FAMILY COURT OF AUSTRALIA
Menuhin & Menuhin (No. 2) [2021] FamCA 334
File number(s): MLC6298/2018 Judgment of: HARTNETT J Date of judgment: 26 May 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to reopen proceedings – Leave to reopen – Where the mother seeks to adduce further evidence exclusively to parenting following trial where judgment is reserved – Where the father opposes the application – Where the evidence is not likely to impact the result of the parenting proceedings – Principles Applicable Factors informing the exercise of discretion – Where the matters in reopening were already canvassed in the mother’s evidence and closing submissions – No new information – Prejudice to the father – Evidence will not assist with final determination of the matter – Ongoing litigation and expense – Where it is not in the best interests of the child to delay the proceedings further – Application to reopen dismissed. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) div 12A; ss 64B, 69ZN, 69ZR, 69ZT and 121.
Family Law Rules 2004 (Cth) r 17.02
Cases cited: CDJ & VAJ [1998] FLC, 92-828
EB & CT (No. 2) [2008] QSC 306
Gelley & Gelley (1992) FLC 92-290
Naczek & Dowler (No.4) [2008] FamCA 653
Smith & NSW Bar Association (1992) 176 CLR 256
Suell & Suell (Re-opening) [2009] FamCA 55
Urban Transport Authority & Nseiser (1992) 28 NSWLR 471
Number of paragraphs: 26 Date of last submission/s: 18 May 2021 Date of hearing: 18 May 2021 Place: Melbourne Counsel for the Applicant: Dr Ingleby via Microsoft Teams Solicitors for the Applicant: Meerkin & Apel Lawyers Counsel for the Respondent: Ms Vohra SC and Ms Dellidis in person Solicitors for the Respondent: Mills Oakley Lawyers
ORDERS
MLC 6298 of 2018 BETWEEN: MS MENUHIN
Applicant
AND: MR MENUHIN
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
26 MAY 2021
THE COURT ORDERS THAT:
1.The Application in a case of the Applicant wife filed 29 April 2021 be dismissed.
2.The Applicant wife pay the costs of the Respondent husband as agreed and on a party/party basis. In the event of a failure to agree such costs, such costs are to be taxed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Menuhin & Menuhin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
Before the Court was an Application in a Case filed 29 April 2021 seeking an order that:
The wife have leave to reopen the evidence to inform the Court…
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- Menuhin & Menuhin (No. 2) [2021] FamCA 334
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- [2021] FamCA 334
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CaseChat Overview and Summary
The central legal issue before the court was whether to grant the mother leave to reopen the proceedings to adduce further evidence. This required the court to exercise its discretion, guided by the interests of justice and the paramount consideration of the child's best interests, as mandated by Division 12A of the *Family Law Act 1975* (Cth). The court had to weigh factors including the relevance and likely impact of the new evidence on the ultimate decision, whether the evidence could have been discovered with due diligence, the potential prejudice to the father, and the detriment to the child if proceedings were further delayed.
Hartnett J reasoned that the proposed evidence was not likely to substantially impact the final determination of the parenting proceedings, as the matters raised had already been canvassed in the mother's evidence and closing submissions. The court noted that there was no new information presented and that admitting the evidence would cause prejudice to the father, prolong the litigation, and incur further expense. Crucially, the court found that further delay would not be in the best interests of the child. Applying the principles discussed in *Suell & Suell (Re-opening)*, the court concluded that the application to reopen was not warranted.
Consequently, the court ordered that the mother's application to reopen the proceedings be dismissed. The mother was also ordered to pay the costs of the father on a party/party basis, with costs to be taxed if not agreed.
Orders
Orders of the court
MLC 6298 of 2018
BETWEEN:
MS MENUHIN
Applicant
AND:
MR MENUHIN
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
26 MAY 2021
THE COURT ORDERS THAT:
