STOTT & HOLGAR

[2016] FamCA 1075

FAMILY COURT OF AUSTRALIA

STOTT & HOLGAR [2016] FamCA 1075

FAMILY LAW – CHILDREN – where the maternal grandmother seeks to adduce further evidence post trial – where the Court does not consider that it would be in the interests of justice for the proceedings to be reopened and to have further evidence called – where the application is dismissed.

Family Law Act 1975 (Cth) s 69ZN

Australian Securities and Investment Commission v Rich (2006) 235 ALR 587
Gaspaldi & Gaspaldi [2009] FamCAFC 237
Gelly and Gelly (No 1) (1992) FLC 92-290
Rice & Asplund (1979) FLC 90-725
Smith & New South Wales Bar Association (No 2) (1992) 176 CLR 256
Stephens & Stephens (Enforcement) (2009) FLC 93-425
Urban Transport Authority of New South Wales & Nweiser (1992) 28 NSWLR 471

APPLICANT: Ms Stott

RESPONDENT: Mr Holgar

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Norman Waterhouse Lawyers

FILE NUMBER: ADC 2199 of 2008

DATE DELIVERED: 7 July 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 7 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Georgina Parker Lawyers

COUNSEL FOR THE RESPONDENT: Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Adey

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Norman Waterhouse Lawyers

Orders

1. The Application in a Case filed by the maternal grandmother on 23 June 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holgar & Stott 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 ADELAIDE

FILE NUMBER: ADC 2199 of 2008

Ms Stott

Applicant

And

Mr Holgar

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The proceedings before the Court involve parenting issues in respect of the child C (“the child”), born in 2006.  The parties have been in significant dispute in respect of the parenting arrangements in respect of the child.  The child currently lives in the primary care of his maternal grandmother, and, by agreement between the maternal grandmother and the mother of the child, the child spends significant and substantial time with her, usually, but not necessarily exclusively, each weekend.  The child spends time with the father each alternate Saturday, and to the extent that those orders have been the subject of compliance or have been given effect, the maternal grandmother and the mother modify and alter their private arrangements to ensure that an opportunity is available for the orders to be given effect and for the child to spend time with his father.

2. I do not propose to go into the long and detailed history of the matter.  There are some unfortunate, complex, and, as to certain aspects, shocking circumstances in which the parties find themselves.  There are serious allegations made by the maternal grandmother in respect of the father’s violence, and, for his part, he makes serious allegations in respect of the suitability of the mother and the willingness of preparedness of the maternal grandmother to support his relationship with the child,

3. The orders sought by the maternal grandmother in terms of the substantive or operative aspects of her case are that she says there should be no time spent  between the child and the father, whereas he says that, at the very least, the current time should be maintained, but that consideration should be given to that time being extended.

4. The maternal grandmother has been represented consistently throughout the proceedings, understanding that, in one way or another, these proceedings have been before the Court since 2008.  The father is a self-represented litigant and the Court has had the considerable advantage of long involvement by Mr Adey the Independent Children’s Lawyer (“ICL”).  The proceedings reached trial in March of 2016 when the matter was listed for hearing.  The trial was heard on 15, 16, 17, 21, 22 and 23 March 2016.  On 23 March 2016 judgment was reserved to a date to be fixed.  If matters had remained thus, I had indicated to the parties that they could anticipate a judgment within about two or three months.

5. By application in a case filed 23 June 2016, the maternal grandmother sought an urgent hearing and foreshadowed that there would be an application for leave to adduce further evidence, and that, if such application was successful during any period of adjournment, the order made by Dawe J on 13 May 2015 be suspended and in order to assist the Court, but presumably as part of the presentation of further evidence, that the family consultant who had been engaged at least more latterly in the proceedings prepare an update report.

6. The application in a case was supported by an affidavit of the maternal grandmother.  The document contained a significant level of detail and my attempt to summarise its contents should not be seen as comprehensive lest an impression is left that I have not read the document nor digested carefully and considered in detail the issues that are raised in the affidavit.

