Morris and Somers (No 2)
[2016] FamCA 809
•8 July 2016
FAMILY COURT OF AUSTRALIA
| MORRIS & SOMERS (NO 2) | [2016] FamCA 809 |
| FAMILY LAW – CHILDREN – Best interests – Application by the mother to re-open her case in respect of which judgment was reserved in December 2015 – Where final judgment has not yet been delivered in the substantive proceedings – Application opposed by the father and by the Independent Children’s Lawyer – Where the interests of justice require that the mother’s application be dismissed – Application dismissed. |
| Family Law Act 1975 (Cth) s 69ZN(1)(b) |
| CDJ v VAJ (1998) 197 CLR 172 Emmett & Emmett [2010] FamCA 56 Reid v Brett [2005] VSC 18 Smith v NSW Bar Association (1992) 176 CLR 256 |
| APPLICANT: | Ms Morris |
| RESPONDENT: | Mr Somers |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | SYC | 745 | of | 2009 |
| DATE DELIVERED: | 8 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 20 June 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Picker |
| SOLICITOR FOR THE APPLICANT: | Fedorov Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Somers in person |
| ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Shea |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
Orders
The oral application made on behalf of the mother on 20 June 2016 for leave to re-open her case to adduce further evidence, is dismissed.
Reasons for judgment in the substantive parenting proceedings heard on 30 November 2015 to 3 December 2015 inclusive, are published forthwith.
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 Morris & Somers (No 2) 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 SYDNEY |
FILE NUMBER: SYC 745 of 2009
| Ms Morris |
Applicant
And
| Mr Somers |
Respondent
And
Legal Aid New South Wales
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings about the child B, who is 11 years of age. The substantive dispute between his parents involves competing claims for sole parental responsibility and for residence. Each of the parents proposed that the child spend no time with the other parent. The important issues in the proceedings involve the risks for the child arising from mental health issues for the mother and substance abuse, anger management and violence associated with each of the parents.
The substantive proceedings were heard over five days commencing on 30 November 2015. On 3 December 2015, judgment was reserved.
On 20 June 2016 and before delivery of judgment in those proceedings the mother made an oral application for leave to re-open her case to adduce further evidence. That application is refused for the reasons that follow.
Applications
There is no formal application by the mother. The mother filed an affidavit that was executed on 3 June 2016. In that affidavit she set out the evidence she seeks to adduce in the proceedings, if leave is granted. The mother’s counsel sought leave to make an oral application for leave to re-open the mother’s case for that purpose and there being no objection, leave was granted.
Written Evidence
The applicant relied on her affidavit made on 3 June 2016.
The father opposed the granting of leave but he filed no evidence in support of his opposition.
The Independent Children’s Lawyer (“ICL”) also opposed the granting of leave and relied on no further evidence in relation to that opposition.
The Hearing
On 3 December 2015, at the conclusion of a five day parenting trial in these proceedings, interim orders were made and otherwise, judgment was reserved.
On 14 April 2016 the ICL gave notice to the Court and the parents of her request that the proceedings be relisted in relation to machinery orders to give effect to the mother’s supervised time with the child under Order 2 made on 3 December 2015. As a result the matter was listed on 21 April 2016 with notice being given to all parties on 19 April 2016. The parties were advised that unless otherwise ordered, judgment would be delivered in the final parenting proceedings on 21 April 2016.
On 21 April 2016 the mother appeared in person and the father and the ICL were represented.
As to the issue that caused the ICL to restore the matter to the list, it was conceded on behalf of the father that he had not completed and forwarded the intake form for the supervising agency, as required by the orders of 3 December 2015, until 20 April 2016. Ultimately there was an agreement to an order proposed by the ICL seeking to effect the commencement of the supervised sessions. The mother and the ICL also agreed, subject to the availability of the agency and to the written consent of the father, to the sessions under Order 2 made on 3 December 2015 being extended from two hours to three hours on each occasion.