1. The Application in a case of the Applicant wife filed 29 April 2021 be dismissed.
2. The Applicant wife pay the costs of the Respondent husband as agreed and on a party/party basis. In the event of a failure to agree such costs, such costs are to be taxed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Parenting proceedings are not purely proceedings inter partes. This Court has a role to ensure the best interests of the children are met in the orders made. Regard must be had to Division 12, Subdivision A of the Family Law Act 1975 (Cth), (“the Act”). In Suell & Suell (Re-opening) [2009] FamCA 55, Murphy J discussed the applicable principles to a case such as this. He said, in paragraphs 7 to 16 and 23 to 28 therein, relevantly, the following:7.Division 12A of the Act now governs the conduct and hearing of parenting cases in this Court. Its wide-ranging provisions have the potential to impact on the current application.8.Prior to the introduction of Division 12A, it might broadly be said that common law principles governed applications to reopen in this Court. (see eg Gelley & Gelley (1992) FLC 92-290 and the cases there discussed).9.Those principles make it clear that the granting of leave to reopen is discretionary. That discretion is guided by the interests of justice. The essential question is, is the court more able to do justice in the facts and circumstances of the particular case if the application is granted. (see eg Smith & NSW Bar Association (1992) 176 CLR 256; Urban Transport Authority & Nseiser (1992) 28 NSWLR 471 at 478 and EB & CT(No. 2) [2008] QSC 306)10.In cases where reasons for judgment have not been delivered, the High Court has held that the primary consideration should be embarrassment or prejudice to the other side. (see Smith above, at 266-267)11.Prejudice or embarrassment, though, is a broad concept and is not limited merely to cost or expense. The significant stress imposed upon litigants, particularly where the prior litigation history has been lengthy, has been widely recognised as an element of prejudice. Moreover, litigants have a right to expect finality in litigation.12.Parenting orders, however, involve – and involve crucially a person who is not a litigant. This Court is compelled legislatively (and, in any event, is continually aware) in such cases to be aware that the primary interests are those of the child.13.The High Court has held, in the context of an application to admit further evidence on appeal, that such an order is not a ‘parenting order’ in terms of s 64B of the Act (see CDJ & VAJ [1998] FLC, 92-828). The effect of that, as the High Court pointed out, is that the ‘paramountcy principle’ predominating the best interests of children does not directly apply.14.However, the High Court went on to say:…nevertheless the Full Court of the Family Court was plainly right in concluding that the principle was relevant to the question whether further evidence should be admitted by the Full Court…. In an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter at issue, the principles which govern the resolution of that case are the same for the Full Court as they are for the Judge at first instance. Consequently, the Full Court is bound to have regard to the best interests of the child as a paramount consideration when determining the appeal. (at para 87 per McHugh, Gummow and Callinan JJ)15.The High Court also pointed out in that context, that, in effect, the admission of fresh evidence on an appeal is the exception rather than the rule. Finality to litigation and the other factors earlier mentioned are directly relevant.16.A distinction between the principles applicable to re-opening on appeal and those applicable to re-opening a trial can also be seen in that judgment. More is required in that context than “a real chance that the order does not serve the best interests of the child. In the case of re-opening a parenting trial, it must be borne in mind that, at issue in the substantive proceedings is the initial determination of what is in the best interests of the child.…23.Division 12A of the Act might also be seen as ameliorating the strictures of the formal procedures with respect to matters within the contemplation of s69ZN(1). The abolition of many of the rules of evidence (s 69ZT) can be seen as a stark example of that.24.It seems to me that the legislature seeks to reinforce that intention in s 69ZR (1) of the Act which provides as follows:“If, at any time after the commencement of child-related proceedings and before making final orders, the Court considers that it may assist in the determination of the dispute between the parties, the Court may do any or all of the following:a) make a finding of fact in relation to the proceedings;b) a matter arising out of the proceedings;c) make an order in relation to an issue arising out of the proceedings.”Note: For example, the Court may choose to use this power if the Court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.”25.I consider the specific reference to the timeframe “before making final orders” and the two additional specific references to matters or issues “arising out of the proceedings” evidence the legislature contemplating that matters may arise after the final hearing of a matter, but before final orders are made, which, by reason of their relevance to arriving at decisions with respect to the best interests of a child, ought be properly considered by the court.26.Reference is made in the written submissions of Mr North SC, counsel for the respondent father, to criteria for the exercise of the discretion to re-open enumerated by the Victorian Supreme Court in Reid v Brett [2005] VSC 18 @ 41 and to the citing of those criteria with approval by Applegarth J in EB v CT [2008] QSC 306.27.By reference to those decisions (and, indeed, to other authorities including those specifically referred to earlier in these reasons and in the written submissions just referred to by Mr North SC), I consider that, when account is taken of Division 12A, the factors relevant to the exercise of my discretion in this application include the following:•Is the further evidence relevant to issues directly affecting V’s best interests and the ultimate decision about that?;•Is the further evidence likely to affect, in a substantial way, the ultimate finding or findings that would otherwise have been available on the evidence at the hearing?;•Could the further evidence have, with due diligence and preparation, been discovered so as to be led at the trial and, associated therewith has there been undue delay on the part of the applicant in bringing the application, particularly in light of s.69ZN(7);•The nature and extent of any prejudice which is likely to be caused to the respondent in responding to any such evidence within a reasonable time;•Is V likely to suffer detriment if the evidence is admitted and the trial re-opened, and, if so, the nature and extent of any such detriment;•Recognition of the principle that it is in V’s best interests (and his parents) that parenting litigation be finalised as soon as possible;•Recognition of the fact that proceedings for parenting orders are not in the nature of ordinary inter-party proceedings; they may involve a broader inquiry into the best interests of children than that which is circumscribed by the issues identified by the parties;• The fact that the discretion to admit further evidence “… needs to be exercised with much care in parenting cases”. (See CDJ & VAJ at Para [117]).28.In addition, it needs to be borne in mind, in my view, that further parenting proceedings, by reason of their nature, and because they are now conducted within Division 12A, run the risk of requiring greater exploration of issues than might be the case in other litigation, (which such litigation is often confined by pleadings), and where parenting proceedings can be driven by values as well as facts. (As to the latter, CDJ & VAJ at [152]). Consideration