Matthews and Bender (No 2)

[2015] FamCA 924

FAMILY COURT OF AUSTRALIA

MATTHEWS & BENDER (NO 2) [2015] FamCA 924

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the mother to reopen and adduce further evidence when the hearing has concluded but judgment has not delivered –  where the evidence proposed to be adduced has already been canvassed at trial and is not material to the matters to be determined – where both the father and the child are likely to suffer prejudice if the case is reopened – best interests of the child considered – final orders made dismissing the mother’s application

FAMILY LAW – CHILDREN – Application by the father for a passport to issue in the child’s name and for the consent of the mother to the passport to be dispensed with – where the mother opposes the application and alleges that the father is a flight risk – where there is no evidence to support the mother’s allegations against the father – final orders made that the Registrar be able to sign all necessary documents to facilitate the father obtaining a passport for the child pursuant to s 106A, that the father be permitted to apply for a passport without the mother’s consent and that the child be permitted to travel overseas for a specified period of time

Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 98-828
Reid v Brett [2005] VSC 18
Smith v NSW Bar Association (1992) 176 CLR 256

APPLICANT: Mr Matthews

RESPONDENT: Ms Bender

INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates

FILE NUMBER: MLC 3524 of 2008

DATE DELIVERED: 4 June 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McGregor

SOLICITOR FOR THE APPLICANT: Fiona R McGregor

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates

Orders

IT IS ORDERED

1. That the mother’s Application in a Case filed 28 May 2015 be dismissed.

2. That the father, Mr Matthews be permitted to apply for a passport for the child M born … 2005 without first obtaining the consent of the mother.

3. That M be permitted to leave the Commonwealth of Australia for the purposes of travel to Bali, Indonesia returning to Australia via Country YM no later than three weeks from the date of departure.

4. That pursuant to s 106A of the Family Law Act a Registrar be authorised to sign all necessary passport applications to facilitate the issue of a passport in the name of M born … 2005.

5. That the father’s Application in a Case filed 29 May 2015 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Bender 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 MELBOURNE

FILE NUMBER: MLC 3524 of 2008

Mr Matthews

Applicant

And

Ms Bender

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.

2. This matter was listed for final hearing before me commencing on 20 January 2015.  The proceedings relate to the parenting arrangements for M, who is aged almost 10 years. 

3. At issue at the final hearing were the questions of whether the mother should be permitted to relitigate the question of with whom the child lives and the allocation of parental responsibility.  If not permitted to relitigate those issues, the remaining issue is what time and upon what basis the mother should be permitted to spend time and communicate with the child. 

4. The hearing was conducted over four days.  On 23 January 2015, having heard the evidence and the submissions made by the mother, the father and the Independent Children’s Lawyer (“the ICL”), I reserved judgment to a date to be fixed.

5. On 28 May 2015 the mother, who was the respondent in those proceedings, filed an Application in a Case seeking that she be granted leave to adduce further evidence in a case.  I will refer, for convenience, to that as the “application to reopen”.  In support of that application, the mother filed on that same day an affidavit sworn 7 April 2015. 

6. On 29 May 2015, the father filed an Application in a Case in which he sought orders for a passport to issue in the child’s name and that the consent of the mother to the issue of such passport be dispensed with.  Further, the father seeks that he be permitted to remove the child from the Commonwealth of Australia for the purposes of a holiday.  That application was supported by an affidavit of the father sworn and filed 29 May 2015.  Again for the purposes of convenience, I will refer to that application as the “application for a passport”.

7. Turning to the application to reopen, the principles governing the reopening of a case and the admission of further evidence have been considered by the courts on many occasions.

8. In Reid v Brett [2005] VSC 18, Habersberger J summarised the relevant criteria governing the exercise of the Court’s discretion in circumstances when the hearing had been concluded but judgment had not been delivered, they being circumstances not dissimilar to this case. Those circumstances are where:-

   (a)the further evidence is so material that the interests of justice require its admission;

   (b)further evidence, if accepted, would most probably affect the result of the case;

   (c)the further evidence could not by reasonable diligence have been discovered earlier; and

   (d)no prejudice would ensure to the other party by reason of the late admission of the further evidence.