On 21 April 2016 the mother was very upset when she addressed the Court. She indicated that she would seek that I be recused and presumably only in the event that I was not recused, that the ICL be removed from the proceedings; and that she be permitted to re-open her case prior to the delivery of judgment in order to address three categories of matters:
i.that the mother was not provided with any notice or adequate notice of the orders sought by the father in the substantive proceedings, was not served with the affidavit relied on by him and in any event, that affidavit was filed outside the terms of directions made for the filing of the parents’ evidence;
ii.that the Court and the single expert did not read all of the affidavits relied on by the mother, being every affidavit filed by her since 2009; and
iii.that since the conclusion of the trial there have been significant changes in the circumstances of the mother that would bear on the outcome of the proceedings.
The mother said that she anticipated instructing a barrister to act for her in relation to those issues and by arrangement with the parties and the chambers of that barrister, 20 June 2016 was identified as a suitable date for hearing any such application to be filed on behalf of the mother.
As a result of those matters, on 21 April 2016 the following orders and notations were made:
1. The proceedings are adjourned to 20 June 2016 for the purpose of hearing any application filed and served on behalf of the mother by the close of business on 6 June 2016, being an application seeking that:
i.the trial judge be recused; and in the alternative
ii.the wife be permitted to re-open her case in the proceedings which were the subject of a final hearing conducted on 30 November to 3 December 2015 inclusive; and in any event
iii.the ICL be removed
2.The father shall file and serve any response to such an application by the close of business on 15 June 2016.
3.The Court Noted that:
i.delivery of judgment in the substantive proceedings will be deferred to a date to be nominated after the determination of any application filed by the mother pursuant to order 1; and
ii.in relation to the mother’s supervised sessions with the child pursuant to order 2 made on 3 December 2015, the father did not complete the required intake form and forward it to the supervising agency until 20 April 2016.
4.By consent an order is made in terms of exhibit 1, as set out hereunder:
That each party as soon as practicable do all acts and things necessary including signing all documents and engaging in all intake procedures to enable time between the mother and the child to occur in accordance with order 2 of the orders made on 3 December 2015.
5.By consent of the mother and the ICL but subject to the availability of the supervising agency and the written consent of the father, the mother’s sessions with the child pursuant to order 2 of 3 December 2015 shall be extended to 3 hours on each occasion.
6.While the proceedings remain part-heard, any application filed by either party seeking that the other be dealt with for a contravention of orders is to be heard by a judge other than Justice Loughnan.
On 20 June 2016 the mother was represented by counsel, the father appeared in person (his lawyers having withdrawn on 26 May 2016) and the ICL appeared by her advocate. Despite Order 1 made on 21 April 2016, no application had been filed on behalf of the mother seeking any relief. Therefore the question of a response by the father, in accordance with Order 2 made on 21 April 2016, did not arise. The mother’s counsel sought leave to make an oral application for permission to re-open the mother’s case in the substantive proceedings. There was no opposition to the making of that oral application. The mother’s counsel said that her client did not intend to seek orders for recusal or to discharge the ICL. In relation to the application for leave to re-open, the mother’s counsel relied on the mother’s affidavit executed[1] on 3 June 2016. Submissions were made and judgment was reserved.
[1] It is not clear from the jurat whether the affidavit was sworn or affirmed
Short history
The mother was born in 1974 and is 41 years of age. The father was born in 1979 and is 37 years of age. They commenced their relationship in 2002 and started living together in 2003. They were married in 2004 and separated in 2007. The child B was born in 2004 and he is the only child of the parents’ relationship.
In 2012 the mother married Mr H however according to the mother they are now separated and live apart. The mother and Mr H have a son J who was born in 2012 and is three years of age.
Submissions
The mother
In relation to the application to adduce further evidence, the submissions made on behalf of the mother were as follows.
The key elements of the mother’s new evidence were that she has moved to Queensland, has separated from her husband, commenced psychological treatment, and has obtained paid employment. In addition, the mother has been prevented from spending time with the child in accordance with the interim orders.
It was submitted that all five of those matters arose after the trial in December 2015 and could not have been put before the Court. Thus, the issue of her diligence in putting the evidence forward is not applicable.
