Menuhin & Menuhin (No. 2)
[2021] FamCA 334
•26 May 2021
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
Reid v Brett [2005] VSC 18
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 of events since the conclusion of the hearing before Hartnett J, which concluded on 4 March 2021, as set out in the affidavit filed contemporaneously with this application.
In support of the application, the Applicant wife (“the Applicant”) relied upon an Affidavit of evidence affirmed by her on 29 April 2021.
In response to the Application in a Case, the Respondent husband (“the Respondent”) filed a Response on 13 May 2021. He sought that the application be dismissed and that the Applicant pay the Respondent’s costs of and incidental to the application on a party/party basis with costs as agreed and failing agreement, with such costs to be taxed. The Respondent relied upon an Affidavit of evidence affirmed by him on 12 May 2021.
Each of the parties filed submissions as to the subject matter of the interim hearing; on which they relied.
The alleged events to which the Applicant deposes as the bases for her application to reopen the proceedings are summarised below being:
(a)The Respondent continuing a pattern of not responding to communication from the Applicant’s solicitors; and
(b)The Respondent sending the Applicant numerous text messages on an almost daily basis with multiple text messages in one day, with those text messages being often accusatory and inflammatory and accusing the Applicant of making false allegations.
Each of the assertions as set out in paragraph 4 above are denied by the Respondent. Whilst counsel for the Applicant submitted on the hearing of the matter that the further evidence as filed by each of the parties would not require further cross-examination of either of them, senior counsel for the Respondent submitted that further cross-examination would be necessary and that her cross-examination of the Applicant was estimated to take at least half a day, and possibly one day. Additional to that, senior counsel submitted further submissions would be required, additional to those already before the Court.
The Applicant’s case to relocate with the parties’ children, Y born in 2015 and X born in 2017, proceeded as a contested matter before the Court over eight days from November 2020 until conclusion of the proceeding on 4 March 2021. Closing submissions were required to be filed thereafter by each of the parties.
During the course of the trial, the Applicant alleged factual matters of similar nature to those which she continues to allege in her affidavit affirmed 29 April 2021. That is, that there is a continuation of patterns between the parties in their engagement with each other or non-engagement as the case may be, which the Applicant asserts are actions of family violence on the part of the Respondent as perpetrated against her. She claims that all engagement, or non-engagement by the Respondent, causes her anxiety, stress, frustration and disruption. She continues to assert, as set out in paragraph 31 of her affidavit that:
There is no need for the frequency and repetitiveness of the communications. I realise that there will always have to be communication between us; however, much of it is unnecessary and provocative on Mr Menuhin’s part.
The Applicant’s case is that she needs to relocate her residence and that of the two children of the marriage to the State of Western Australia where she will have the support of her family and in particular, her mother. The Applicant further put in the running of the trial, and again in her affidavit evidence in support of her reopening of the evidence, that the Respondent’s lack of response to her solicitor’s letters, or lack of response in a timely way, is evidence and now further evidence of the Respondent’s attempt to exert control over her, which the Applicant claimed and continues to claim also supported her relocation application.
There was extensive cross-examination of the Respondent by the Applicant’s counsel in support of the assertions and allegations made by the Applicant, during the trial. These allegations and assertions continue in the Affidavit evidence recently filed by the Applicant. As submitted by senior counsel for the Respondent, it was also put as part of the Applicant’s case in her counsel’s cross-examination at trial of the Respondent, that the Respondent was inflammatory and accusatory in his conduct toward the Applicant in particular in the text messages he sent her. The Applicant’s case was, further, that the Respondent was unrelenting in his communications with her, for example, the argument between the parties about possible names for the baby on the evening before X’s birth.
Counsel for the Applicant sought to highlight, in the latest affidavit evidence of the Applicant, the parties’ arrangements for Mother’s Day 2021, in circumstances where the existing orders did not specifically make provision for the children to spend time with the Applicant on Mother’s Day. The Respondent’s response to the Applicant’s request that the children spend such time with her was met with a text from him as follows:
Dear Ms Menuhin
I refer to your previous SMS below “In relation to the earlier discussion regarding time in April, including the Easter weekend, the orders do not specifically make provision for holiday time, so the distinction is artificial …”
The orders stand.
Many thanks
Kind regards
Mr Menuhin
The Applicant asserts, in paragraph 12 of her Affidavit of evidence of 29 April 2021, that it was only when the husband was alerted to the fact that she would be filing the Application in a Case now before the Court, in part due to his attitude to Mother’s Day, that she received a text message from the Respondent:
…offering me the opportunity to spend time with the children on Mother’s Day, with the proviso that this be on a swap basis.
The Respondent’s response to the highlighted Mother’s Day incident is set out in paragraphs 11 and 12 of his Affidavit of evidence of 12 May 2021. In that evidence he denied the Applicant’s assertion that the Applicant acceded to his request that he have extra time with the boys on Easter Monday. His evidence was that her position was that he could spend Easter Monday with the boys only if he agreed for her to have the boys on Sunday, 18 April 2021. When the Applicant subsequently made a request on 23 April 2021 for Mother’s Day with the children, she did not propose any substitution of time with the Respondent, but rather, as he deposed:
…she simply expected that I would forego time with the boys. When I pointed out that, like Easter Monday, the current Orders did not make provision for special occasions, Ms Menuhin did not respond to my message and this matter was not raised by her again until the filing of her Affidavit. Ms Menuhin criticises me for doing the same thing she had done only 3 weeks prior with respect to Easter Monday.
