State Central Authority and Jazeer (No 3)
[2015] FamCA 315
•17 April 2015
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & JAZEER (NO 3) | [2015] FamCA 315 |
| FAMILY LAW – Interim application by respondent mother in Hague Convention proceedings to re-open her case to adduce further evidence in opposition to return — application not allowed in relation to exception to return — application allowed in relation to conditions to return |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Jazeer |
| INTERVENOR: |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Hams |
| FILE NUMBER: | MLC | 2384 | of | 2014 |
| DATE DELIVERED: | 17 April 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 17 April 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Porritt |
| SOLICITOR FOR THE APPLICANT: | Department of Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Ms Harris (Amicus Curiae) |
| SOLICITOR FOR THE RESPONDENT: |
Orders
IT IS ORDERED THAT:
1.Leave is granted to the respondent mother to re-open her case for the purpose of adducing further evidence relevant to the conditions under which the child B born … 2007 is to be returned to New Zealand.
2.Leave is granted to the respondent mother to rely upon:-
a) her affidavit sworn 13 April 2015; and
b) the affidavit of Ms H (psychologist) affirmed on 12 April 2015.
3.Leave is granted to the respondent mother to file and rely upon the affidavit by Ms I, solicitor, sworn or affirmed on 16 April 2015.
4.Any material to be relied upon by the State Central Authority in response to the further evidence relied upon by the respondent mother be filed and served by not later than 4.00 pm on Friday 24 April 2015.
5.The further hearing of these proceedings be adjourned to 3.00 pm on Thursday 30 April 2015 NOTING THAT the Court will, if necessary sit on that day until 5.30 pm to conclude the case. Subject to any further Order of the Court, the further evidence and submissions be confined to conditions of return.
6.By not later than 12.00 noon on Tuesday 28 April 2015 the respondent mother publish to the State Central Authority and to the independent children’s lawyer any conditions that she seeks be imposed on the return of the child B born … 2007 to New Zealand.
IT IS DIRECTED:
7.That my reasons for decision this day be transcribed and when settled they be published to the parties and a copy be sent to Judge McHardy in New Zealand.
AND IT IS NOTED that in the event that a party fails on the next hearing date to comply with an order for the filing of documents the proceedings may be determined notwithstanding that failure and without any further input from the party in default.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Jazeer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2384 of 2014
| State Central Authority |
Applicant
And
| Ms Jazeer |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
This matter comes before me today as the hearing of the oral application of the mother to re-open her case for the purpose of adducing further evidence. These proceedings are return proceedings under the Family Law (Child Abduction Convention) Regulations 1986 (Cth), which implement the 1980 Hague Convention and have been the subject of a number of decisions by me for which I have published reasons at case neutral citations [2014] FamCA 1059 and [2015], [2015] FamCA 174 and [2015] FamCA 312. The history has been adequately rehearsed in those reasons.
The further evidence sought to be adduced is an affidavit by her sworn on 13 April 2015 and an affidavit affirmed by a psychologist, Ms H, on 12 April 2015. It was said that the evidence goes to an exception to return and, if return is ordered, to conditions to return.
The mother deposed that she is presently seeking treatment under a mental health plan and that Ms H is her treating psychologist. The mother deposed to concerns about her deteriorating health and stated that she has lost approximately 16 kilograms in the last year due to the stress of these proceedings. She deposed to feelings of helplessness and anxiety, of being overwhelmed and feeling defeated, of being “paralysed in a way”. She deposed that she is struggling with the care of the children, though they remain happy and are progressing well. The mother deposed:
[12] I am concerned that if I feel so overwhelmed and out of control in Australia where I have the support of my mother and sister that I will be much worse in New Zealand where I have very few friends or contacts left, little support in the community and no family. My mother helps me by looking after the children when I have to be other places. She feeds them and nurses them when they are sick. She knows when I need a break especially after the last few months. …
The mother also deposed to a history of family violence perpetrated against her and the children by the father. The abuse deposed to in her affidavit consists of, to summarise:
·an occasion, just prior to separation in 2011, upon which the father dragged the mother across the corridor of the matrimonial home by her hair, in the presence of the child, who was four years old at the time, and the matrimonial aunt, who was then ten years old;
·during the abovementioned incident, the child attempted to stop the father by grabbing hold of his leg and saying “no”. The father then pushed the child into the wall;
·another incident in 2011, when the mother was driving and she and the father were arguing. He slapped her across the face with the back of his hand while she was still driving;
·psychological and verbal abuse throughout the relationship; and
·controlling, isolating and threatening behaviour by the father throughout the relationship.
