do it anymore. Without agreement between the parties (including the ICL) contact was not happening. That the mother maintained her position in that respect after the trial concluded could hardly have come as a surprise to the father and his solicitor. To submit that it is “inconceivable” that the ICL would not support a move to unsupervised time in the circumstances, as the father’s solicitor did submit, was extraordinarily naïve.
To be clear, the ICL submitted in very few words that there was no merit in the father’s application. She quite rightly submitted that if the father has a complaint that the mother has not been complying with the interim orders that provide for telephone communication as she is required to, that he should be filing an application for her to be dealt with for contravention of those orders not an application to re-open the trial. She also quite rightly submitted that he should have focused his efforts, whilst waiting for the judgment, on finding a supervisor or a supervising centre that would meet with the approval of the mother and the ICL, or, I add, at least of the Court.
The mother’s solicitor pointed to the length of time the proceedings have been ongoing to this point in time – over two and a half years – and submitted that the mother could very well suffer the prejudice of being without legal aid funding if the matter is re-opened, her grant of aid previously in place for the trial having concluded at the end of the trial. He pointed out that engaging her solicitors to represent her in responding to this application alone is causing her “significant financial hardship” and that any re-opening would likely increase that hardship, as well as the stress and emotional hardship she has been enduring for a long time.
The mother’s solicitor also pointed out, relying on the mother’s affidavit evidence in response to the father’s, that there is dispute about some of the father’s factual assertions. As such, a re-opening would likely require a further hearing date being set, cross-examination of the father and the mother again after further affidavits are filed and even more submissions. The mother’s solicitor pointed to the evidence, not contradicted by the father or his solicitor that telephone communication between the father and the children did resume again some three weeks ago. That was reassuring to the Court as the mother must heed the responsibility of complying with the existing order that it is she who is to have the boys call and speak with their father each Wednesday evening, if she is to avoid the prospect of a contravention application being filed against her, which in itself enlivens the Court’s power to vary the existing orders if it is considered in the children’s best interests.
Having considered all of the matters raised by the solicitor for the mother, all of the matters the ICL raised, most importantly the fact that the position the father finds himself in since the conclusion of the trial is substantially no different from the position he was in before, during and at the end of the trial, I am persuaded that the interests of justice in this case would be best served not by a re-opening of the trial and the admission of more evidence, but rather by dismissing the father’s somewhat misguided application and moving towards delivering final judgment as soon as possible.
I make the order set out at the commencement of these written reasons.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 14 March 2019.
Associate:
Date: 14 March 2019
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