Saracuna & Siddele (No 3)
[2022] FedCFamC1F 915
Federal Circuit and Family Court of Australia
(DIVISION 1)
Saracuna & Siddele (No 3) [2022] FedCFamC1F 915
File number(s): SYC 7132 of 2018 Judgment of: MCCLELLAND DCJ Date of judgment: 16 November 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where the Court required clarification of the material relied upon by the parties – Mother granted leave to rely on written submissions provided out of time – Where the mother filed an Application in a Proceeding seeking to re-open the proceedings to adduce fresh evidence – Mother seeks to rely on a further affidavit affirmed after the conclusion of the final hearing – Re-opening proceedings would involve considerable delay and significant prejudice to the father – Against public interest – Mother’s Application in a Proceeding dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68) Cases cited: Australian Securities and Investment Commission v Rich (2006) 235 ALR 587; [2006] NSWSC 826
Rice and Asplund (1979) FLC 90-715; [1978] FamCA 84
Stephens & Stephens (2009) FLC 93-425; [2009] FamCAFC 240
Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 16 November 2022 Place: Sydney (via videolink) Counsel for the Applicant: Mr Livingstone Solicitor for the Applicant: King & York Lawyers The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Mark MacDiarmid Family Law Specialist ORDERS
SYC 7132 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SARACUNA
Applicant
AND: MS SIDDELE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
16 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The respondent mother’s Application in a Proceeding filed 15 November 2022 is dismissed.
2.The respondent’s affidavit dated 10 August 2022 that forms part of Exhibit A be replaced with the respondent’s affidavit dated 10 August 2022 and sent to Chambers and all parties on 10 October 2022.
3.Leave is granted to the respondent to rely upon her written submissions provided 7 October 2022 and the letter from NSW Revenue dated 19 August 2022 attached to her submissions as annexure “MS-S1B”, which is marked Exhibit “M” in the proceedings.
4.Within 7 days of the date of these orders, the applicant father is to file and serve written submissions as to his oral application for costs of today’s hearing of no more than two (2) pages.
5.Within 7 days of receipt of the applicant’s submissions in Order (4) above, the respondent mother is to file and serve written submissions in reply as to costs of today’s hearing of no more than (2) pages.
6.The costs of the Independent Children’s Lawyer of today’s hearing are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saracuna & Siddele has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTDEPUTY CHIEF JUSTICE MCCLELLAND:
This matter was listed for hearing to consider the respondent, Ms Siddele’s application for leave to rely on submissions filed out of time. The circumstances in which that occurred was that this matter was listed for final hearing before me between 8 to 11 August 2022. At the conclusion of the proceedings, the respondent requested and was subsequently granted leave to file written submissions. An order was made permitting that to occur, with those submissions being due on 5 September 2022. That time was extended to 16 September 2022 by consent, with the applicant to reply to those submissions by 23 September 2022. In fact, the submissions of the respondent were sent by way of correspondence on 7 October 2022, considerably after the extension period that had been granted to her. Despite this, the respondent was granted leave to rely on those submissions filed, or rather provided by way of email, out of time on 7 October 2022.
On 10 October 2022, the respondent sent a further email to chambers attaching an affidavit dated 10 August 2022, which had been tendered in the proceedings and became part of Exhibit “A” in the proceedings. In today’s proceedings, it was clarified that the affidavit dated 10 August 2022 attached to the email of 10 October 2022, by way of summary, clarified annexures that were not attached to the original document which formed part of Exhibit “A” in the proceedings. The parties, to their credit, did not object to the Court receiving the corrected annexures and the Court will order that the affidavit dated 10 August 2022 that became part of Exhibit “A” will be replaced by the affidavit provided by the respondent as attached to her email of 10 October 2022.
An objection is taken by the applicant, however, to an annexure to the respondent’s submissions, which is a letter from New South Wales Revenue Commissioner of Fines and Administration dated 19 August 2022 that clearly postdates the hearing. The respondent seeks to rely on that letter. It relates to a fine numbered … issued for the offence “fail to comply with noticed direction in relation to section 7/8/9 – COVID-19 – individual issued on 21 August 2021”. In circumstances where the applicant opposes the receipt of evidence that postdates the hearing, the Independent Children’s Lawyer (“ICL”) contends that it would be inappropriate for the Court to grant leave for that letter to be tendered.
Having considered the letter, however, it essentially completes the circle in respect to the final exhibit tendered in the proceedings, which was a New South Wales Police record dated 21 August 2021. Although it relates to the collection of a fine rather than in respect to the police action, the letter essentially completes the evidentiary loop of those events. I therefore propose to grant leave to the respondent to rely upon that letter, which will become Exhibit “M” in the proceedings.
Additionally, the respondent has sought to rely on an affidavit that was filed yesterday, 15 November 2022, and to seek orders in accordance with an Application in a Proceeding also filed yesterday. Those orders are as follows:
1.An order by the court that the proceedings be re-opened for the admission and ventilation of fresh evidence that was not available during the hearing in August 2022
2.An order by the court that the reports provided to the Court by [AG Organisation] be released to the parties for possible adduction as further evidence in the proceedings.
3. An order by the court that the Father provide written undertakings:
i.not to attempt to use the child as a medium to make or change any care arrangement, and
ii. not to ask or pressure the child to keep secrets from the Mother, and
iii.not to intrude upon the mother’s care time with the child without first obtaining written permission from the Mother, and
iv.to provide the child with full privacy during her electronic communications with the Mother
4.An order by the court that, during the school term, the Mother’s care of the child every second weekend be increased to three out of four weekends, or in the alternate, two out of every three weekends.
