Langley and Tarelli

[2018] FamCA 545

FAMILY COURT OF AUSTRALIA

LANGLEY & TARELLI [2018] FamCA 545

FAMILY LAW – PRACTICE AND PROCEDURE – Application to reopen proceedings – Where the mother seeks to adduce further evidence relating exclusively to parenting following trial where judgment is reserved – Where the father and the Department of Family and Community Services oppose the application – Where the mother is unable to meet the emotional needs of the child – Where the evidence is not likely to impact the result of the parenting proceedings – Where it is not in the best interests of the child to delay the proceedings further – Application dismissed.

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

APPLICANT: Ms Langley

RESPONDENT: Mr Tarelli

INTERVENOR: The Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

FILE NUMBER: PAC 4311 of 2014

DATE DELIVERED: 27 June 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Parramatta

JUDGMENT OF: Cleary J

HEARING DATE: 21 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Executive Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Shaw

SOLICITOR FOR THE RESPONDENT:	B David & Associates
COUNSEL FOR THE INTERVENER:	Ms Barnett

SOLICITOR FOR THE INTERVENER: Crown Solicitors Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

Orders

(Orders 1-23 omitted intentionally)

1. The application in a case of the mother filed on 28 May 2018 [amended on 20 June 2018] is dismissed.

2. In response to the application of the father filed 12 June 2018 in respect of costs, the mother is to file any written submissions on which she relies by close of business Friday 26 July 2018.

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 Langley & Tarelli 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 NEWCASTLE

FILE NUMBER: PAC 4311 of 2014

Ms Langley

Applicant

And

Mr Tarelli

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application to reopen proceedings and adduce further evidence after a trial before me where judgment is reserved.  The application to re-open relates exclusively to parenting.  Adjustment of interest in de facto property was also an issue for determination. 

2. The application in a case was filed on 28 May 2018 and amended three weeks later. 

3. The applicant is Ms Langley, the mother of D, the subject child, now aged five years, five months.  The mother was the respondent in the substantive proceedings.  The respondents to the application in a case are, first, Mr Tarelli, the father of the child who was the applicant in the substantive proceedings, and second, the Secretary of Department of Family and Community Services, who had intervened in the proceedings. 

The Substantive Proceedings

1. The trial in this matter took place in Parramatta over six days:  five in October and one in November 2017, with further written submissions on behalf of the mother at the end of that month.  Judgment was reserved and has been since.

2. In April 2018, an application in a case by the mother was foreshadowed to the Court, although not filed and given a listing date, until 28 May 2018. 

Evidence

1. The documents relied on in respect of the application were as follows:

For the mother:

1. Application in a case, filed 28 May 2018. 

2. That application sought orders for leave to rely on five additional affidavits and material produced in response to subpoena.  There was then an amended application filed on 20 June 2018 in the same terms but with the addition of an order that there be an updating report by the single expert in relation to the child.  There was an affidavit of the mother filed on 28 May 2018, and a summary of argument handed up on the day.

For the father:

1. Response to an application in a case which proposed dismissal and sought orders in the alternative either for costs or security for costs, depending on the outcome of the application; There was an affidavit of the father filed 12 June 2018 and a case outline document handed up on the day.

For the Intervener:

1. There was a response to an application in a case filed in Court on 21 June 2018, although attempts had been made prior to that date, seeking dismissal and a case outline with summary of argument handed up on the day. 

For the Independent Children’s Lawyer:

1. There was representation but no documents relied on.

2. All parties were represented.  Both parents and the Department were represented by counsel for this application, the mother, by senior counsel. 

The Application

1. The affidavit of the mother was of 163 paragraphs with a further 141 pages of annexures.

Analysis

1. The mother is a qualified professional.  A significant number of paragraphs of the affidavit related to the standing of the mother and her professional capacity and experience.[1]  There was a tangential reference[2] work the mother had done relating to her ethical conduct there.  I could not find the reference referred to, but that is not to say that favourable comment was not made in a paragraph about the mother’s ethics.  There were references to named colleagues from the mother’s workplace, and others amongst colleagues and others in her profession.

   [1] Affidavit of the mother filed 28/05/2018, pars 15, 19, 75, 81 and 99VIII

   [2] Affidavit of the mother filed 28/05/2018, par 75

2. The real difficulty of inclusion of such material is that there was no challenge to these matters.  The mother’s tertiary qualifications, her work experience, her capacity to earn income, indeed, her intelligence and application were not challenged.

3. Other parts of the affidavit were in the nature of submissions about the alleged criminal conduct of the father and the domestic violence which characterised the parties’ short relationship.  These issues were extensively canvassed and cross-examined on during the trial.  There was amplification of the details of the mother’s dealings with the Department of Family and Community Services offices, prior to the interim change of residence for the child to the father in September 2017.  These matters too were part of the trial and the Department was an intervener.

4. There was a section of the annexures [48 pages][3] which was apparently the mother’s recording of a supervised visit with herself and the child on 13 September 2017.  That evidence, without conclusion about whether or not it would have been admitted, clearly existed prior to trial.  The transcript is best described as a descriptive analysis by the mother of events, including translation of exchanges in Croatian between the child, herself and the maternal grandmother.

   [3] Affidavit of the mother filed 28/05/2018, Annexure E

5. Other aspects were the trip the parties undertook to Hungary and Croatia in February 2014 with amplified detail.  This was the trip in which the mother alleges that the father attempted to murder her and the child.  It was extensively canvassed during the trial. 