9. In Smith v NSW Bar Association (1992) 176 CLR 256 it was held by Brennan, Dawson, Toohey and Gaudron JJ at page 267 that:-

   … different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered.  It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side.  In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised.

   (Citations omitted).

10. Those principles, insofar as they relate to appeals from decisions of this Court, and in particular parenting cases, are clearly articulated in CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 98-828 (“CDJ v VAJ”) where McHugh, Gummow and Callinan JJ said at paragraph 104 as follows:-

    Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interest of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion… In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors in exercising the discretion. 

    (Original emphasis; citations omitted).

11. Whilst the High Court in CDJ v VAJ held that an application to admit further evidence was not a parenting order, and hence the requirement that the Court consider as paramount the best interests of the child or children did not apply, it did go on to say that the Full Court in that case had been right in concluding that the best interests of the child is relevant to the question of whether the further evidence should be admitted. 

12. The application to re-open the case and to adduce further evidence is not a child-related proceeding as defined in s 69ZM of the Family Law Act 1975 (Cth) (“the Act”), not being a proceeding under Part VII of the Act.

13. However, s 69ZN(1)(b) of the Act confirms that the Court must give effect to the principles in that section if it is a decision about the conduct of child-related proceedings. The principles in s 69ZN that a Court is required to apply include that the Court must consider the needs of the child concerned and the impact that the conduct of the proceedings may have on that child in determining the conduct of the proceedings (s 69ZN(3)). Further, it requires that the proceedings be conducted without undue delay and with as little formality, and legal technicality and form as possible.

14. In her affidavit filed 28 May 2015, the mother asserts that there has been a change of circumstance that would justify reopening the case.  Her application is opposed by both the father and the ICL. 

15. At paragraph 1 of her affidavit, the mother deposes that during a contact visit on 28 March 2015, the child was extremely distant from her and refused to engage with her.  This was as a result, she asserts, of the father refusing to make his landline available on a Monday or a Wednesday at 7 pm in accordance with the orders of Macmillan J.  The balance of that paragraph is more in the form of a submission.

16. The mother asserts that the father’s behaviour is unacceptable and that it is fracturing the relationship between her and the child.  This was the theme of much of her evidence during the trial before me. 

17. In paragraph 2 of her affidavit, the mother refers to a telephone call which is said to have occurred on 4 April 2015.  The mother deposes that she was denied a telephone call with the child on Easter Sunday.  The current orders provide that the child communicate with her mother by telephone each Monday and Wednesday.  I note that there is no current order permitting telephone communications on weekends.

18. In the balance of that paragraph, the mother complains of a conversation alleged to have occurred between her and the paternal grandmother.  Further, she makes submissions as to the evidence given by the father during the hearing before me and as to matters currently before the Social Security Appeals Tribunal in relation to child support. 

19. Paragraph 3 of the mother’s affidavit addresses issues relating to time spent between the child and her maternal grandmother.  Again, this was the subject of evidence during the trial before me.

20. Seemingly, on the face of the affidavit material produced, the only new matters raised by the mother relate to the time spent by her with the child at the contact centre on 28 March 2015 and the telephone call said to have occurred on 4 April 2015. 

21. Prior to the commencement of the mother’s oral submissions, counsel for the ICL tendered notes of the contact centre in respect of the mother’s time on 28 March 2015.  Those notes were tendered by the ICL with the consent of the mother and the lawyer acting for the father.   During her oral submissions the mother sought to rely upon those notes.

22. The mother made submissions in relation to the notes.  It was evident from those submissions that the mother believes the notes support her application to reopen the case. 

23. The notes of the contact centre with respect to the visit on 28 March 2015 record a warm greeting being shared between the child and the mother at the commencement of the time. 

24. The third paragraph of the notes describes the exchange of hugs between the mother and daughter, a kiss, and the presentation of an Easter card by the child to her mother.  The notes then describe the range of questions put by the mother to the child during the course of the visit.  The notes state that the mother asked the child questions such as:

    Is everything all right?

    Want to talk to me about anything?

25. Questions were asked by the mother as to how often the child has seen her maternal grandmother.  the child was also questioned as to whether or not she was staying with the maternal grandmother during the holiday period. 

26. The notes also disclose the mother’s attempt to discuss with the child telephone communication and the mother’s alleged difficulties with telephone communication with the child.  The notes record an allegation by the mother made to the child that the father unplugs his telephone.

