Simpson & Simpson (No 2)
[2025] FedCFamC2F 903
•3 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Simpson & Simpson (No 2) [2025] FedCFamC2F 903
File number(s): HBC 1044 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 3 July 2025 Catchwords: FAMILY LAW –PRACTICE & PROCEDURE – application by the wife for leave to reopen for purpose of adducing further evidence after the close of the final hearing – where closing submissions were agreed to be made in writing – where judgment on the substantive application was reserved – leave to reopen granted on a limited basis to adduce specific documents – leave granted to the husband to adduce confined evidence in rebuttal to alleviate possible procedural unfairness Legislation: Family Law Act 1975 (Cth) ss 79, 95, 95(1)(d)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.20
Cases cited: McDermott & McDermott and Ors [2016] FamCA 613
Tsiang & Wu (No 2) [2023] FedCFamC1F 23
Division: Division 2 Family Law Number of paragraphs: 53 Date of hearing: 18 June 2025 Place: Hobart For the Applicant: In person Counsel for the Respondent: Mr McKenna Solicitor for the Respondent: FitzGerald & Browne ORDERS
HBC 1044 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SIMPSON
Applicant
AND: MR SIMPSON
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
3 JULY 2025
THE COURT ORDERS THAT:
1.Leave is granted to the Applicant Wife to reopen her case for the limited purpose of tendering:
(a)A job advertisement with B Company, disclosed 28 May 2025;
(b)An undated email from C Company private health insurer regarding rebates for item code …; and
(c)Fee estimates from Dr D, plastic and reconstructive surgeon, dated 11 June 2025.
2.The Application in a Proceeding filed 10 June 2025 is otherwise dismissed.
3.The Respondent Husband is granted leave to file and serve an affidavit limited to four A4 pages (not including annexures) in rebuttal of the evidence contained in the documents referred to in Orders 1(b) and 1(c) of these Orders, such leave to be exercised by 5:00pm on 24 July 2025.
4.By 5:00pm on 7 August 2025, the Respondent Husband file and serve written closing submissions specifically particularising what he submits as:
(a)The total reasonable and necessary expenses of the Applicant Wife;
(b)The income and earning capacity of the Applicant Wife; and
(c)The capacity of the Respondent Husband to meet a spousal maintenance order.
5.By 5:00pm on 21 August 2025, the Applicant Wife file and serve written closing submissions specifically particularising what she submits as:
(a)The total reasonable and necessary expenses of the Applicant Wife;
(b)The income and earning capacity of the Applicant Wife; and
(c)The capacity of the Respondent Husband to meet a spousal maintenance order.
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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On 13 November 2024, the Applicant Wife Ms Simpson (“the wife”) filed an Application for Final Orders seeking that the Respondent Husband Mr Simpson (“the husband”) pay her spousal maintenance for a period of two years from 30 September 2024 and that he continue to pay for a private health insurance policy covering her and their two children Mr E, aged 18 years, and X, aged 16 years.
I conducted a final defended hearing on 30 May 2025 (“the defended hearing”), at which time the husband was represented by counsel and the wife was self-represented. Both parties were cross-examined, and both tendered documents into evidence.
Both parties had closed their cases and I reserved judgment pending consideration of written closing submissions, in respect of which a timetable for filing was given.
On 10 June 2025, prior to the filing of closing submissions, the wife filed an Application in a Proceeding (“the AIP”) seeking:
1.That the hearing of this matter be reopened for the limited purpose of admitting additional documentary evidence that has already been agreed upon by the parties.
2.That the [wife] be permitted to call on witnesses in regard to the material to support the application.
3.That leave be granted to execute these steps to not unduly protract the [finalisation] of this matter beyond the current timetable in light of planned surgery of the [wife].
THE HEARING TO REOPEN
The AIP came before me on 18 June 2025 for hearing (“the hearing to reopen”). The parties’ representation remained as it had at the defended hearing.
At the commencement of the hearing to reopen, I asked the wife to identify the additional documents referred to in her application. I marked each of those for identification as follows:
·MFI1: A table identifying, by page number and description, documents from a packet produced under subpoena by the Tasmanian Department for Education, Children and Young People (“DECYP”), along with copies of those specific documents;
·MFI2: A table identifying, by page number and description, documents from packets produced under subpoena by a number of medical professionals with whom the wife has engaged;
·MFI3: A job advertisement with B Company, disclosed 28 May 2025;
·MFI4: An undated email from C Company private health insurer regarding rebates for item code 46090;
·MFI5: Fee estimates from Dr D, plastic and reconstructive surgeon, dated 11 June 2025; and
·MFI6: A Patient Health Summary dated 30 October 2017 from F Medical Clinic.
