Stone & Clifford
[2016] FCCA 2045
•11 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STONE & CLIFFORD | [2016] FCCA 2045 |
| Catchwords: SUBPOENA – addressed to school of children while decision reserved – documents produced in response to subpoena and inspected by both parties – no leave granted to do so – propriety of that procedure. PRACTICE AND PROCEDURE – reopening – consideration of applicable authorities – leave granted. |
| Legislation: Family Law Act 1975, ss.60CC, 69ZR |
| Cases cited: In the Marriage of Rice & Asplund (1978) 6 Fam LR 570 KMB & PRL [2005] FamCA 1202 |
| Applicant: | MR STONE |
| Respondent: | MS CLIFFORD |
| File Number: | MLC 10819 of 2013 |
| Judgment of: | Judge Wilson |
| Hearing date: | 1 August 2016 |
| Date of Last Submission: | 1 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 11 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Dr R. Ingleby |
| Solicitors for the Applicant: | Glezer Lanteri & Associates |
| Counsel for the Respondent: | Ms M. Smallwood |
| Solicitors for the Respondent: | Pearsons Lawyers Pty Ltd |
ORDERS
The applicant is granted leave to reopen the proceeding.
The matter is listed to this Court on a date to be fixed at 10.00 a.m. for further hearing with an estimated hearing time of one (1) day.
By no later than 4.00 p.m. seven days prior to the further hearing,
the applicant file and serve any affidavit material with respect to
Mr D and Mr G.
IT IS NOTED that publication of this judgment under the pseudonym Stone & Clifford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10819 of 2013
| MR STONE |
Applicant
And
| MS CLIFFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
In March 2016 I heard the trial of this parenting case and reserved my judgment. While the case was reserved, Mr Stone
(“the father”) applied to reopen.[1] He argued that he needed to adduce further evidence on a threshold issue. These are my reasons for decision on the application to reopen.
[1] Application in a Case filed 18 July 2016.
Synopsis
In my view, leave to reopen should be granted and I make such an order.
Background to this application
The trial of this proceeding was conducted over several days.[2]
It commenced as an application by the father for orders that there should be equal shared parental responsibility for the children,
X born (omitted) 2003, now aged 12 and Y born (omitted) 2007, now aged 9 (“the children”). The mother, Ms Clifford (“the mother”) proposed an order for sole parental responsibility. An array of associated orders and relief was sought by each party. However, throughout the life of the trial of this proceeding the mother has maintained a feverish determination for orders conferring upon her sole parental responsibility for the children.
[2] 15 – 17 March 2016.
During the trial, the evidence of several psychologists was relied upon, but only in report form. None were cross-examined. A forensic decision presumably had been made by counsel for the parties not to
cross-examine any of the psychologists.
On the third day of the trial, after the father and mother had completed their evidence, the parties announced that they had reached agreement on aspects of parenting.[3] The parties said residual issues lingered and that they still required a determination on what turned out to be a pivotal issue in the case, sole or equal shared parental responsibility.
[3] Parenting Order made 17 March 2016.
When counsel announced that they had reached a partial resolution of the proceeding, they told me the orders that they proposed could not, strictly speaking, be expressed as final orders because those orders did not deal, finally and exhaustively, with all issues and that the residual issues they asked me to determine were, in reality, the difference between final orders and partial or interim orders. At the time,
the precise status of those consent orders was neither here nor there as the consent orders, howsoever expressed, reduced the number of issues I needed to determine. The balance of the trial proceeded focusing mainly on the sole or equal shared parental responsibility point,
the children’s school’s access to information and on other matters of lesser importance.
In the course of the hearing, with respect to matters relevant
to the question of sole or equal shared parental responsibility,
Mr D, a representative of the children’s school
(school omitted), gave evidence. Mr D is the deputy head of the junior school with the responsibility for wellbeing and pastoral care. He gave lengthy and helpful evidence about aspects of the children’s schooling including aspects of the involvement of the father in the children’s schooling. As a witness, Mr D impressed me, although it is best that I say no more now about the impression he left as a witness.
Only one psychologist, Ms H, gave viva voce evidence, notwithstanding the large number of reports written by an array of professionals who have been involved in this litigation.
In final addresses, counsel focused on the competing issues of
sole parenting as opposed to equal shared parenting. On behalf of the mother, the position advocated at all times was that the mother should have sole parenting of the children to the exclusion of the father. In the course of writing my reasons for judgment in the case it struck me that such a position may have been an extreme, if not impossibly intransigent and intractable position. It struck me that the best interests of the children were, or may, not have been promoted in making orders in accordance with the mother’s contentions.
