Losif & Losif - [2023] FedCFamC1F 1084

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Losif & Losif [2023] FedCFamC1F 1084

File number(s): BRC 3570 of 2019

Judgment of: JARRETT J

Date of judgment: 15 December 2023

Catchwords:
FAMILY LAW – PARENTING – Application to vary final orders – Evidence does not suggest a change in circumstances – Any change in circumstances immaterial in context of primary judge’s findings – Application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – Application to adduce further evidence before delivery of judgment – Where evidence could have been available at hearing with reasonable diligence – Evidence not so material that the interests of justice require its admission – Application dismissed

Legislation:
Family Law Act 1975 (Cth) s 69ZN

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Cases cited:
Reid v Brett [2005] VSC 18

Withers & Russell (2016) 55 Fam LR 447

Division: Division 1 First Instance

Number of paragraphs: 40

Date of hearing: 17 November 2023 and 11 December 2023

Place: Brisbane

Solicitors for the Applicant: Litigant in person

Solicitors for the Respondent: Litigant in person
ORDERS

BRC 3570 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR LOSIF

Applicant

AND:
MS LOSIF

Respondent

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

15 DECEMBER 2023

THE COURT ORDERS THAT:
1.The initiating application filed on 8 August, 2023 is dismissed.
2.The response to final orders filed on 14 August, 2023 is dismissed.
3.The amended application in a proceeding filed on 14 November, 2023 is dismissed.
4.The application in a proceeding filed on 20 November, 2023 is dismissed.
5.The matter be listed for the purpose of taking submissions from the applicant as to whether the orders of 13 October, 2022 reflect the intention of the Court insofar as they make no provision for the children to spend time with the respondent during Christmas school holiday periods (save for the 2022 – 2023 years) at 9:30am on 20 December, 2023 in the Federal Circuit and Family Court of Australia (Division 1) sitting at Brisbane.
6.The parties have leave to appear by telephone on 20 December, 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:

On 13 October, 2022, a judge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Losif & Losif

Details

AGLC: Losif & Losif [2023] FedCFamC1F 1084
Case: [2023] FedCFamC1F 1084
Decision Date: 15 December 2023

CaseChat Overview and Summary

In the matter of Losif & Losif, the Federal Circuit and Family Court of Australia (Division 1) dealt with applications concerning parenting arrangements and the admissibility of further evidence. The primary concern of the respondent was to vary the final orders of 13 October, 2022, which she believed did not adequately address the children's need to spend time with her during Christmas holidays. Additionally, she sought to adduce new evidence, including documents from Education Queensland and B Hospital, to support her application. The court was required to decide whether there had been a change in circumstances warranting a variation of the final orders and whether the interests of justice required the admission of the new evidence.

The court examined the principles surrounding the reopening of proceedings for the admissibility of further evidence, referencing Withers & Russell (2016) 55 Fam LR 447. The court found that the respondent had not demonstrated a change in circumstances that would warrant a variation of the final orders. Moreover, the court assessed the respondent's application to adduce further evidence against the criteria set out in Reid v Brett [2005] VSC 18. The respondent's evidence, including the documents from Education Queensland and B Hospital, could have been available at the time of the hearing with reasonable diligence. Consequently, the court concluded that the evidence was not so material as to require its admission under the interests of justice.

The court dismissed both the application to vary the final orders and the application to adduce further evidence. However, the court acknowledged the respondent's concern about the holiday provisions in the orders of 13 October, 2022, and listed the matter for further submissions on 20 December, 2023. The court permitted the parties to appear by telephone for this purpose. The final orders of the court were to dismiss all outstanding applications and responses, with the exception of the matter concerning the holiday provisions, which was to be addressed in future submissions.

Orders

Orders of the court

BRC 3570 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR LOSIF

Applicant

AND:

MS LOSIF

Respondent

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

15 DECEMBER 2023

THE COURT ORDERS THAT:

1. The initiating application filed on 8 August, 2023 is dismissed.

2. The response to final orders filed on 14 August, 2023 is dismissed.

3. The amended application in a proceeding filed on 14 November, 2023 is dismissed.

4. The application in a proceeding filed on 20 November, 2023 is dismissed.

5. The matter be listed for the purpose of taking submissions from the applicant as to whether the orders of 13 October, 2022 reflect the intention of the Court insofar as they make no provision for the children to spend time with the respondent during Christmas school holiday periods (save for the 2022 – 2023 years) at 9:30am on 20 December, 2023 in the Federal Circuit and Family Court of Australia (Division 1) sitting at Brisbane.