The Single Expert psychiatrist, Dr D, in her last report, was of the opinion that the father would nurture the relationship between the child and his mother, and his half-brother J. However, this has not occurred. It was submitted that all the matters that have occurred after 3 December 2015 might well be issues that should be taken into consideration before making a final judgment, and, some of those matters could be addressed in much greater detail if the mother is granted leave to re-open her case.
Counsel for the mother submitted that although a Rice v Asplund[2] submission is not appropriate given there is not yet a final judgment; there are changes in circumstance which prompt the mother to seek to re-open her case.
[2] A reference to a decision of the Full Court in Rice v Asplund (1979) FLC 90-725 where there is a discussion about changes of circumstances sufficient to justify a new hearing after final parenting orders
The ICL
The ICL opposed the mother’s application to re-open her case. It was submitted on behalf of the ICL that the principles to be applied in an application to re-open are well settled, and the onus is on the mother to satisfy the Court of those matters. Those principles are said to be:
i.That the further evidence is so material that the interests of justice require its admission;
ii.That the further evidence if accepted would probably affect the result of the case;
iii.That the evidence could not by reasonable diligence have been discovered earlier; and
iv.That there would be no prejudice to the other party by reason of admitting the later evidence.
In relation to those principles, the ICL made the following submissions with reference to the mother’s application:
· The evidence that the mother seeks to adduce would not affect the result of the case, even if it was accepted. That evidence is:
i.That she has moved to QLD;
ii.That she is no longer in a relationship with Mr H;
iii.That she has attended on two occasions upon a psychologist and is on the waiting list for a psychiatrist; and
iv.That the father is not the biological father of the child
· In relation to the last proposition it was submitted that the Court would have seriously doubts about the bona fides of that evidence, given how late it is being raised in these proceedings.
· The fact that the mother has moved houses is not meaningful, and is part of a pattern that was a major concern in relation to the mother’s parenting capacity. When the matter was before this Court in December 2015, the mother could not recall how many houses in which the child had lived in the six months prior to the trial. Therefore this relocation on the part of the mother is unlikely to impact the final orders made.
· As to the mother’s separation from Mr H, the ICL submitted that the evidence is not surprising, but, the breakdown of that relationship does not take away from the aggressive and volatile behaviour on the part of the mother in that relationship.
· In relation to the mother accessing psychological treatment, the ICL submitted that while her attendance for treatment was a positive thing in the circumstances, she has not previously complied with the recommendations of the single expert, Dr D in respect of undertaking ongoing psychiatric treatment and medication in relation to the treatment of either Bipolar Disorder or Borderline Personality Disorder. The submission was that the fact of the mother accessing treatment is a good thing, but that it is not sufficient to go towards this issue. Further, Dr D recommended at least six months of treatment before supervised time should be considered.
As to prejudice, it was the ICL’s submission that any such prejudice that would be encountered if the mother’s application was granted would be borne by the child, the child. Considering the duration of the proceedings in its totality, any further continuation is not in the child’s best interests. The ICL referred to Emmett & Emmett [2010] FamCA 56 where Watts J considered an application in similar circumstances. At paragraph 18 his Honour said as follows:
18. These proceedings are adversarial. A party is normally bound by the conduct of her case at trial whether or not she is legally represented. A Court has discretion to allow a party to re-open her case and to call further evidence. Ultimately whether or not that is allowed is a matter of overall justice to both parties to the proceedings…. Leave is not normally granted simply so that a party might bolster, with further evidence, an issue that was in dispute at the trial.
It was submitted that the mother’s recent participation in psychological treatment and perhaps her separation from Mr H, fall into the category of seeking leave to bolster her case with further evidence.
The father
The father indicated that he wanted the proceedings to come to finality. He said that the delay in a resolution is harmful to the child. He submitted that there is a repetitive sequence of events, presumably on the part of the mother, and that if this is to continue, it will have negative impacts on the child.