It occurred to me that final orders might be undesirable if their effect was likely to mean that the children would have little or no meaningful interaction with their father. This issue was not explored at trial.
I became concerned that such orders could have seriously deleterious consequences to the children in the future. It worried me that neither counsel had given the point any attention during the trial, especially during final addresses. It worried me all the more that no consideration had been given to possibilities other than the hard-line position adopted by the mother or the nebulous position adopted by the father.
Accordingly, on 24 May 2016 I requested my associate to communicate with the legal representatives of the parties. The email was in the following terms –
Dear Practitioners
I refer to matter MLC10819/2013, Stone & Clifford which was heard by his Honour Judge Wilson and is currently reserved for judgment.
This matter has been listed for Mention before his Honour on
30 May 2016 at 10.00 a.m.Counsel are required to appear so that they can make submissions on whether and if so what interim orders should be made in this case.[4]
[4] Email from the Chambers of his Honour Judge Wilson to the Glezer Lanteri & Associates and Pearsons Lawyers Pty Ltd dated 24 May 2016.
For inexplicable reasons, the mere fact that my associate emailed the parties (sent, as it happened, while judgment in this case was reserved) prompted the solicitors for the father to issue a subpoena to the children’s school calling for production of a range of documentation.[5] So I was later informed when this hearing came before me on
1 August 2016, upon the return of that subpoena the solicitors for the mother inspected the documents produced as did the solicitors for the father. It is important to keep in mind that the subpoena to the school was issued when my decision in this case was reserved. In other words, the case had come to an end, all applications in it had been heard,
all evidence had been adduced and it fell to me to make a determination on the evidence as it then stood.
[5] Subpoena directed to The Principal, (school omitted) filed 13 July 2016.
Precisely how the legal representatives of the father took the view that it was legitimate, dare I say proper, to issue the subpoena to the school while my decision was pending was extraordinary. I have not seen such behaviour in over 35 years of practice in the law. To make the matter worse, the conduct was expressly or tacitly approved by the mother’s solicitors as they inspected the school’s file after the subpoena was answered.
Dr Ingleby of counsel for the father told me that the subpoena was issued on 13 July 2016 and that documents were produced in response to it shortly thereafter. When I asked why the subpoena was issued in the first place, having regard to the fact that judgment in this case was reserved when the subpoena was issued, Dr Ingleby answered by saying that his solicitors took the view that the litigation was active upon receipt of the email from my associate referred to above. Precisely how such a conclusion could have been reached was not stated. It bewildered me how it could have been said that this case was alive, despite being reserved, merely on account of my associate’s email.
At all events, following the sending of my associate’s email to the parties, I endeavoured to secure a date for the parties to appear before me for the purposes of debating the matters that were of importance to me. Counsel’s availability made fixing a date problematic. In the upshot, doing the best I could, the first available date that suited all parties was 1 August 2016. I fixed that date.
This case was called on for further hearing on 1 August 2016 at
10.00 a.m. Upon the case being called on, I told the parties the following –
HIS HONOUR: Thank you, Dr Ingleby. And, Ms Smallwood, also appears I see. Well, now, independent of the application in a case that I see is listed before me, may I just explain to the parties what has happened since we were last before one another. In this case I prepared reasons for judgment shortly after the decision was reserved. In the course of preparing those reasons, and based on an extensive review of the expert evidence in this case,
a possible outcome on which neither party had advanced submissions may come to pass based on section 60CC considerations, that is to say, “the best interests of the children” considerations, especially in relation to X.
The mother urged, forcefully, that the father was to have no time with X. Without yet indicating my response to that submission, it is frequently ordered in a case of this sort that before a measure as drastic, and one having such far reaching consequences, a middle ground is to be explored. The middle ground is that for a period of time, possibly up to a year, the child, in a high conflict position, spends time with the parent with whom the child is alleged to be in high conflict and in that time, commonly, therapeutic counselling for a period of time is ordered.
I wish to receive submissions from the parties about whether: (a) I should make orders in those terms; (b) if not, why not with section 60CC considerations firmly in mind; (c) the long term damaging effect an order might have if the father is denied any interaction with X during X’s minority; (d) the wisdom of making the orders proposed by the mother in view of the fact that (i) X may not, on the evidence, in fact, be frightened by the father; (ii) a body of sociological evidence shows that boys denied any fatherly influence often suffer detriment in unpredictable sociological consequences as adults.