The mother concedes in her affidavit that she never reached out for help as a result of any of the violence that, she deposes, occurred within her family. Her explanation is that: “I was worried about the reaction of the father if I told anyone. I was also ashamed. For a long time I didn’t even tell my mother.”
The mother contends that the father’s controlling behaviour continues through these proceedings. She deposes that “[t]he father uses every occasion that he speaks to the children by phone to pressure me to ignore advice of my family and lawyers and go back to New Zealand.” Furthermore, she deposes that he has made threats against her, such as “I could kill you for what you have done” and “people get killed for doing the things you have done”, and that, in the context of the father’s history of lashing out when he is frustrated, she finds these threats very frightening.
The mother deposed that she feels intimidated by the father and by the Country G community in Australia more generally, within which the father has relatives. Members of the community have, she deposed, made attempts to pressure the mother into agreeing with the father’s demands and many people with whom she has had good relationships in the past now refuse to have anything to do with her, leaving her “feeling isolated, intimidated and pressured.”
The mother also deposed to a “deal” offered to her by the father in order to end the legal proceedings, whereby she should take the children back to New Zealand “while he sorts out his citizenship in New Zealand”. Once the father had obtained New Zealand citizenship, he would relocate to Australia with the children and the parents would have “shared custody”. The mother deposed that she was not at ease with this deal, but felt pressured and manipulated by the father, and in the end she felt very confused and out of control.
The mother deposed that she is very worried about returning to New Zealand to participate in the legal proceedings underway there. She deposed that the father is able to manipulate her, she finds him very intimidating and frightening and she is very fearful of his response if the matter does not go his way or if he is in any way unhappy with her or the child. The mother deposed that she has no support in New Zealand and is worried about how she would cope there, especially considering how she has been struggling to cope here in Australia, where she does have a support system. She is concerned that the isolation she anticipates she will be subjected to will have a very negative effect on her and the child, particularly because he will miss his brother.
Attached to the affidavit of Ms H, the mother’s psychologist, was a short report on the mother, dated 10 April 2015. Ms H expressed her view as follows:
I … believe that there are several factors which should be taken into consideration when determining whether [the mother] is able to return to New Zealand or not to deal with the court matters there. Firstly, and most importantly, a threat has been made to [Ms Jazeer] regarding ending her life therefore, for her safety, I believe she should remain in Australia. Secondly, she is suffering quite significant anxiety and depression symptoms and requires ongoing counselling and treatment to work through these symptoms. She is now linked up with her treating GP and myself and I believe it would be detrimental to [Ms Jazeer’s] psychological health to cease treatment at this stage by moving back to New Zealand. Lastly, she is living with her family here who are providing her much-needed support and she would not have this available in New Zealand, effectively leaving her on her own and isolated from support which would be further detrimental to her mental health.
The respondent mother bears the onus of establishing that the justice of the situation requires that her case should be re-opened in order to adduce the further evidence which is now filed.
In Gaskin v Ollerenshaw,[1] Garling J of the Supreme Court of New South Wales determined a motion to re-open a case to admit further evidence after the hearing but prior to judgment. The additional evidence was the content of a telephone conversation of which a witness had earlier testified she had no recollection. The application was opposed but the defendant stated that, if the fresh evidence was admitted, they would not seek to adduce further evidence on the issue. His Honour found that the evidence which was sought to be adduced would not have been available at the conclusion of the hearing. As to the applicable legal principles to the exercise of the Court’s discretion, Garling J confirmed that the
… principle which should 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 was not led in the first place …”
[1] [2010] NSWSC 788.