Although the wife had identified that she sought leave to reopen to tender various medical records, marked as MFI2, ultimately she advised the Court that she did not press for those to be received in evidence.
During the wife’s submissions, I also asked her to identify the additional witnesses on whose evidence she seeks to rely. They are:
·Mr G, whom the wife described as “my therapist”;
·Ms H, the former principal of the school at which the wife works;
·Ms K, a family friend of the wife; and
·Dr J, a general practitioner.
In addition, when seeking to justify calling four further witnesses, the wife stated this was to address “unfair cross-examining” of her by counsel for the husband at the hearing.
LEGAL PRINCIPLES
The principles which apply to applications to reopen are set out in McDermott & McDermott and Ors [2016] FamCA 613 at [7] to [9], as cited in Tsiang & Wu (No 2) [2023] FedCFamC1F 23 at [6]:
6.Senior counsel for the husband referred the Court to the very useful decision of Foster J in McDermott & McDermott and Ors [2016] FamCA 613, where at [7]–[11] his Honour comprehensively summarised the relevant law:
Leave to Reopen: applicable principles
7.It is well settled that reopening of a case prior to delivery of judgment is an exception to, rather than the usual course of, a trial.
8.In Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471 at 478, Clarke JA (with whom Mahoney and Meagher JJA agreed) pointed to the relevance, in an application to reopen, of the question whether the interests of justice are better served by allowing or rejecting the application. His Honour observed that:
The principle which would guide the Court in determining whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence is not led in the first place.
9.In Australian Securities and Investments Commission v Rich [2006] NSWSC 826; 235 ALR 587 at [18], Austin J pointed to matters relevant to an application to reopen including:
a)The nature of the proceeding;
b)Whether the occasion for calling the further evidence ought reasonably to have been foreseen;
c)Considerations of fairness in respect of the defendant's notice of the case they have to meet;
d)The importance of the issues as to which the further evidence is sought to be adduced to the issues in the case;
e)The degree of relevance and probative value of the further evidence;
f)The prejudice to the defendant in terms of delay and the completion of the proceedings and consequential costs;
g)The public interest in the timely conclusion of the litigation; and
h)The explanation offered by the applicant for not having called the evidence-in-chief.
[…]
As the wife was self-represented and did not appear to have an appreciation of the legal principles relevant to an application to reopen, I provided her with a copy of the authority with the extracted principles referred to at [10] of these reasons to assist her with her submissions.
I adjourned the Court to permit the wife to consider the principles and invited her to then address me on those point as to why the Court should grant leave to reopen.
THE PARTIES’ CONTENTIONS
The wife’s submissions
As to why the documents subject to her application were not tendered at the defended hearing, the wife submitted that the material was “not available to [her] at that time”. In respect of MFI1, she raised that there was an error on the part of the Court Registry in only allowing her to inspect the DECYP subpoenaed material rather than make copies, and that was only rectified after the conclusion of the defended hearing.
As to why the witnesses referenced at [8] of these reasons were not called at the defended hearing, the wife contends that she was not aware that she could call witnesses to support her case. If she had known this, the witnesses would have given evidence and been available for cross-examination at the defended hearing. I questioned this submission, telling her that I had asked her during case management of the proceedings how many witnesses she intended to call and that she had replied just herself. The wife then stated in effect that it was not my error but hers, claiming she was unaware that calling evidence from other people was an option for her.
In respect of the wife’s application to conduct further cross-examination of the husband, she submitted that she did not know that she would have the opportunity to cross-examine him at the defended hearing as she is not a lawyer and she was not told that would be the case. The wife claimed that this resulted in her cross-examining the husband without having time to properly prepare, which was procedurally unfair.
I enquired whether her submission was that she would be unjustifiably prejudiced if she was not given leave to reopen to introduce further documents and call the additional witnesses. She did not answer directly, but I infer that this is the essence of the submissions referred to at [13] to [15] of these reasons.
As to the probative value of the documents and the witnesses’ evidence, she made the following submissions:
(a)MFI1 evidences that:
(i)She could not work for a period due to her employer standing her down, and so it was not her decision to not earn an income during that time. This was in the context of her not being vaccinated against COVID-19 when her employer required such vaccination to enter the workplace. I enquired as to whether this was during the period for which she is seeking spousal maintenance, to which she replied that it was not, but it is indirectly relevant as it gives historical context to her claim and to the exacerbation of her mental health issues;
(ii)Her employer made reports in respect of family violence which the wife alleges the husband perpetrated against her; and
(iii)She was not permitted to undertake study towards a diploma in which she had enrolled at university as a way of increasing her earning capacity because the university required her to be vaccinated against COVID-19 to attend the campus;
(b)MFI4 and MFI5 are necessary as there is no evidence to substantiate her case in respect of scheduled surgeries without them; and
(c)The further witnesses would give evidence in support of her position as to the necessity and level of care she provided and provides to the parties’ son Mr E, which she claims in necessary due to the husband’s lack of supervision.
