Kabat & Anor & Garacia (No 3)
[2019] FamCA 505
•31 July 2019
FAMILY COURT OF AUSTRALIA
| KABAT AND ANOR & GARACIA (NO. 3) | [2019] FamCA 505 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open evidence after the conclusion of trial – Where the evidence was reasonably available at trial – Where the evidence is unlikely to affect the outcome of the trial – Where the evidence is embarrassing – Where the application is dismissed. |
| Family Law Act 1975 (Cth) |
| Australian Securities and Investments Commission v Rick & Ors (2006) 235 ALR 587 Cook & Cook (No 6) [2010] FamCA 810 Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365 |
| 1st APPLICANT: | Mr Kabat |
| 2nd APPLICANT: | Ms Kabat |
| RESPONDENT: | Ms Garacia |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Bookallil |
| FILE NUMBER: | BRC | 7499 | of | 2017 |
| DATE DELIVERED: | 31 July 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 19 July 2019 |
REPRESENTATION
| FOR THE 1ST APPLICANT: | Self-represented |
| FOR THE 2ND APPLICANT: | No appearance required |
| FOR THE RESPONDENT: | No appearance required |
| FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance required |
It is ordered that:
The applicant father’s Application in a Case filed 27 June 2019 to re-open his case and adduce further 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 Kabat and Anor & Garacia 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: BRC 7499 of 2017
| Mr Kabat |
First Applicant
And
| Ms Kabat |
Second Applicant
And
| Ms Garacia |
Respondent
And
| Independent Children’s Lawyers |
REASONS FOR JUDGMENT
Mr Kabat is the father of three young children and I heard a parenting case between him and the mother of the children concluding after five days on 7 June 2019. My judgment will be delivered immediately following the delivery of these reasons.
On 27 June 2019 the father filed an application to re-open his case and adduce further evidence. I made an order in chambers on 16 July 2019 listing the matter for 19 July 2019 to consider whether or not the evidence relied upon in the affidavit filed by the applicant father on 27 June 2019 (and the annexures or exhibits to the said affidavit) is sufficient to warrant re-opening the case. I excused the attendance of the other parties. My intention was to avoid unnecessary costs to the other parties if the evidence identified by the father had no hope of falling into a category that might be sufficient to warrant a re-opening of the father’s case. If the evidence did fall into such a category, it was intended that the matter be relisted and all parties afforded the opportunity to be heard on the application.
As it turns out, I have considered the further evidence proposed to be relied upon by the father (including the annexures to his affidavit which I marked as exhibit 1 in the hearing) and have determined that the father’s application should be refused. My reasons for that decision are set out below.
Relevant legal principles
A decision to re-open a case after the conclusion of the trial and before judgment has been delivered is a discretionary one informed by a number of factors[1] including:
a)Whether justice will be best served by allowing the application;
b)The nature of the substantive proceedings;
c)Whether the proposed evidence was reasonably available at the time of the trial;
d)Whether the evidence, if accepted, would most probably affect the result of the case;
e)Whether the evidence is embarrassing in a legal sense i.e. it is not possible to discern what the evidence is or the evidence is unintelligible, ambiguous or vague;
f)Whether the other party/s would be prejudiced by the re-opening and how that prejudice could be overcome;
g)Any practical implications if the application is granted;
h)The public interest in the timely conclusion of litigation.
[1] See Cook & Cook (No 6) [2010] FamCA 810 per Young J; Summitt & Summitt and Ors(Re-opening) [2009] FamCA 365 per Murphy J; Australian Securities and Investments Commission v Rick & Ors (2006) 235 ALR 587 per Austin J.
What evidence does the father seek to adduce if his case is re-opened?
The father’s affidavit itself contains little, if any, evidence as such. It could perhaps more aptly be described as part submission/part chronology/part complaint.
I observe that the father appealed against the trial directions made on 20 February 2019 and made an application to adjourn the trial on the first day of trial, which was dismissed. Part of the father’s affidavit addresses matters going to those issues i.e. why the trial should not have proceeded.