These points were not developed by either party during the trial in this proceeding. Before making final orders the parties must be given an opportunity to be heard on these issues. This hearing could not be scheduled any earlier than today as counsel was unavailable until recently. I have in mind written submissions on point. However, a date for addresses can be given if that is thought a better way to proceed. If written submissions are preferred I had in mind two weeks. Now, those are indications that have occurred to me having drafted the reasons for judgment in this case. But events may have overtaken themselves in view of the application in a case. So who should I hear first?[6]
[6] Transcript of Proceedings, 1 August 2016 at p.2.
The father’s application
Thereupon, Dr Ingleby informed me that his client had filed an application in a case in which he sought orders for leave to reopen his case.[7] Unsurprisingly, Ms Marylyn Smallwood, counsel for the mother, took issue with all aspects of the father’s application. Despite the pressures of business in Court on 1 August 2016, I heard the application comprised of the application in the case dated 18 July 2016 for most of the day on 1 August 2016.
[7] Application in a Case filed 18 July 2016.
Initially, Ms Smallwood complained, quite properly, that Dr Ingleby had not identified precisely what his client was seeking in the application in a case. After lengthy debate and in Dr Ingleby’s reply submissions, it emerged for the first time that he squarely acknowledged he could not succeed in his application in a case if his application was based on an In the Marriage of Rice & Asplund[8]
(“Rice & Asplund”) ground. To better understand the significance of that concession it is necessary to understand the basis of the mother’s resistance to the application.
[8] (1978) 6 Fam LR 570.
The mother’s opposition
On behalf the mother, Ms Smallwood contended that –
a)
the parenting orders pronounced on the third day of the trial were
“final orders”;
b)
section 69ZR of the Family Law Act1975 (Cth) (“the Act”) did not permit leave being granted to reopen the case after
final orders had been pronounced;
c)as final orders in this case had in fact been pronounced, on its proper analysis the father was left to apply to discharge the orders made during the running of the trial upon a Rice & Asplund ground on the basis that such a change of circumstances had occurred that the consent orders had been rendered nugatory;
d)on the facts, no such change of circumstances had in fact occurred because, so Ms Smallwood argued, the same issues now apparent at the children’s school were the subject of the evidence given by Mr D during the trial;
e)if, in reality, the father’s application was an application to reopen, then the father failed to meet the prescribed criteria set out in the case law with the consequence that his application should fail.
Let me take each proposition in turn.
Were the orders made during the trial “final orders”?
First, in my view the orders I pronounced on the third day of the trial were not “final orders”, properly so called. The trial continued, despite the making of those orders. I reserved my decision on the threshold issue of sole or equal shared parental responsibility. The orders did not finally dispose of the litigation between the parties. Those orders provided a contraction or reduction in the number of issues that were initially alive in this litigation. But the making of the orders did not finally quell the whole of the controversy between the parties.
Far from it. Despite the making of the consent orders, the trial continued and three important issues are yet to be determined. In those circumstances, it could not be said that the orders I made earlier in this litigation were “final orders”.
That therefore disposed of the related argument that the principle in Rice & Asplund applied. It did not.
My conclusion in relation to the orders not being final also had the effect of disposing of the mother’s argument in relation to s.69ZR of the Act. There being no final orders, no impediment presented itself to the grant of leave to reopen if circumstances warranted the grant of such leave.
Should leave to reopen be granted?
Before leave to reopen is granted, it is necessary to examine the evidence that the father said he intended to adduce. It has previously been held by Cronin J in Naczek v Dowler(No 4)[9] (“Naczek”) that in a parenting case, of which this is one, the proposed new application –
[M]ust have an impact on the proposals of the parties already put to the court. That impact must be so significant as to not only change the direction of a party's case but also to require the trial judge to contemplate a different scenario to that determined during the trial. If the evidence fits into that category, there must be an obligation on the court to pursue it as a consideration of how it will impact upon the lives of the children.[10]
[9] [2008] FamCA 653.
[10] [2008] FamCA 653 at [9].
In stating that principle, his Honour cited the observations of the
Full Court of the Family Court of Australia in KMB & PRL[11] (Kay,
Holden and May JJ). That was a parental alienation case in which certain opinion evidence in the case addressed the concept that “mum is all good” and “dad is all bad”,[12] evidence having an instant similarity with this case, although it is not necessarily identical with aspects of some of the expert evidence in this case.