27. The notes also record that the visit at the contact centre concluded as a result of the intervention by the contact supervisors.  The notes record that the child was in tears during the mother’s visit. 

28. The focus of the mother’s submissions with respect to those notes was the child’s reported movement in twisting her body away from her mother when seated next to her on a couch at the contact centre.  The mother submitted that this was evidence of the child’s distant behaviour and further that that behaviour was as a result of the father’s failure to permit telephone communication. 

29. The mother made no submissions with respect to the parts of the notes where it was reported that she had questioned the child or that the child was in tears.

30. That approach by the mother was consistent with the manner in which she presented her case at the hearing, cherry-picking the parts of the notes which supported her case and ignoring the parts which were not to her advantage. 

31. During her submissions, the mother confirmed that she had not spent time with the child since that visit on 28 March 2015.  Her explanation for not spending time with the child since then is that the visits are too upsetting for the mother. 

32. During the trial I heard evidence from the mother, the father, and the director of the contact centre in relation to the mother’s time with the child at that contact centre.

33. The mother was the subject of criticism during the trial for her behaviour during supervised time.  Specific allegations were made at trial that the mother was passing notes to the child and whispering to her during her time with the child at the contact centre.  The mother denied those allegations. 

34. The material contained in the notes regarding the visit on 28 March 2015 disclose behaviour on the part of the mother that, if proven, is as concerning as the allegations made at trial.  The notes report that the mother is questioning the child repeatedly, discussing with her telephone communication and making disparaging remarks to the child regarding the father’s behaviour in relation to telephone communication.  As the evidence is untested, I am unable to make findings in relation to these matters.

35. However, if the behaviour reported in the notes has occurred, it is indicative of the mother’s lack of insight as to the impact of her behaviour on the child and the elevating of her own needs above those of the child.  That the mother does not attend for time with the child in the aftermath of the events of 28 March 2015, because she finds it too upsetting, supports that view. 

36. Having regard to the notes and the mother’s submissions in relation to them, I am satisfied that the evidence of the events of 28 March 2015 will not affect the result of the case.  Indeed, were such evidence to be admitted, there is a real prospect that it would hamper rather than assist the mother’s case. 

37. I am satisfied that the evidence of what occurred on 28 March at the contact centre is not material to the matters I must determine such that the interests of justice require that they be admitted.

38. As to the allegation of the failed telephone call on 4 April 2015, the mother’s case is that she was not permitted to speak with the child that day.  There is no order permitting telephone communication on that occasion.  The orders provide that the mother may communicate with the child on Monday and Wednesday. 

39. I specifically asked the mother during the course of her submissions whether there was an order permitting such telephone communication.  The mother indicated that she was unaware of such an order.

40. The parties’ difficulties with telephone communication was an issue traversed at the trial.  Both parties gave evidence and were cross-examined in relation to the matter.  Further, Dr J, who is the treating psychologist for the child, gave detailed evidence with respect to her observations of the child’s attitude to telephone communication. 

41. In those circumstances, I am satisfied that evidence of what occurred during telephone communication on 4 April 2015 is not a matter likely to affect the outcome of the case. 

42. I am also satisfied that the father is likely to be prejudiced by the reopening of the proceedings.  The reopening of the matter will likely delay a conclusion of the proceedings and cause further legal costs to be incurred. 

43. Moreover, and of even greater concern, is what I consider to be the potential prejudice to the child. In this case, the fact that there are parenting proceedings, and notwithstanding the provisions of Division 12A of the Act, I am not satisfied that the mother should be permitted to reopen her case. Having regard to the child’s welfare, I am satisfied that her best interests will be served by the matter being brought to a conclusion without further delay.

44. In all of the circumstances, I propose to dismiss the mother’s application.

45. Turning then to the passport application.  Orders were made by Macmillan J on 27 September 2013, which granted the father sole responsibility for the long-term care, welfare and development of the child. 

46. The child has been at the centre of conflict between her parents since 2008.  She has been the subject of proceedings since that time.  The parties participated in a seven-day hearing regarding the child’s care arrangements in 2013.  There has been a four-day hearing conducted before me this year.

47. The child is a young child who is continuing to have therapeutic intervention with Dr J as a result of her anxiety arising from these proceedings.  She has been under the care of Dr J since 2012 and that care is ongoing. 