The husband’s submissions
Counsel for the husband submitted that the nature of the wife’s case had evolved and changed over time. At the defended hearing, the wife’s position was on the basis not of mental health but rather on the grounds of her diagnosis and treatment of medical condition.
He stated that granting leave to the wife to reopen her case would be prejudicial to the husband due to the costs involved in preparing for and attending an extension of the defended hearing in addition to the costs already associated with attending the hearing to reopen. Further, it would delay finalisation of the matter, which is against the public interest in resolving family law proceedings in a timely and inexpensive fashion as expressed in s95(1)(d) of the Family Law Act 1975 (Cth) (“the Act”).
Counsel for the husband did not raise any objection to the tender of MFI3 as the wife had put that document to the husband during cross-examination.
As to MFI4 and MFI5, counsel submitted that the private surgeon who authored the fee estimate in MFI5 would need to be called to give evidence as an expert so that the husband has an opportunity to cross-examine them on their estimates. In the absence of this, there is a question as to the probative value of the documents.
As to MFI6, counsel submitted that the medical consult notes are irrelevant as they date from 2017 and are prejudicial to the husband because they reference an alleged family violence incident which is not otherwise in the material before the Court on the defended hearing. The tender of MFI6 would necessitate the husband being recalled to address that evidence.
In respect of the wife’s knowledge about calling witnesses or cross-examining the husband, counsel contended that the parties have finalised both parenting and property applications before this Court and so the wife has experience with the Court’s procedure. Further, it is not unusual for parties to appear self-represented in family law matters and there were options available to inform herself of procedural requirements, including receiving procedural advice from a private practitioner or a duty solicitor and availing herself of the resources published online by the Court for the benefit of self-represented parties.
Given the time between the filing of the AIP and the hearing to reopen and in the context that the wife had prepared five affidavits exceeding a total of 500 pages, the wife had the time to prepare and properly organise herself for the defended hearing.
Counsel also identified that Rule 8.20 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) requiring that notice of the intention to cross-examine be given to a deponent does not apply to the parties’ themselves, only their witnesses. I infer that this submission is that the wife’s submissions about being unprepared for cross-examination have little merit.
In summary, Counsel for the husband submitted that the wife’s application to reopen in whole or in part is prejudicial to the husband and contrary to the public interest. Despite this submission, he did not oppose the Court receiving MFI3.
EVALUATION AND DETERMINATION
The underlying question for the Court in the substantive proceedings is whether the Court should make an order for the husband to pay the wife spousal maintenance, in the context of the parties having consented to final orders made pursuant to s 79 of the Act which specifically provided that the husband’s obligation to pay spousal maintenance is the sum of $500 per week would end upon the wife receiving a lump sum from the proceeds of sale of the former matrimonial home.[1]
[1] Orders 1, 3 and 14 of final orders made 19 January 2024 as corrected pursuant to the r10.1.3 of the Rules on 14 February 2024.
When the wife filed her current Application for Final Orders seeking spousal maintenance in October 2024, she relied on evidence relating to her inability to support herself from income available from her usual employment as a community worker. Her evidence is extensive and directly addresses the impact of her care of the children of the marriage on her earning capacity.[2]
[2] For example, see the wife’s affidavit filed 13 November 2024 onwards.
Since early this year, the wife has filed and relied upon other affidavits containing evidence about her diagnosis and inability to work and derive an income to support herself.
I consider the application for spousal maintenance has always been premised on a claimed inability to derive income sufficient to support herself due, at least in part, to care responsibilities for the children.
The documents marked as MFI1 were obtained pursuant to a subpoena to the wife’s employer, issued by the husband. The documents upon which the wife now seeks to rely upon relate mostly to periods prior to October 2024 and constitute records of applications made for leave without pay, supporting information for those applications provided by the wife, and communications about that between her and the employer.
The documents within MFI1 relating to the period before October 2024 are simply irrelevant and historical. They do not provide probative evidence about any fact or issue currently in dispute. It is not disputed in the substantive proceedings that the wife made applications for leave without pay both before and after filing her current application for spousal maintenance. The content of these documents are not probative in relation to whether it was reasonable or necessary for her to take the leave. Accordingly, leave will not be granted to tender these documents.
As the wife did not press her application to reopen regarding the documents described within MFI2, it is unnecessary to make an order or provide reasons in respect of those documents.