[11] [2005] FamCA 1202.
[12] [2005] FamCA 1202 at [32].
In Naczek, Cronin J stated that the main consideration will be the best interests of the children. If I may say so with respect, that accords with my assessment of the complex operation of s.60CC of the Act.
Specifically, the husband indicated he wanted to put into evidence that the scholastic performance of X had been poor in the period covered by semesters one and two of the 2016 school year. The father wanted to adduce in evidence a change in the attitude demonstrated by the children’s school towards the ongoing friction between the father and the mother as it bore upon the children’s education. The father submitted that various documents obtained from the school file under subpoena cast a very different complexion on the children’s performance at school in June 2016 as compared to earlier evidence that was given during the trial of this proceeding. The father submitted that it was important to him to be permitted to adduce recent evidence about X’s academic circumstances since the trial as that evidence bore directly on the matters that fell for my consideration. Conversely, Ms Smallwood submitted that when careful examination of the subpoenaed school file was undertaken, the children’s circumstances in June or July 2016 were largely if not precisely as they were when this proceeding was heard at trial. So, it followed she said, there was no significant change in the evidence.
As counsel requested me to do, I have read the documents extracted from the school file upon which Dr Ingleby relied as well as those that Ms Smallwood flagged, upon which she relied. It is not altogether easy to get a precise narrative of events from the school’s perspective by a cursory reading of the school file. Behind every email or internal school communication is a story that only the author of the email, letter or memo can explain. For that reason, in debate I canvassed with
Dr Ingleby the factual circumstances that led to an email from the school principal to a senior schoolmaster about the school’s legal obligations (inferentially, to the children) in view of the lack of commitment exhibited by the parents. The father expressed his fear that the children were at risk of dropping out of school. Ms Smallwood challenged the evidentiary providence of those statements. I receive them as an explanation for the father’s conduct in bringing the application for leave to reopen the case, and on other grounds. To my mind, if the facts are proved in support of those fears, the basis of this application will be established.
Discretionary considerations
Ultimately, the decision on whether to make an order reopening the father’s case so as to permit further evidence to be adduced is discretionary. Usually, the balance is finely poised. In complex and difficult parenting cases of which this is one, there is no prescription for the exercise of discretion. Here, I have chosen to exercise my discretion to grant leave to the father to reopen his case. I do that for the following reasons -
a)
first, the case is not yet finally disposed of by final judgment.
In many respects the litigation is still in flux;
b)second, the school material evident since the trial of this proceeding paints a very different picture of the happiness and progress of the children at the school, X especially, than appeared at trial. Presently, the school is concerned about the children’s future at the school by reason of the parents’ lack of commitment to the children’s education;
c)third, that position is in stark contrast to the evidence revealed at the trial of this proceeding;
d)fourth, for the purposes of determining the best interests of the children, it is relevant for me to understand why the school has altered its position in relation to the likely upshot of the children’s education;
e)fifth, without receiving that evidence, I will be left guessing about aspects of the evidence in this case when, by the grant of leave, there will be no such guesswork and I will have a firmer evidentiary basis upon which to form critical findings on issues squarely directed to the considerations of s.60CC of the Act;
f)sixth, the mother has raised no basis by which her protests against the grant of leave can be seriously measured. In essence she says little more than an assertion that there has been no alteration in the circumstances that existed at trial to those with which I am presently concerned; and
g)seventh, it is desirable, in the interest of all concerned in this case, to conclude this aspect of the case as soon as possible.
Dr Ingleby indicated that if leave were granted, he proposed to call two witnesses whose evidence would be concluded inside of the day.
He mentioned Mr D, whose evidence was previously given and the Principal of the children’s school, Mr G, who had not previously given evidence.
Conclusion
Having regard to the foregoing, I grant leave to the father to reopen this case so as to adduce viva voce evidence from Mr D and
Mr G, both of (school omitted).
I fix an additional day of hearing to receive their evidence.
I order that not less than seven days prior to the resumed hearing of this proceeding, the solicitors for the father must file and serve an affidavit recording the evidence which each of Mr D and Mr G will give, exhibiting all documents in support.
In Suell & Suell (Re-Opening),[13] Murphy J of the Family Court of Australia held that generally, in parenting cases the power to reopen should be exercised sparingly and with considerable circumspection.
[13] [2009] FamCA 55.
I have kept those concepts in mind in making the orders as set out above.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 11 August 2016
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