Discussion
The mother’s affidavit includes a number of complaints about the conduct of the trial and the preparation of the report of the single expert. Presumably those are matters going to issues other than the mother’s application to re-open her case. The mother’s affidavit seeks to reinforce the evidence or submissions made at trial, based on matters that were known to the mother prior to the trial and in some if not all instances, were included in the evidence relied on by her at trial.
Otherwise the categories of evidence contained in the affidavit and in respect of which the mother seeks leave to re-open her case are:
a) The mother believes that the father of the child is Mr PP and not Mr Somers;
b) Despite orders made on 3 December 2015, the mother has not spent any time with the child since the trial:
i.Based on a telephone call the mother made to Mr Somers on 20 December 2015, he tried to obtain an Apprehended Violence Order against the mother;
ii.Although the supervising agency indicated that it could proceed with the mother’s visits with the child, Mr Somers has frustrated the visits;
iii.The ICL has refused to file a contravention application to enforce the orders;
c) There have been significant changes in circumstances since the trial as:
i.The mother has moved to Queensland;
ii.The mother has commenced paid employment;
iii.The mother has severed her relationship with her husband, Mr H and is currently single;
iv.The mother has attended on two occasions upon a psychologist and is on the waiting list to consult a psychiatrist
d) The accommodation occupied by Mr Somers and the child is a shed that is close to the back fence of his parent’s property and is cramped;
e) Mr Somers denies that the child was diagnosed with autism;
f) B has expressed a wish to live with the mother and that he has been abused by Mr Somers;
g) If reunited with the mother, the child would also be reunited with his brother, J; and
h) The mother has work and personal references, deposing to her good character and parenting capacity.
The Legal position
In Reid v Brett [2005] VSC 18, Habersberger J of the Supreme Court of Victoria addressed the treatment of an application to re-open in proceedings where a trial had concluded but judgment had not yet been delivered. The relevant criteria identified in that decision as governing the Court’s discretion to allow a re-opening were:
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.
In Smith v NSW Bar Association (1992) 176 CLR 256 Brennan, Dawson, Toohey and Gaudron JJ at page 267 dealt with applications to re-open where judgment is reserved in the following terms:-
… 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. …
Relevant to appeals from decisions under the Family Law Act 1975 (Cth) (“the Act”) in parenting cases, in CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 98-828 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.
In CDJ v VAJ the High Court held that an application to admit further evidence was not itself a parenting order and therefore the requirement that the Court consider the best interests of the child or children as paramount, did not apply. However it went 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.
Section 69ZN(1)(b) of the Act establishes principles for conducting child-related proceedings inter alia in making other decisions about the conduct of child‑related proceedings. The principles are:
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Accommodating those matters, it falls to the mother to establish she should be allowed to re-open her case by reference to criteria including:
a.That the further evidence is so material that the interests of justice and in particular, the best interests of the child, require its admission.
b.That the further evidence if accepted would probably affect the result of the case.
c.That the evidence could not by reasonable diligence have been discovered prior to the close of the evidence in the trial concluded on 3 December 2015.
d.That there would be no prejudice to the other parties and to the child by reason of admitting the later evidence.
Dealing with the categories of evidence proposed by the mother under those headings:
That the further evidence is so material that the interests of justice and in particular, the best interests of the child, require its admission.
Evidence establishing that the father is not the father of the child would be material because much of the legislative pathway for parenting cases treats parents differently to non-parents. Importantly, the father of the child is a necessary party to the proceedings and if he can be identified, he has a right to be heard. That said despite seeking leave to adduce fresh evidence, the mother provides no evidence about the issue. She simply makes a bare assertion. I do not recall any reference to this issue by the mother during the trial, in her evidence or submissions.
The fact that the mother has not seen the child pursuant to the orders of 3 December 2015 is of concern in a general sense but I am not satisfied that the evidence is material to the final parenting decision.