The wife will have leave to tender the document marked MFI3 as the husband does not object to its tender.
MFI 4 and MFI5 purport to provide evidence of the outlay cost and rebates for surgery related to the wife’s illness. The wife refers to those surgeries in her evidence in chief as being necessary treatment in the future consequent to her diagnosis.
The wife was asked on multiple occasions at the defended hearing whether there were other documents she wished to tender into evidence. I had also explained to the wife at the commencement of the hearing that documents would need to be tendered and that she could not assume that a document referred to incidentally or contained within subpoenaed documents or a tender bundle were automatically in evidence.
Of note, the wife has not called any medical witnesses to give evidence about treatment costs that she may or will have in the future.
On the application to reopen, the wife submitted that she thought she could provide the documents upon which she now seeks to rely in closing submissions, but as closing submissions did not occur on the day of the defended hearing, she did not provide them to the Court.
Counsel for the husband did not cross-examine the wife in relation to the need for the surgeries and there was no challenge to her evidence about the need for the surgeries.
At the close of the evidence at the hearing, I had emphasised the need for clear submissions about what each party contended are:
(a)The reasonable and necessary expenses or needs of each party; and
(b)Their respective income and earning capacity.
I provided an explanation about the options for oral or written closing submissions. Both parties agreed that it would be preferable to provide written closing submissions and not oral ones. The wife did not seek clarification about the process for making a closing submissions in writing nor did she allude to other documents or material upon which she may want to rely.
The wife has demonstrated herself to be articulate and capable of presenting large volumes of evidence and documents as annexures to her affidavits. Despite this, on occasions, I prompted her whether there were any other documents she wanted to tender.
Although I consider there was reasonable opportunity to obtain evidence in the nature of MFI4 and MFI5 before the wife closed her case, in order to make a determination that is consistent with doing justice between the parties, I am of the view that the Court should receive the documents. That is because they appear to merely particularise the cost of expenditure for surgeries which the wife has already given some evidence about.[3] In addition, her claim that the information was not in her possession on 30 May 2025 was not disputed by the husband.
[3] Wife’s affidavit of 15 May 2025 at [47] to [51.
I accept that the husband has not tested the costings, but this potential unfairness can and will be addressed by permitting him to adduce any evidence upon which he may choose to rely to rebut the reasonableness of the costs and expenses relating to the two future surgeries.
In my view, there is no utility in allowing cross-examination of the surgeons as the quantum of their fees as they are likely to be set at their discretion and according to demand. It can be reasonably expected that their evidence will be consistent with the documentary evidence the wife seeks to tender.
The health record which is MFI6 is dated 2017 and so is over seven years old. It bears little, if any, relevance to the issue of what spousal maintenance ought to be payable to the wife. It has no probative value, and I decline to receive it in evidence.
Turning to the witnesses from whom the wife seeks to adduce oral evidence, I accept the submissions from counsel for the husband that she has experience of previous proceedings before this Court and had capacity to avail herself of advice about how to run her case. Indeed, she stated that she had taken some advice. It is not the role of the Court to give advice or recommendations about the witnesses upon which a party ought to rely. I am satisfied that my enquiry of the wife referred to at [14] of these reasons made it sufficiently clear that she had the option of calling witnesses other than herself alone.
It appears to me that the wife now simply seeks to bolster her case after the conclusion of the evidence because of a perception that she could have presented her case better. This is not a valid basis for granting leave to reopen to adduce other evidence in chief.
I accept it is inconsistent with the public interest described in s 95 of the Act and the overarching purpose of the Rules to allow the wife to adduce further oral evidence. Further, it would be unfairly prejudicial to the husband, who has already answered the wife’s case and would then be expected to potentially answer another or different case.
CONCLUSION
Having regard to the documentary evidence sought to be adduced by the wife, the relevant legal principles, and the submissions received, I have arrived at the conclusion that it is not in the ultimate interests of justice to give leave to the wife to reopen, except to receive into evidence the documents presently marked as MFI3, MFI4 and MFI5. They will now be received as Exhibit A8, Exhibit A9, and Exhibit A10 respectively.
In addition, to afford the husband relative procedural fairness in respect of the evidence comprised in Exhibit A9 and Exhibit A10, I will make an order that he have leave to file and rely upon a further affidavit in rebuttal to the costs and expenses referred to those documents.
The course outlined at [50] and [51] of these reasons is necessary given the relevance of the wife’s cancer diagnosis, which is unchallenged, and the need for the Court to be appraised of the cost of the wife’s future treatment needs.
I consider that granting leave to reopen in this manner will ensure the overall interests of justice are served and will provide fairness to both parties.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 3 July 2025
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