Shinohara & Shinohara
[2024] FedCFamC1F 859
•6 December 2024
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 which she sought leave for her to adduce further evidence. I required the registry to refer the application to me for further consideration and as a result today's application was convened.
The mother swore an affidavit in support made 26 November in which she exhibited a letter addressed to my associates, 26 November 2024, purporting to record why certain documents had not been adduced in evidence during the running of the trial. During the running of the trial the mother was represented by counsel and his instructing solicitor both of whom had been retained pursuant to the provisions of s 102NA of the Family Law Act. Counsel for the mother did a commendable job in the circumstances he faced. Counsel was required to absorb a very substantial volume of documentation and then to harness that information and present it at trial.
As it happened, in addition to the trial affidavit of the mother, at least four lever arch folders (euphemistically described as tender bundles) were prepared indicating documents that the mother thought might be appropriate to somehow get before some witness under cross‑examination. A very small smattering of the documents extracted from the tender bundle actually were put to witnesses in cross-examination and became exhibits in the case.
Otherwise the mainstay of the mother's evidence in support of her contentions in the case were documentary exhibits exhibited to her trial affidavit. During discussions today the mother informed me that she drafted the affidavit on which she relied as a trial affidavit although it was settled by counsel, the extent to which counsel was involved in that settling process I am unable to say.
The trial was conducted while the mother had legal representation. Shortly after the close of the evidence and prior to the dates for the presentation of final addresses being agreed the mother terminated the retainer of her solicitor and barrister, appearing herself today before me. She needed leave to reopen the proceeding in order to achieve what she wanted to achieve, namely, the grant of leave to adduce further evidence.
It is not axiomatic that a litigant who asks for leave to reopen the case obtains that leave. Ordinarily an explanation is required as to why the application is brought and why the information was not adduced at trial. Other considerations for the grant of the leave have been explained by the High Court in CDJ v VAJ.[1] Among them is an observation that prejudice will be occasioned to the person who seeks the leave to reopen the case unless that leave is granted.
[1] (1998) 197 CLR 172.
A great deal of time this morning was taken understanding the nature of the documents that the mother seeks leave to adduce if the case is reopened and why she did not adduce that evidence during the running of the trial and the prejudice that might be occasioned to her by the refusal to adduce that evidence even at this late stage of the proceeding. The mother filleted the schedule of her affidavit, 26 November 2024, which set out a large volume of documents. She synthesised the request to adduce new evidence in respect of 11 documents only.
It is necessary to go to them to understand whether they advanced in any meaningful way any aspect of the case that the mother is agitating in this proceeding. At this point it is important to record that the mother has further amended her initiating application with leave to now include her application that she has sole parental responsibility and decision-making responsibility for the children. She has also sought various alterations to the configuration of time.
What was to be paragraph 46 being a release from the undertaking conferred by Hearne v Street[2] is not pressed because according to the mother orders were made by the ART in December 2024, in respect of those documents. In other words, paragraph 46 is no longer being pressed consequent upon those ART orders. Returning to the documents that the mother says she needs to be admitted into evidence without which her contentions in this case are incomplete, the first two were documents prepared by the local healthcare nurses.
[2] (2008) 235 CLR 125.
The first of those two documents is not easy to understand because it appears to be staccato notes in typed form recording various observations at various times in the formative years of the life of one child. The mother seemed to want to connect the information in that document to an assertion that she says she will make that the children at the time recorded in the two documents revealed that each was progressing satisfactorily in their growth at the relevant time with particular emphasis on behavioural attitudes.
In this case there is a plethora of evidence about the children, their emotional development, their behaviour and a psychological construct of the information that the relevant psychologists have observed. I am unable to see how the information recorded by the relevant council employee in the two documents that the mother wishes to now use provides evidence of a probative matter that addresses the best interests of the children. That is a prospective consideration. While historic information may be important, the events in these two documents are so long in the past that it is difficult to see the probative value warranting the reopening of the case to introduce those. On that basis the information from the local council in respect of the one child covered in the two documents does not take the matter meaningfully in any particular direction such as to warrant the grant of leave to reopen the case.
