Seward and Klein (No.2)

[2019] FCCA 1410

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEWARD & KLEIN (No.2) [2019] FCCA 1410

Catchwords:
FAMILY LAW – Litigant complains of suppression of evidence and of forensic decisions made by her counsel - whether appropriate to reopen after final judgment – no evidence of suppression of evidence or other misconduct – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS SEWARD

Respondent: MR KLEIN

File Number: ASC 2 of 2018

Judgment of: Judge Young

Hearing date: 7 May 2019

Date of Last Submission: 7 May 2019

Delivered at: Darwin

Delivered on: 7 May 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In Person

Counsel for the Respondent: Ms Collier

Solicitors for the Respondent: Collier Lawyers

ORDERS

1. The application in a case filed by the mother on 29 March 2019 be dismissed.

2. The mother pay the father’s costs of today fixed in the sum of $400.00 within 42 days of the date of this order.

3. The mother must not without leave of the Court file any further applications in these proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Seward & Klein (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ASC 2 of 2018

MS SEWARD

Applicant

And

MR KLEIN

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application by Ms Seward who was the respondent to proceedings that were finalised by trial held in Alice Springs over three days on 13, 14 and 15 November 2018.  The issues in dispute were parenting issues and property issues and judgment was delivered on 22 February along with reasons.

3. On 29 March Ms Seward filed an application in a case which sought, as far as it made sense, to seek orders that she had sought on 28 February 2018; that the orders made on 22 February 2019 after trial be stayed and there be an extension of time - time for what not stated - on grounds that the husband withdrew from mediation  - what mediation is unclear. 

4. Secondly, she complains that:

   I have never sighted, consented to or agreed … with my solicitor to orders sought on my behalf prior to ... the trial.

   I think that is intended to be a reference an outline of case filed during trial.

5. Today, perhaps last night, she filed an amended application running over some 14 pages.  It was self-drafted and done without the benefit of legal assistance.  The orders sought cover a great variety of subjects.  She alleged that there has been a miscarriage of justice by reason of fraud, duress or suppression of evidence.  I asked what evidence she was referring to, and she referred to suppression of email evidence by her own solicitor that she said was relevant to the allegations she had made of family violence.

6. The allegations of family violence made by the mother were canvassed in detail at trial and there was evidence in cross-examination about them.  Findings were made.  There was, in fact, if I recall correctly, a finding of family violence made.  Throughout the trial the mother was represented by a competent and experienced solicitor-advocate who, as far as I could see, ran every argument that could be run on behalf of the mother and, indeed, ultimately, the mother succeeded in obtaining, in substance, the orders that she sought, that is, permission to relocate the residence of the children to Town A, Western Australia.

7. I asked her how the suppression of evidence, as she put it (and I do not accept there has been a suppression of evidence) affected the outcome of the trial and she said that it stopped her being permitted to relocate again.  What the mother is talking about, I am satisfied, is that she relocated to Town A because she was afraid of the father.  There was extensive consideration by the family consultant and by me in the trial of whether the basis for her fear was reasonable. I concluded that, while the fear was genuine, it was not reasonable.  In other words, it was misplaced.

8. The order permitting the mother to relocate was, of course, accompanied by a consideration of what would happen should the father relocate to the Town A region and orders were made should he do that.  That was always one of the issues in the trial.  He said would do that.  In my view, there was never a basis for an order along the lines of what the mother tells me today she really wanted which was an order that she be permitted to relocate wherever and whenever she liked with these children and that the father not be permitted to follow her.  That is, in substance, what she has been seeking and there was never a proper basis for such an order.

9. I do not propose to discuss each of the matters raised in the 14 pages of the amended application but, suffice to say, it covers a variety of grounds.  There are complaints about the mother’s solicitor and her conduct of the trial.  As I have said, it appears to me that her solicitor conducted the trial competently on her behalf and I saw nothing to suggest that that solicitor advocate was doing anything other than a competent job.

10. There are various other complaints about affidavits or not being able to rely on earlier affidavits.  This, of course, overlooks the fact that an order was made for the filing of a single trial affidavit as is standard in this Court.  There are various other complaints made including that, as I say, the mother says that she did not see beforehand the orders ultimately sought by her counsel.  The mother was present in Court and heard submissions. Whether or not she read the written submissions is, in my view, a matter between her and her lawyer.  It is not something this Court could enter into at this late stage.  She seeks her client file.  It seems to me that that is a matter for her to apply to her solicitors in the first place and if she cannot find satisfaction then, then she needs to take that issue to the Law Society of the Northern Territory. 

11. The mother also seeks other orders about the sharing of medical and school fees.  I do not recall whether that was a matter ventilated in the trial.  In any event, the orders made are final orders. If those matters have been overlooked (and I am not suggesting they have been) that is really a matter for the mother to raise with her solicitor or, if it is a result of error by this Court, on appeal. 

12. There are also complaints made about incidents of reports to the child welfare authorities not being given in evidence.  These are all matters, it appears to me, that relate to the running of the trial.  There are complaints that the Court has not operated the trial according to principles for conducting child-related proceedings dealing with cases of domestic violence.  Again, the remedy for the mother is an appeal to the Family Court. 

13. None of those matters have been dealt with in the mother’s affidavit in support.  Once I raised that with her she sought an adjournment to file a further affidavit.  In my view, the mother’s application is misconceived.  She is self-represented.  As I think is evident from her 14-page amended application, she is disgruntled with the outcome of the trial.  She has been unable, in the short period that I have dealt with the matter this morning, to point to any fraud or suppression of evidence that would have made any difference to the outcome of the trial, assuming there was fraud or suppression of evidence. 

14. Furthermore, I am satisfied that what the mother complains about are forensic decisions made by her counsel about what to include and what not to include.  Also, her complaint that she ought to have been permitted to rely on other affidavits is simply a complaint about the procedure adopted by this Court to have the parties rely on a single trial affidavit.

15. I am not satisfied that giving the mother further time to put on further affidavit material serves any purpose.  I think there is the likelihood of an interminable and costly and misdirected attempt at re-litigation of something that has been finalised.  I am satisfied that that is in substance what the mother is trying to do.  There must be an end to litigation, particularly in relation to children.

16. I propose to make an order that the mother, the applicant, pay the respondent’s costs having regard to the item at item 13 of schedule 1 of part 1 of the Federal Circuit Court Rules for a short mention, although it has been somewhat longer than a short mention as it has probably been at least 45 minutes. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 24 May 2019