Garling J concluded that:
34. It is necessary that I take into account, in a balancing exercise, the interests of the plaintiff and the defendant in the advancement of their cases and the interests of justice generally. In so doing, I am entitled to have regard to the interests of other litigants with matters before this court and whether the granting of this indulgence to the plaintiff would affect the efficient delivery of justice in New South Wales.
35. In short, whilst I am obliged to exercise my power to achieve the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings, it is appropriate that the interests of justice guide that exercise of discretion.
In Gaskin v Ollerenshaw, Garling J was dealing within the statutory regime for New South Wales provided by the Uniform Civil Procedure Rules 2005 (NSW) and the Civil Procedure Act 2005 (NSW) the overriding purpose of which is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings” which is similar to “main purpose” provided for in r 1.04 of our Family Law Rules 2004 (Cth) (“the Rules”).
In Cook & Cook (No. 6),[2] Young J carefully analysed the reported authorities in the common law jurisdiction generally and from this Court in particular as to what should inform the exercise of the discretion to permit the re-opening of a case in order to adduce further evidence once a trial is completed but before a decision is handed down. Murphy J also reviewed several authorities in Summitt & Summitt & Ors.[3]
[2] [2010] FamCA 810.
[3] [2009] FamCA 365.
In Australian Securities and Investments Commission v Rich & Ors,[4] Austin J of the Supreme Court of New South Wales was required to determine whether the Australian Securities and Investments Commission (“ASIC”) should be permitted, after the close of the defendants’ case, to adduce evidence in reply, being affidavit evidence that ASIC served on the defendants before they opened their case. His Honour accepted from the defendants “a useful statement of relevant discretionary factors” to be considered in permitting ASIC to adduce further evidence after the close of its case. The factors accepted by his Honour included:
[4] [2006] NSWSC 826 at [18].
(a) the nature of the proceeding;
(b) whether the occasion for calling the further evidence ought reasonably to have been foreseen;
(c) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;
[…]
(e) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;
(f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;
(g) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;
(h) the public interest in the timely conclusion of litigation;
[…]
I accept the above pronouncements as accurate statements and application of the relevant law.
In the circumstances of this case I assess the degree of relevance and probative value of the further evidence sought to be adduced by the mother as weak in the context of making out an exception to return. That is, to advance a case that, if the child was ordered to be returned to New Zealand, the mother would be unable to effectively participate in proceedings in New Zealand. The submission on her behalf was that she would be unable to function psychologically to a degree which would enable her to participate in the proceedings. It seems to me that the expert evidence relied upon by the mother does not support that contention to an adequate degree.
However, the evidence sought to be relied upon does, in my view, have probative value in relation to conditions to return. When the matter was before me substantively, there were a number of conditions contemplated around the mother being able to return in a way that would be timely for her to participate in proceedings in New Zealand. I’m satisfied that those are still relevant considerations.
The State Central Authority though Ms Porritt does not oppose the admission of the further evidence in relation to conditions to return.
I will permit the mother to re-open her case and to rely upon the affidavit material now filed.
The parties are not now in a position to proceed with the balance of the case. Ms Harris says that she wants some time in which to craft some conditions around an order to return based on the evidence which is now before the Court. The next aspect that she requires some time to investigate is the timing of the New Zealand proceedings. On a number of occasions I have asked McHardy J in New Zealand for a timeline around proceedings in that jurisdiction. He has always obliged with information. I could not have asked for greater co-operation than that which I and, through me, the parties have received from McHardy J. However, notwithstanding prompt and informative responses from New Zealand, the case has stalled at this end. I’m loath to ask McHardy J for any further information. The parties should now do their own legwork. In the event that they can’t find out details of the timing of the New Zealand proceedings, they can come back to me and I will make inquiries of
McHardy J.
For the purpose of doing that they should not waste time. If they are able to ascertain a timeframe for the proceedings in New Zealand they should contact Ms Hams, who is the independent children’s lawyer. She can alert my associate, and my associate will pass on any request for further direct judicial communication. That will be done without delay.
I adjourn the matter to Thursday, 30 April 2015 at 3.00 pm. I indicate that the Court will sit until 5.30 pm if necessary.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 17 April 2015.
Legal Associate:
Date: 28 April 2015
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