48. The proposal of the father is that he travel with the child to Bali.  He proposes to travel to Bali for a period of two weeks during the June 2015 school-holiday period. 

49. The father is currently unemployed.  He lives in the home of his parents.  It is through their generosity that the opportunity for such travel has become available.

50. The father, in his affidavit filed 29 May 2015, sets out details of the arrangements made with respect to the proposed travel.  Paragraph 15 sets out the proposals regarding travel in June of 2015 and the fact that the father’s parents have arranged hotel accommodation for the family in Bali.  The flights for the proposed travel were booked by the father on 30 April 2015.  The father annexes to his affidavit at PAM1 a copy of the proposed travel itinerary.  Those travel arrangements include provision for the child to return home to Melbourne via Country YM on 10 July 2015.

51. The flights are booked on AirAsia.  The submission made on behalf of the father is that that airline booking was made as a result of the discounted flights available through that airline.  AirAsia is an airline based in Country YM and it is as a consequence of that that the flight returns via that country. 

52. The mother opposes the application for the issue of a passport and opposes the child travelling to Country YM.  It is her case that the father presents a flight risk.

53. She makes that submission based on her knowledge that the father’s brother, Mr DM, lives in Country YM and operates a business there.  The mother expressed concern that Country YM is a non-Hague Convention country and for those reasons, she opposes the travel. 

54. During submissions I raised with the mother the question of whether she would consent to the proposed travel, if travel could be arranged to occur, which did not take the child through Country YM.  The mother indicated her continued opposition to such travel.

55. The reality is the mother would oppose any travel by the child outside of Australia in the company of her father. 

56. Given the matters raised by the mother with respect to her concerns, I gave her leave to cross-examine the father as to his connection to Country YM and his travel proposals. 

57. The mother cross-examined the father, firstly, in relation to his employment.  The father’s evidence is that he is unemployed and that he is in receipt of Centrelink benefits.  The mother challenged that evidence and asserted that, in fact, the father was working.

1. In support of that challenge, she put forward a document generated by the Child Support Agency, being an assessment, which is exhibit A1.  That document indicates that the father has an income of $81,000 per annum.  However, the father’s evidence was that that assessment is based upon his June 2013 taxation return.  The father’s evidence is that he has not yet submitted his taxation returns for the years ending June 2014 and June 2015.  I asked the father whether he had any evidence to support his assertion that he is in receipt of a Centrelink benefit.

2. The father produced from his wallet his Centrelink card, which confirms that he is in receipt of Centrelink benefits.  The mother was shown that card, as was counsel for the ICL.  The mother did not cross-examine the father any further in relation to his receipt of Centrelink benefits. 

3. The mother also cross-examined the father in relation to the business established by his brother in Country YM.  The father’s evidence was to the effect that he has no interest in the business and that to the best of his knowledge his parents have no interest in that business.  Further he stated that to the best of his knowledge, his parents have made no financial contribution to that business.

4. The father presented as a truthful witness and I accept his evidence.

5. The child has lived under the cloud of this litigation for almost the entirety of her life.  Indeed, there is probably not a period in her life where she has had the experience of her parents not being in conflict.  It is a tragedy for her that that is so.  The proposed holiday is a unique opportunity for her to travel overseas, to enjoy a holiday with her father and her grandparents.  It will provide a happy relief to her, a break from the spectre of litigation and an opportunity to experience other cultures.

6. I note from the father’s affidavit that it is proposed that he will be staying at a resort-style hotel, which is likely to have many activities that the child will have the opportunity to enjoy. 

7. I am satisfied, having regard to all of the circumstances of the case that the father does not present as a flight risk.  There is no evidence put before the Court which would suggest that to be the case. 

8. The mother made bold submissions from the bar table as to the extent of the business interests of the father and his parents in Country YM.  She produced no evidence to support those submissions.

9. I am further satisfied that it is in the child’s best interests that she have the opportunity of a holiday with her father and her paternal grandparents.  The father deposes that the child is aware of the proposed holiday and that she is excited at the prospect of that holiday. 

10. I am satisfied that it is in her best interests that she have the opportunity to have that holiday experience. 

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 4 June 2015.

Associate: 

Date:  4 June 2015