None of the evidence contained in the affidavit of the Applicant describes new issues or circumstances that this Court needs to make findings about additional to those that are already before the Court. Since the conclusion of the trial, texts have been exchanged between the parties and disputes have arisen in the course of their ongoing daily parenting of the children. This is not unusual in the context of ongoing litigation still to be determined concerning parenting orders as sought by each of the parties.
Each of the parties has continued to parent their young boys in the manner that they think best promotes their interests, and the Court agrees with the submission of senior counsel for the Respondent that:
The wife continues her pattern of complaint and those complaints are identical to the issues she has maintained are important to her case.
The Law
The evidence the Applicant seeks to lead, is evidence going to the parenting orders she seeks. The evidence does not relate to the financial orders that each of the parties respectively seek. There is no matter raised in the affidavit evidence of the Applicant to reopen the evidence that satisfies the relevant considerations to reopen litigation.
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
The Applicant seeks to lead evidence in her reopening application that could not have been led by her at the trial, given that it is evidence in relation to exchanges had between the parties since the conclusion of the hearing on 4 March 2021. If the Applicant is successful in her application, then the litigation will not be finalised until after the reopened proceedings have been dealt with and any further submissions that are required to be filed, filed, and judgment delivered.
This, of course, only adds to the high conflict which exists between the parties which has the potential to impact adversely on the parties’ sons. It is important that these parenting proceedings be conducted without undue further delay and brought to finality as soon as is possible. Generally, the power to reopen should be exercised sparingly and with considerable circumspection in the case of parenting orders,[1] as was said by Murphy J.
[1]Suell & Suell (Re-opening) [2009] FamCA 55 at [89].
The evidence that the Applicant now seeks to adduce will not assist the Court in determining the paramount consideration, namely, the best interests of Y and X. The Court agrees with the submission made by senior counsel for the Respondent that that evidence will not affect the findings the Court may make in any substantial way. This is because it merely repeats the Applicant’s case already put forward. It is, rather, a provision of further examples of what the Applicant has said in the running of the case which she maintains are patterns of behaviour by the Respondent.
The submissions of the Applicant were that the updated material was in relation to confirming the pattern of not responding as a means of control. The Applicant claimed that the Respondent does not respond, but rather presses her for details which she tells him are irrelevant. The Applicant further claimed in submissions following the trial the Respondent’s continued use of repeated questions reveals:-
…the Husband’s unremittingly self-righteous and combative approach which includes, without being limited to, exaggerating the allegations against him.[2]
The Applicant highlights the Mother’s Day disagreement between the parties, claiming it goes directly to the Respondent’s attitude to parenting. She claims his attitude is clearly petulant and non-child centred. These assertions and alleged factual matters supporting them, are already before the Court to assist the Court in its determination of the best interests of the parties’ children.
[2] Applicant’s written submissions filed 17 May 2021 at paragraph [20].
This matter is one with already high litigation costs which are now further increased by this application. The proceeding has consumed eight days of court time, and written submissions have been prepared and the case closed for both parties. If the matter is reopened, whilst the Applicant’s counsel has indicated to the Court that the Applicant does not seek to cross-examine the Respondent as to the contents of his affidavit affirmed 12 May 2021, senior counsel for the Respondent indicated to the Court that she would cross-examine the wife as to the further evidence sought to be adduced by her and that such cross-examination will take some time.
Senior counsel submitted that such cross-examination would also be as to exactly the same matters previously cross-examined about, save differing and later‑in‑time examples of the same alleged behaviour. Senior counsel for the Respondent will ask the Court to make the same findings the Respondent has already asked the Court to make. Senior counsel submitted that the Applicant will be cross-examined again as to her propensity to complain the Respondent is controlling and overbearing of her, even though in the end she gets her way and that she fuels the disagreements by failing to respond to his reasonable questions of her.
In essence, the Applicant’s evidence goes, on her own submissions, to those matters already canvassed in the Applicant’s evidence and closing submissions. What the Applicant seeks to do is put further examples before the Court.
There is prejudice to the Respondent in such reopening, including the stress of ongoing litigation, the expense of same and the entitlement to expect finality in litigation. The Court is aware that the primary interests are those of the child. The impact of these proceedings being ongoing are also a prejudice to the children in this proceeding.
The Court does not consider that the evidence sought to be put before the Court by the Applicant will assist in the determination of the dispute between the parties. It is in the children’s best interests and that of their parents that this parenting litigation be finalised as soon as possible, “The discretion to admit further evidence…needs to be exercised with much care in parenting cases.”[3]
[3]See CDJ & VAJ [1998] FLC 92-828 at [117].
The Court has determined, in the exercise of its discretion, to not grant leave to the Applicant to reopen the proceeding. The Court finds that it would not be more able to do justice in the facts and circumstances of the case if the application was granted.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 26 May 2021
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