6. The parties have leave to appear by telephone on 20 December, 2023.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the reasons that follow and save for one matter to which I have referred at the conclusion of these reasons, both applications in the proceeding shall be dismissed. Given the applicant no longer seeks a change in the final orders, I have consequently dismissed all outstanding applications and responses. APPLICATION TO ADDUCE FURTHER EVIDENCE The application in a proceeding filed 20 November, 2023 effectively seeks to reopen the parenting proceedings to allow the respondent to adduce further evidence. She sought a date of 18 December, 2023 by which to file that further evidence. In her affidavit filed 20 November, 2023, the respondent identifies two types of evidence she wishes to adduce if the case is reopened. The first relates to documents from Education Queensland, which were produced under a subpoena sealed on 6 November, 2023. Those documents were to be produced by 20 November, 2023. The second relates to documents from B Hospital and about which she says she wants to issue a further subpoena. The respondent also filed an affidavit on 8 December, 2023. This affidavit contained the respondent’s deposition to a series of events predating the hearing on 17 November, 2023, as well as some annexed documents produced under subpoena by Education Queensland and a specific complaint about the Christmas holiday time in the orders of 13 October, 2022 which had not been made prior. The applicant therefore seeks to adduce new evidence in four categories: documents from Education Queensland, documents from B Hospital (in respect of which she is yet to issue a subpoena), the further evidence contained in her affidavit of 20 November, 2023, and her evidence about what she considers to be an error in the orders of 13 October, 2022 relating to school holiday time. In Withers & Russell (2016) 55 Fam LR 447, Watts J traversed the legal principles relating to reopening proceedings for the purposes of adducing further evidence while judgment is reserved. Whilst not appellate authority, I respectfully adopt the comments of his Honour at [31] – [34] (paraphrased) that: ·an application to reopen a case is not an application for a parenting order and thus the court is not required to regard the best interests of the children as the paramount consideration; ·the best interests of the children is nonetheless a relevant consideration, and the decision to reopen requires a decision about the conduct of child-related proceedings, thus invoking the principles of s 69ZN of the Family Law Act 1975 (Cth) to:·consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child; ·actively direct, control and manage the conduct of the proceedings;·ensure the proceedings are conducted in a way that will safeguard the child concerned from being subject to abuse, neglect or family violence; ·ensure, as far as possible, the proceedings are conducted to promote cooperative and child-focused parenting; and·ensure the proceedings are to be conducted without undue delay and with as little formality and legal technicality as possible;·the usual criteria governing the exercise of discretionary power to reopen a case to admit further evidence apply as set out by Habersberger J in Reid v Brett [2005] VSC 18:·the further evidence is so material that the interests of justice require its admission; ·the further evidence, if accepted, would most probably affect the result of the case;·the further evidence could not by reasonable diligence have been discovered earlier; and ·no prejudice would ensue to the other party by reason of the late admission of the further evidence.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 3570 of 2019
Judgment of:	JARRETT J
Date of judgment:	15 December 2023
Catchwords:	FAMILY LAW – PARENTING – Application to vary final orders – Evidence does not suggest a change in circumstances – Any change in circumstances immaterial in context of primary judge’s findings – Application dismissed FAMILY LAW – PRACTICE AND PROCEDURE – Application to adduce further evidence before delivery of judgment – Where evidence could have been available at hearing with reasonable diligence – Evidence not so material that the interests of justice require its admission – Application dismissed
Legislation:	Family Law Act 1975 (Cth) s 69ZN Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited:	Reid v Brett [2005] VSC 18 Withers & Russell (2016) 55 Fam LR 447
Division:	Division 1 First Instance
Number of paragraphs:	40
Date of hearing:	17 November 2023 and 11 December 2023
Place:	Brisbane
Solicitors for the Applicant:	Litigant in person
Solicitors for the Respondent:	Litigant in person

BRC 3570 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR LOSIF Applicant
AND:	MS LOSIF Respondent

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	15 DECEMBER 2023