Next are two documents from B Health Service, online referral form. Each is dated 6 June 2023. The mother contended that the document is relevant because it contains a fleeting reference to "psychological trauma" allegedly suffered by the children as at the date of the writing of the report. It seems to me that whatever information might have underpinned the conclusion "psychological trauma" recorded in the document is better given by a witness whose qualifications can be understood as indicating the capacity to give the relevant psychological evidence in accordance with High Court cases such as Dasreef Pty Ltd v Hawchar,[3] Honeysett v R[4] and Lang v R[5] along with the decision of the Court of Appeal of the Supreme Court of New South Wales in Makita (Australia) Pty Ltd v Sprowles.[6]
[3] (2011) 243 CLR 588.
[4] (2014) 253 CLR 122.
[5] (2023) 95 ALJR 758.
[6] (2001) 52 NSWLR 705.
I am unable to see how the one-line reference to "psychological trauma" appearing in both of those documents from B Health Service would meaningfully impact on the future direction of the case. Put slightly differently, if the evidence in the documents B Health Service were not received by me, other and better evidence of a psychological nature exists about the psychological state of the children as at a given date rendering the document for which leave to reopen is being sought overtaken by events.
Next is a collection of documents written by the witness Ms C. She sent emails on a variety of dates, the first 25 January 2022, next 14 February 2022, next 15 February 2022 and last 22 August 2023. Ms C gave extensive viva voce evidence in this case. Her evidence was far‑reaching and far-ranging. It included evidence about D Family Violence Service and interactions between the father and Ms C.
The documents that the mother wants now to introduce into evidence do not go in any way that detracts from or qualifies the viva voce evidence given by Ms C. I am unable to see how the adduction of the four documents sought in this leave to reopen application meaningfully advances matters. I refuse the reopening on the basis of those letters.
Another document from Ms C is an email 23 June 2023 from the father to Ms C. It covers matters that were the subject of Ms C's viva voce evidence. Like so many of the other documents in this case they were available to be put to Ms C but were not. I can only assume that a forensic decision had been made to not put the documents to Ms C. The mother agreed with me that parties are bound by the way their case is conducted. That concession was properly made and aligned with High Court authority on point.
I can assume that Mr E of counsel made a forensic decision to not adduce those documents or they may have been among the four folders of documents called tender bundles or the documents were produced after the relevant witnesses had given evidence in the witness box and the information on the document is not of such moment as to warrant the grant of the application to reopen a case.
Next is a document representing a screenshot of communications between each parent that addresses matters that seem to relate to COVID issues. I am unable to see how the introduction of that document into the volume of documentary evidence in this case will be pivotal or even useful in the determination of the case. In any event the screenshots reveal that the parties themselves were the authors of the document so why the documents were omitted from the relevant trial affidavits was not explained.
The final document is dated 12 March 2024. A simple read of it indicates that one of the children is purporting to record a state of emotion of the child as at the date it was written. Other evidence in the case more powerfully demonstrates the evidence that I am required to consider under s 60CC(2). I am not persuaded that in accordance with the principles set out in CDJ v VAJ leave to reopen the case should be granted with a view to adducing or admitting those documents that I have just narrated into evidence.
It must not be forgotten that the trial has already run for five days at considerable expense, mostly to the public purse. I agree with Mr Hutchings of counsel and Ms Swann of counsel when they say that the prejudice to their respective clients in the grant of the application to reopen far outweighs the probative value in ordering the reopening of the case. There is a veritable mountain of documentation in this case which will enable me to make decisions in accordance with the relevant legislative strictures, in particular the May 2024 amendments to section 60CC.
In those circumstances I will not make an order granting the application in a proceeding for leave to reopen the case.
I refuse leave to reopen the case and I otherwise reject the documents that the mother has asked to be admitted into evidence.
The case will be decided on the evidence as it presently stands and the orders previously made for the presentation of final addresses stand, as well.
All parties' costs of today are reserved.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 12 December 2024
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