Shinohara & Shinohara - [2024] FedCFamC1F 859

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shinohara & Shinohara [2024] FedCFamC1F 859

File number MLC 6309 of 2023

Judgment of WILSON J

Date of judgment 6 December 2024

Catchwords FAMILY LAW – PRACTICE & PROCEDURE – application by mother for leave to adduce further evidence after evidence has closed – application to reopen case – prejudice to the respondent and ICL the grant of the application to reopen outweighs the probative value in reopening the case – application dismissed.

Legislation Family Law Act, ss 60CC, 102NA

Cases cited
CDJ v VAJ (1998) 197 CLR 172

Dasreef v Hawchar (2011) 243 CLR 588

Hearne & Street (2008) 235 CLR 125

Honeysett v R (2014) 253 CLR 122

Lang v R (2023) 95 ALJR 758

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Division Division 1 First Instance

Number of paragraphs 25

Date of last submission 6 December 2024

Date of hearing 6 December 2024

Place Melbourne

Counsel for the applicant The mother in person

Counsel for the respondent Mr T. Hutchings

Solicitor for the respondent Blackwood Family Lawyers

Counsel for the ICL Ms J. Swann

Solicitor for the ICL Barbayannis Law
ORDERS

MLC 6309 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN
MS SHINOHARA

Applicant

AND
MR SHINOHARA

Respondent

INDEPENDENT CHILDREN'S LAWYER

Intervener

ORDER MADE BY

WILSON J

DATE OF ORDER

6 DECEMBER 2024

THE COURT ORDERS THAT –
1.Leave to reopen the case and to adduce further evidence by the applicant is dismissed.
2.All parties' costs of today 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym Shinohara & Shinohara has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J

This application has been convened in urgent circumstances at the request of the mother following the close of the evidence in the trial of this proceeding. The trial ran for five days. Prior to final addresses, scheduled to take place later in the month of December, a program was ordered for the sequencing of final addresses the last of which is to be conducted on 20 December.
The skirmish before me today began when the registry of this court received an application in a proceeding prepared by the mother without leave in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shinohara & Shinohara

Details

AGLC: Shinohara & Shinohara [2024] FedCFamC1F 859
Case: [2024] FedCFamC1F 859
Decision Date: 6 December 2024

CaseChat Overview and Summary

Ms Shinohara sought leave to reopen the proceedings to adduce further evidence in relation to a family law matter. The Federal Circuit and Family Court of Australia was asked to determine whether the application to reopen the case and adduce further evidence should be granted. The central issue before the court was whether the potential prejudice to Mr Shinohara, the respondent, and the independent children's lawyer outweighed the probative value of the proposed new evidence.

The court considered the relevant legal principles and precedents concerning reopening cases and the admissibility of new evidence. It evaluated the probative value of the proposed new evidence against the prejudice to the respondent and the independent children's lawyer if the case were reopened. The court found that the prejudice to the respondent and the independent children's lawyer in reopening the case significantly outweighed the probative value of the new evidence. Consequently, the application to reopen the case and adduce further evidence was dismissed.

The court's decision was grounded in the need to balance the probative value of the new evidence against the potential prejudice to the parties involved. Given the findings, the court dismissed the application, reserving the costs of the proceedings for determination at a later date.

Orders

Orders of the court

MLC 6309 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS SHINOHARA

Applicant

AND

MR SHINOHARA

Respondent

INDEPENDENT CHILDREN'S LAWYER

Intervener

ORDER MADE BY

WILSON J

DATE OF ORDER

6 DECEMBER 2024

THE COURT ORDERS THAT –

1. Leave to reopen the case and to adduce further evidence by the applicant is dismissed.

2. All parties' costs of today 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number	MLC 6309 of 2023
Judgment of	WILSON J
Date of judgment	6 December 2024
Catchwords	FAMILY LAW – PRACTICE & PROCEDURE – application by mother for leave to adduce further evidence after evidence has closed – application to reopen case – prejudice to the respondent and ICL the grant of the application to reopen outweighs the probative value in reopening the case – application dismissed.
Legislation	Family Law Act, ss 60CC, 102NA
Cases cited	CDJ v VAJ (1998) 197 CLR 172 Dasreef v Hawchar (2011) 243 CLR 588 Hearne & Street (2008) 235 CLR 125 Honeysett v R (2014) 253 CLR 122 Lang v R (2023) 95 ALJR 758 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Division	Division 1 First Instance
Number of paragraphs	25
Date of last submission	6 December 2024
Date of hearing	6 December 2024
Place	Melbourne
Counsel for the applicant	The mother in person
Counsel for the respondent	Mr T. Hutchings
Solicitor for the respondent	Blackwood Family Lawyers
Counsel for the ICL	Ms J. Swann
Solicitor for the ICL	Barbayannis Law

MLC 6309 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN	MS SHINOHARA Applicant
AND	MR SHINOHARA Respondent
INDEPENDENT CHILDREN'S LAWYER Intervener

ORDER MADE BY	WILSON J
DATE OF ORDER	6 DECEMBER 2024