The mother’s relocation to Queensland and the separation from Mr H are material topics. The mother has not set out much evidence beyond those bare facts. As to the move to Queensland she has referred to the number of bedrooms in the house that she now occupies but has not set out the names of the persons who occupy the house, nor the basis of her occupation. I note, however, that in the documents attached to the mother’s affidavit there is a statement from an unidentified person who says that he has known the mother since December 2015 when she started to rent a house on the property owned by him and his wife. Material they may be, but those facts go to provide further examples of the instability that has characterised the child’s life with the mother over recent years. Obviously, it will not be possible for the mother to demonstrate greater stability in her life by evidence of a move to Queensland. To the extent that the mother is able to give evidence about her new situation, the mother will not be able to give evidence of a meaningful history of safe and appropriate living arrangements.
The fact that the mother has commenced paid employment is of itself not material. Although the position is not identified in the body of the affidavit, there is a letter attached to the affidavit from the manager of a business which suggests the nature of the mother’s new role. It begs further questions about the conditions of that employment and any consequential arrangements made by her.
In relation to the mother accessing some level of psychological treatment, if the treatment is appropriate, is a welcome initiative. However, that evidence begs the question: why that was not done earlier? In any event the critical elements would be the basis, nature and outcome of any treatment, rather than the commencement of appointments.
The nature of the father’s accommodation is material but evidence was already before the court about that issue. I do not understand the mother to say that the father has changed accommodation since the hearing. Rather she wants to emphasise her submissions about that accommodation.
The assertion that the father denies that the child was diagnosed with autism is just that and not fresh evidence. Even if it was true, and evidence on the topic cannot be given in that form, there is no suggestion that the issue arises from something that happened after the trial.
In my view, the child’s wishes are not material in the context of this case. In any event the question of the child’s wishes was addressed during the trial. Again, there is no suggestion that the issue arises from something that happened after the trial.
The question of either party abusing the child is material to the proceedings. Of course that evidence cannot be given by bare assertion. It follows that any evidence on the issue could have been presented at trial.
The fact that if the child is reunited with the mother, he would also be reunited with his brother, J, is material but does not give rise to any proper basis for re-opening the mother’s case.
The fact that the mother has work and personal references, deposing to her good character and parenting capacity is not material. One document is dated from 2011 and could have been before the Court at the trial. The other two are dated after the trial but neither is material or probative. There can be little probative value in proceedings of this type, in unsworn supportive statements provided by acquaintances of either parent.
That the further evidence if accepted would probably affect the result of the case.
Without more, the mother’s statement about Mr Somers not being the biological father of the child, could not support any finding about the child’s paternity. The proceedings have been on foot since 2009 and the mother has consistently referred in her affidavits to Mr Somers as the child’s father. For example, see paragraph 10 of the mother’s affidavit sworn and filed 24 February 2015.
Even if probative evidence was available to support a finding that Mr Somers is not the father of the child, in my view that would not affect the outcome of the proceedings. It is hard to know what the evidence might be but the mother does not present evidence about notice being given to the putative father or about him having taken any meaningful part in the child’s life, let alone why he has not taken a role in these proceedings. The status of a parent is made relevant to the determination of parenting proceedings by the wording of key provisions in Part VII of the Act. However, because of the catch-all provision at s 60CC (3)(m) each of the issues taken up in the parent-specific criteria are available for consideration in respect of a non-parent. The exception to that relates to the primacy accorded to the benefit to a child of having a meaningful relationship with both parents. A finding that Mr Somers is not the father of the child, if the mother could provide the required evidence for such a finding and subject to the evidence about the real father, would mean that the importance of a meaningful relationship between Mr Somers and the child could still be taken into account but not as a primary consideration. In my view, without more, that fact is not likely to alter the outcome of the proceedings.
This is clearly not a matter in respect of which the mother could be allowed leave to re-open her case.
The fact that the mother has not seen the child pursuant to the orders of 3 December 2015 is unlikely to affect the outcome of the proceedings. The orders made on 3 December 2015 were made to address the impact on the child of the peremptory removal of the child from the mother’s care in the week prior to the trial. The timing of the orders demonstrates that they were not made as a part of the reasoning or as a condition precedent to the final parenting orders yet to be made.