6. The evidence which could possibly fall into the category of fresh evidence included, first, exchanges between a member of parliament on 29 November 2017 with the Department of Family and Community Services which did not amount to more than enquiry about how to go about getting information to assist the MP’s constituent, the mother.  There were also reports from the mother’s treating psychiatrist, a pastor of her church and her psychologist.

7. The letter from Dr LL, her psychiatrist,[4] was a rather caustic exchange in tone between himself and a departmental officer over the mother’s focus on the child or not. 

   [4] Affidavit of the mother filed 28/05/2018, Annexure Q

8. There was also a letter from Mr M, psychologist, to the Department.[5]  Both of these professionals had been consulted by the mother prior to the trial and were referred to.  Both of these professionals were strong advocates for the mother, as is appropriate for treating practitioners.

   [5] Affidavit of the mother filed 28/05/2018, Annexure V

9. Finally, there was an examination and description of medical records about the father’s partner.[6]  There were two things about this material.  The subpoena could have been issued for the trial, although it was not central.  Next, the father raises a complaint that he was not served with the relevant subpoena which gave rise to the production of those documents in order to object to their production.  If that is found to be so, it is a legitimate complaint, but the focus of the father is simply to have this application dismissed. 

   [6] Affidavit of the father filed 12/06/2018, par 11

10. In oral submission on 22 June 2018, senior counsel for the mother focussed on the issue of the mother spending no time with the child since the conclusion of the trial.  His argument, well developed, was that the case before me had proceeded on the basis that whatever orders were made, the child would spend time with each parent.  It is an agreed fact that up to the date of the trial, the mother did spend time with the child and that since the conclusion of the trial, the mother has not spent time with the child.  It was put on the record in response to a question from me that the mother has not spent time with the child and intends not to. 

11. There is an interim order in place for supervised time for the mother and child.  It was in place prior to the trial.  It is an agreed fact that the father and his partner have supported time for the child.  Senior counsel argued that now, the mother “cannot” spend time with the child.  The inverted commas are used by me to indicate that there is no external obstacle to time being spent.  This inability was attributed to the condition of Post-Traumatic Stress Disorder (“PTSD”) which has been diagnosed in the mother both by her treating psychiatrist and by the single expert, although there is a considerable difference between them about the longevity of the illness and its cause.  However, the mother did spend supervised time with the child up to the time of trial.  I infer that either the mother has chosen in a rational way not to see the child whilst ever he lives with the father, or her illness, PTSD, has worsened.  There may be other explanations. 

12. For whatever reason, the mother is unable to meet the emotional needs of the child at this time.

13. It must be the case that the mother understands that the child would benefit from seeing her. Submissions made on her behalf about the significance of her previous role of primary carer make that clear, as did her oral evidence in the trial.

14. The submission was made that what was unknown was what Dr H, the single expert, would recommend if he knew the mother “could not” (as used in context of this matter) see the child.  Following from that, it was submitted that reopening was essential to enable Dr H to prepare an updating report, “knowing that [the child] won’t have a relationship with one of his parents.”

15. I do not accept that submission.  The mother, in her trial affidavit, complained that since the child had lived with the father, “I have only had supervised visits for 2 hours each week on Wednesday.”[7]  The mother described herself as being “extremely worried about [the child’s] psychological and emotional wellbeing, as well as his physical wellbeing.”[8]

    [7] Affidavit of the mother filed 20/10/2017, par 293

    [8] Affidavit of the mother filed 20/10/2017, par 298

What Then, is the Change? 

1. The mother was able to attend contact visits until November 2017.  PTSD was a known factor.  A limit on the capacity of the mother to meet the child’s emotional needs was assessed by Dr H.  There was emotional unavailability of the mother due to her own mental state.[9]  If anything, this development is corroborative of the expert evidence. 

   [9] Single Expert Report dated 27/06/2016, pars 364-384 

Conclusion

1. In my view, there is no evidence contained in the affidavit which is relevant to the issues in dispute that was not led.  There is amplification of issues by additional detail, but essentially repetitive of trial material.  The projected fresh evidence is current opinions of treating practitioners and exchanges between them and the Department of Family and Community Services about why the mother chooses, or from her perspective is unable, to spend supervised time, and the current and positive attitude of the father and child to time taking place.

Exercise of Discretion

1. Are the interests of justice better served by allowing or rejecting this application? The parties are entitled to an outcome and, of course, both have the right to appeal if so advised.  The authority of Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240 sets out four considerations about reopening applications:

   ·That evidence sought to be relied on was not easily available at the time; 

   ·That fresh evidence is so material that the interests of justice require it; 

   ·That if accepted, fresh evidence would affect the result; and finally

   ·That there would be no prejudice to either party by the late introduction of the proposed evidence.

2. I do not consider that any of the first three criteria have been met for the reasons given, and I do consider there would be prejudice to both parties, but particularly the father, since he opposes the reopening by further delaying delivery of judgment. 

3. I have come to the conclusion that the interests of justice are better served by rejecting the application.  The interests of the child are also served by certainty about his own future arrangements.

4. For that reason, I dismiss the application.  I will shortly deliver the reasons for the substantive judgment.

5. Orders are made accordingly.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 27 June 2018.

Associate: 

Date:  27 June 2018