5.An order by the court that, during the school term, the Mother have care of the child between the end of the school day and 7:30pm on each Thursday or (alternatively) Friday that falls prior to each weekend that the child is in the Father’s care.
(As per the original)
I do not make propose orders 3, 4 and 5 because they are substantive orders relating to parenting arrangements. The parenting arrangements are the subject of the parties’ respective applications that I considered during the course of the proceedings. If, at a subsequent point in time, either or both of the parties consider that any orders arising from the proceedings require variation, they have a right to apply for such variation subject to satisfying the requirements of the well-known authority of Rice and Asplund (1978) 6 Fam LR 570 (“Rice and Asplund”).
The Court considered the respective positions of the parties on 8 to 11 August 2022. In those circumstances it would be inappropriate for me to consider making orders as sought by the respondent for an entirely different spectrum of orders in respect to the matters set out in her Application in a Proceeding. To do so would require the reopening of the case both in an evidentiary sense and also for the purpose of receiving additional submissions.
I now consider the respondent’s proposed Order 1, which is that the Court grant leave to reopen the proceedings for the purpose of receiving the affidavit of the respondent that was filed yesterday.
The ICL has helpfully referred me to a decision of the Full Court, Stephens & Stephens (2009) FLC 93-425, where the Full Court referred to the case of Australian Securities and Investment Commission v Rich (2006) 235 ALR 587 and noted that the Court, in considering whether to receive fresh evidence after proceedings have closed, is assisted by having regard to the following matters:
(1)The nature of the proceedings;
(2)Whether the occasion for calling further evidence ought reasonably have been foreseen;
(3)The importance of the issue on which the further evidence is sought to be adduced;
(4)The degree of relevance and probative value of the further evidence;
(5)The prejudice to the other party;
(6)The public interest and the timely conclusion of litigation; and
(7)The explanation offered for not having called the evidence.
Addressing (7) first, the explanation provided is that the evidence relates to events that have occurred subsequent to the hearing. I accept that the evidence was not available at the time of the hearing. It is significant that these are parenting proceedings and the Court endeavours to make orders based on the best available evidence in such proceedings. Equally, there are authorities of the Court, including by reference to Rice and Asplund and cases referred to in that decision, that ongoing litigation regarding parenting matters is not in the interests of children.
In balancing those two considerations I note that, save for the last two weeks where the father’s solicitor had been unavailable due to personal circumstances, the delay in the proposed tender of this additional evidence has been entirely due to delay on the part of the mother.
In terms of the importance of the issue, the mother has said and repeatedly says that these are parenting proceedings and highly significant, obviously, not only to the parties but also to the child. That is, indeed, the case. Each and every parenting proceeding is an important proceeding but there comes a time when the proceedings should be concluded, in the interests of the parties, the child and also other litigants before the Court.
I next consider the potential relevance and probative value of the further evidence. In her affidavit setting out the proposed further evidence, the mother relays conduct which she contends occurred on the part of the father and expresses her opinion regarding the motivation for and the significance of that conduct.
Much of the affidavit is highly controversial. For instance, at paragraph 45 the mother states:
Mr [Saracuna] continued to slander me in his further email and make false allegations. In my view, it is an attempt to deceive or mislead the court if the information is used in evidence.
Accusing the father of very serious conduct which would require not only a reopening of the proceedings for the purpose of receiving this evidence, but a reopening of the proceedings for the purpose of the mother being cross-examined in respect of the assertions she makes and for the purpose of the husband being able to present fresh evidence in reply. It would necessarily involve considerable delay for that evidence to be prepared and for further dates to be found in the Court’s schedule.
This means that the matter would not be heard until at least the commencement of next year. That would be an unsatisfactory outcome for the parties and the child.
Additionally, having regard to ss 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the Court, in conducting its business in accordance with the overarching purpose, is required to have regard to not only the interests of justice between the parties to this litigation, but also its impact on the business of the Court and the impact on other litigants. At the hearing of this matter between 8 and 11 August 2022, the parties were given every opportunity to present the evidence upon which they relied.
The father had filed his affidavits in a timely manner prior to the hearing to give sufficient opportunity for the mother to respond to that evidence. Judgment in respect to that hearing has been reserved pending clarification of the documents that the parties are relying upon. It would be contrary to the public interest in the timely conclusion of litigation to reopen the proceedings for the mother to submit the additional affidavit material upon which she intends to rely.
Further, in having regard to the public interest, I note that my admission of the material that the respondent seeks to rely upon would cause significant prejudice to the father and that prejudice, as I have indicated, could not be addressed without reopening the proceedings as a whole, including the presentation of evidence, cross-examination and submissions. It would substantially re-run the hearing that has already taken place.
Having regard to those maters to which I have referred, I therefore dismiss the respondent’s application for proposed Order 1.
Proposed Order 2 seeks an order by the Court that the reports provided by AG Organisation be released to the parties for possible “adduction” as further evidence in the proceedings. The respondent contends that she was denied an opportunity to review and present evidence in respect to those reports. I have briefly, in the short time available, considered the transcript where there has been a reference to the records of AG Organisation and on the basis of the search I have conducted, I am not satisfied that there has been any unfairness that has occurred to either party. However, if it is the case that such an unfairness has occurred and it is the case that either party is dissatisfied with the outcome of the proceedings, they have available such appeal rights as they may consider it appropriate to exercise.
On that basis, I dismiss the respondent’s application for proposed order 2 and hence I dismiss her Application in a Proceeding filed 15 November 2022.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 8 December 2022
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