The mother’s relocation to Queensland and the separation from Mr H are unlikely to change the result of the proceedings. As is referred to above they provide further examples of the instability that has characterised the child’s life with the mother over recent years.
Similarly, the fact that the mother has commenced paid employment is of itself or in combination with other facts, unlikely to affect the outcome of the proceedings.
The facts that the mother says she has commenced to consult with a psychologist and that she is on the waiting list to see a psychiatrist are unlikely to affect the outcome of the proceedings. There is the issue of why that was not done earlier. In any event the evidence should have included evidence from the treating practitioners about the conditions or problems for which the mother is to be treated, about the treatment plan and about the mother’s prognosis.
As I understand the situation, the father has not changed his accommodation. It follows that the mother’s evidence on the topic is unlikely to affect the outcome of the proceedings.
I do not understand the mother to be asserting that the father’s attitude to the child’s mental health has changed since the trial or that at the time of the trial she was unaware of his attitude in that regard. Evidence on this issue is unlikely to affect the outcome of the proceedings.
In my view the mother’s evidence about the child’s wishes could not affect the outcome of the proceedings. Those wishes were identified at trial as being consistent with the child remaining with the mother.
The issue of the child being affected by violence and abuse was the main subject matter of the trial and evidence of the mother is unlikely to affect the outcome of the proceedings. If the evidence is new evidence then there is the question of why it was not adduced during the trial and if it is old evidence, then it was before the Court at trial.
The fact that if the child is reunited with the mother, he would also be reunited with his brother, J is obvious and evidence to that effect could not affect the outcome of the proceedings.
The fact that the mother has work and personal references, deposing to her good character and parenting capacity could not affect the outcome of the proceedings.
That the evidence could not by reasonable diligence have been discovered prior to the close of the evidence in the trial concluded on 3 December 2015.
It is not clear when the mother discovered that Mr Somers was not the father of the child. Presumably, she could have discovered that fact by reasonable diligence prior to the trial.
The fact that the mother has not seen the child pursuant to the orders of 3 December 2015 could not have been discovered prior to the trial.
The move to Queensland and the separation from Mr H could not have been the subject of evidence prior to the trial.
The fact that the mother has commenced paid employment could not have been discovered prior to the trial.
The fact of the mother pursuing treatment after the trial could not have been the subject of evidence prior to the trial.
The nature of the father’s accommodation was known to the mother prior to trial and was able to be addressed in her case.
As I understand it, the assertion that Mr Somers denies that the child was diagnosed with autism does not arise from something that happened after the trial.
There is no suggestion that the child’s wishes have changed since the trial.
The evidence about either party abusing the child, substantially arose from events prior to the trial.
The fact that if the child is reunited with the mother, he would also be reunited with his brother, J is in reality a submission rather than something arising or something that was only discoverable, after the trial.
As to the work and personal references attached to the affidavit, one document is dated from 2011 and could have been before the Court at the trial. The other two are dated after the trial. The reference from the mother’s current employer could not have been provided and was not discoverable prior to the trial.
That there would be no prejudice to the other parties or the child by reason of admitting the later evidence.
These have been longstanding proceedings and they have no doubt taken a toll on both parties and the child. Let alone the arduous and difficult preparation of their cases and the long delays incurred by the parties, uncertainty is destabilising in itself and can cause stress and upset.
Allowing the mother to re-open her case for the evidence contained in her affidavit would involve the parties, including the taxpayer (in respect of the ICL), in further cost and delay. The other parties would need the opportunity to call any evidence in support of a case in reply to that evidence. All parties would need the opportunity to cross-examine the mother and the deponents of any evidence relied on by the other parties in reply. All of that would involve more cost, delay and stress.
Conclusion
Taken together, the interests of justice in this case require that the mother’s application to re-open her case be dismissed.
I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 8 July 2016.
Associate:
Date: 8 July 2016
Key Legal Topics
Areas of Law
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Civil Procedure
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Family Law
Legal Concepts
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Appeal
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Procedural Fairness
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Remedies
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