The ‘annexures’ to his affidavit (purporting to be the evidence he seeks to adduce if his case is re-opened) were tendered and marked exhibit 1.
The father’s application to tender a USB containing various video recordings was rejected in the following circumstances:
a)On 20 February 2019 the parties were reminded of their ongoing duty to provide full and frank disclosure of all information and documents (including recordings) relevant to an issue in the proceedings in a timely manner and an order was made to that effect;
b)On 21 May 2019 an order was made requiring the father to produce to the mother’s lawyer and the independent children’s lawyer (“ICL”) a USB containing all recordings relevant to an issue in the proceedings by 23 May 2019 (no such recordings had been produced);
c)Subsequently, the father provided to the mother’s lawyer and the ICL a USB containing 17 recordings (one of which could not be accessed);
d)During the trial the father was afforded a further opportunity to produce to the mother’s lawyer and the ICL any other recordings he contended were relevant to an issue in the proceedings;
e)Two recordings were tendered during the trial;
f)It is apparent from exhibit 1 and his submissions made in support of his application, that the original video recordings upon which the father now seeks to rely (which he says are contained on a USB) were made by the father prior to 17 October 2017 (the father has not seen the children since that date);
g)The father said that the USB contained video recordings that he had “edited and prepared” since the end of the trial.
The father has had more than ample opportunity since 17 October 2017, at least, (the proceedings having commenced on 21 July 2017) to produce recordings that he says are relevant to an issue in the proceedings. If the recordings are indeed relevant to an issue in the proceedings, the father has failed to comply with his ongoing duty of full and frank disclosure required by Chapter 13 of the Family Law Rules 2004 (Cth) and failed to comply with both the order made on 20 February 2019 and on 21 May 2019, and also failed to take the opportunity to produce the recordings during the trial. I reject the father’s contention that he has not had time to do so.
Further, it became apparent during the father’s submissions (in this hearing) that the purpose of at least some of the video recordings was to demonstrate the children appearing happy when in the company of the father, which he contends is to be contrasted with their demeanour currently, and which he submits indicates the children are being harmed by the mother. That is a very long bow to draw. Even if the video recordings do demonstrate the children appearing to be happy in the father’s company, it does not follow that their current demeanour (to the extent that there is evidence of that) can be relied upon to prove that the children are being harmed by the mother.
Finally, on this matter, the ‘list of evidence’ appearing at page two of exhibit 1 purports to identify the relevance of particular video recordings. Using the father’s numbering system I note that he refers to video recordings at items 4, 5, 6, 7, 8, 9, 18, 28 and 36. The summaries of the content of the video recordings at those items do not persuade me that the proposed evidence, even if relevant, would probably affect the outcome of the case.
Turning then to consider the balance of the proposed evidence in exhibit 1, I note, firstly, that the content is largely embarrassing in that it is difficult to discern what evidence is actually being sought to be adduced and exhibit 1, like the father’s affidavit, contains argument, submission and assertion.
Additionally, I note that items identified by the father as number 6, 10, 19, 20, 21, 22, 25, 30, 31, 32, 33, 34, 35 and 36 are already in evidence in whole or in part and contained in exhibits 9 and 7 of the trial.
Items number 1, 3, 4 and 17 refer to transcripts which are not before me.
I have reviewed the 38 numbered pages of exhibit 1 and make the following observations:
a)I am not persuaded that any of the documents could not reasonably have been available at the trial (and, as already noted, some of them are already in evidence);
b)None of the documents, if accepted, would most probably affect the outcome of the trial; and
c)The evidence is embarrassing.
The father candidly conceded that part of the purpose of his application was to make further submissions on the evidence already before the Court. The time for submissions has passed and the father was given ample opportunity to make his submissions at the end of the trial, and did so.
The father has not persuaded me that his application to re-open should be further considered and his application will be dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 31 July 2019.
Associate:
Date: 31.07.2019
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