FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Saracuna & Siddele (No 4) [2023] FedCFamC1F 165
File number(s): SYC 7132 of 2018 Judgment of: MCCLELLAND DCJ Date of judgment: 20 March 2023 Catchwords: FAMILY LAW – PARENTING – Applicant father’s application to re-open the proceedings subsequent to final hearing – Where applicant father contends new evidence has probative value – Where the respondent mother herself seeks to re-open proceedings to adduce further evidence – Protracted litigation – Public interest in timely conclusion of litigation – Additional evidence does not take existing issues before the Court further – Tangential probative value or relevance – Applicant father’s application dismissed – Respondent mother’s application dismissed – Costs reserved. Cases cited: Australian Securities and Investment Commission v Rich (2006) 235 ALR 587; [2006] NSWSC 826
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Saracuna & Siddele (No 3) [2022] FedCFamC1F 915
Stephens & Stephens (2009) FLC 93-425; [2009] FamCAFC 240
Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 20 March 2023 Place: Sydney (via videolink) Solicitor for the Applicant: Mr Hamka, King & York Lawyers The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Mr MacDiarmid, 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:
20 MARCH 2023
THE COURT ORDERS THAT:
1.The applicant father’s Application in a Proceeding filed 3 March 2023 is dismissed.
2.The respondent mother’s Response to an Application in a Proceeding filed 17 March 2023 is dismissed.
3.The parties’ costs 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 JUDGMENTMCCLELLAND DCJ:
INTRODUCTION
The history of this matter is set out, in broad terms, in the ex tempore reasons for judgment I delivered on 16 November 2022.[1] Essentially, following a final hearing that was conducted between 8 and 11 August 2022, the mother was given leave to file written submissions and the father written submissions in reply. There were some weeks before that occurred. During the course of that time, the mother made an…
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CaseChat Overview and Summary
The court was required to decide whether the additional evidence should be admitted under the principles outlined in Stephens & Stephens (2009) FLC 93-425. These principles include the nature of the proceedings, whether the evidence should have been reasonably foreseen, the importance of the issue, the relevance and probative value of the evidence, the potential prejudice to the other party, the public interest in the timely conclusion of litigation, and the explanation for not presenting the evidence earlier. The father argued that the evidence was crucial to demonstrating the mother's parenting conduct and the parents' future communication capabilities. However, the mother and the ICL contended that the evidence was not central to the core issues in dispute, which included the child's vaccination and the parents' ability to make joint decisions.
The court found that while the evidence confirmed the ongoing disagreement between the parents about the child's vaccination and their ability to communicate, its relevance and probative value were relatively minor. The court emphasised that the evidence did not significantly advance the central issues that had been extensively argued. Consequently, the court ruled against admitting the additional evidence, considering the minimal benefit it would provide against the potential disruption to the proceedings and the public interest in concluding litigation promptly.
The court's decision was grounded in the principle that any decision affecting a child's welfare should be approached with careful consideration of its implications for the child, as underscored in CDJ v VAJ (1998) 197 CLR 182. The court concluded that reopening the proceedings to admit the additional evidence would not sufficiently advance the resolution of the key issues, and thus, it was not in the best interests of the child to do so. The court maintained the closure of the substantive proceedings, preventing the admission of the father's additional evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The relevant principles in respect to an application to re-open proceedings is set out in the matter of Stephens & Stephens (2009) FLC 93-425 (“Stephens”), which is a decision of the Full Court of the Family Court of Australia (as it then was) and in turn cross refers to Australian Securities and Investment Commission v Rich (2006) 235 ALR 587. I was helpfully referred to that authority by the Independent Children’s Lawyer (“ICL”) in the course of the November proceedings, during which I summarised the relevant principles at [9] of my ex tempore reasons as follows: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. CONSIDERATION The ICL has provided a very helpful outline of contentions that he is making in these proceedings and the mother supports those contentions. The father contends that the mother has arranged for the child to have a single dose of the COVID-19 vaccination administered to her, shortly prior to the November 2022 hearing. The mother concedes this in her affidavit at paragraphs 2 and 14, but nonetheless states, in that affidavit, that she continues to oppose the further administration of any additional COVID-19 vaccinations to the child. The reasons for the mother’s opposition to that occurring are set out in paragraphs 10 and 11 of her affidavit, which are also identified by the ICL at paragraph 2 in his case outline:10.…there was a high risk that the court would permit [the father] to have [the child] administered both doses of COVID-19 injection.11.…that [the father] would do so at a time and in such a way that there would be no opportunity, in a timely manner, for me to provide to her either physical or emotional support (as well as not doing so himself), by which the risk of resultant physical or emotional harm to her from the injection could be minimised. Having regard to the evidence tendered by the parties for the purpose of today’s proceedings, even though the mother has taken the child to receive the first dose of the COVID-19 vaccination, the administration of any further vaccinations remains a live issue in the proceedings. The mother continues to oppose the father having responsibility for those vaccinations and, in particular, according the father’s evidence as given in the substantive proceedings, his desire to follow the guidance of Dr C, the child’s paediatrician, in respect to whether those further vaccinations occur.