7. By way of an inadequate summary, but sufficient for the purposes of these reasons, is that the child had been spending time with his father since the order made on 13 May 2015, which was, in effect, from 10 am to 4 pm each alternate Saturday.  That arrangement had been in place, obviously, since the making of the order, and I think it is a reasonable finding that the evidence supported the contention that the child had been seeing his father in broad compliance with the order.  There may have been occasions from time to time when it did not occur, and, for her part, the maternal grandmother gave evidence that it was not without difficulty, but that she had developed a management strategy or plan in respect of the child that had as at the hearing in March 2016 resulted in a reasonable level of success in causing the child to spend time with his father pursuant to the order.

8. The father’s position is that whatever circumstance may be suggested by the maternal grandmother on the occasions that the child spent time with him and with the paternal grandmother, they were times of affection and happiness.  Obviously, they are matters of evidence and it is for me to define and distil the evidence in order to determine what is in the best interests of the child.  The affidavit refers to an incident that allegedly occurred on 30 April 2016.  The importance of that date is that the maternal grandmother says that is as a result and from that date she has not been able to persuade the child, require him or force him to spend time with the father.

9. The result of that incident, at least as far as the maternal grandmother is concerned, is clear, namely, she says, she cannot any longer comply with the order, because the child simply refuses, and because a refusal by the child is a more complex presentation than would be in respect of a child who does not present with the sort of behavioural difficulties that the child presents with, she says she has no confidence that she will be able to comply with the order in terms of the child seeing his father.  The issue, however, must at least initially focus upon what the Court would understand by the incident on 30 April 2016.

10. The context in which this inquiry or consideration is undertaken is not in terms of a determination of the accuracy of the observations of the maternal grandmother, or indeed of the denials by the father in his responding documents, but rather whether what I consider to be the necessary considerations required before an application for leave to adduce evidence once the case has closed is satisfied.  It is not a moveable feast, and it is a matter of rigor, notwithstanding that I understand my obligations under s 69ZN of the Act and that it is proper that, in respect of a parenting case, the Court should not impose an undue level of technicality.

11. It is therefore important that, in respect of my remarks made in relation to this application, that they are not to be seen as determinative of the truth or otherwise of the assertion, but simply whether or not it satisfies the necessary preconditions for the application to success, that application being to reopen the proceedings and to adduce further evidence.  There is also an application in a case by the father seeking an enforcement of the order.  He brings that application in circumstances where, quite clearly, since 30 April 2016, the child has not seen his father.  I have indicated that the application in a case is misguided and that I propose to dismiss it.  There is an order in place and there is a proper process.

12. An application in a case is not a proper process in relation to questions of enforcement.  That does not mean that I am inviting the father to bring an application for contravention.  It is a matter for him, but he might find that there is advantage at least in waiting until the primary proceedings have been the subject of final adjudication before the matter and is made more complicated by any other subsequent applications, certainly of the nature of a contravention.  I can also indicate that there is unlikely to be any circumstance where I would entertain an application for contravention until judgment has been delivered.

13. The maternal grandmother alleges that the child was in a motor vehicle with his father and the paternal grandmother.  That there was an incident in a car park which involved the father looking for a car park space and, when he was unable to do so, he swore and yelled out in the following terms, “[s]hit, there is no fucking car parks”. 

14. The maternal grandmother knows of this only via a conversation with the child’s stepsister O who is about 14 years of age.  I can indicate that, whilst not necessarily relevant to these proceedings, I am aware of the beneficial relationship between O and the child and it was not unusual in the evidence that I heard that there are matters that the child may speak to his sister about and not speak to others.

15. It is reported in paragraph 21 of the maternal grandmother’s affidavit that O told the child that, whatever the father may have said, it was not directed towards the child and that the father was angered because he couldn’t find a car park.  O told the maternal grandmother that she reassured the child,  For his part, the father denies that the incident occurred in the way as alleged.  A reading of his affidavit does not corroborate paragraph 21, but rather, suggests that there was no aggression and effectively no incident that could support what the maternal grandmother says thereafter became the child’s total opposition to see the father upon the child now developing a fear of the father.

16. It should be noted that in determining an application for leave to adduce evidence, whilst I’m entitled to bring to account all of the relevant matters, the forensic focus must, at least in first instance, centre upon the high water mark of the evidence that the applicant seeks to adduce.  It, however, must be considered that in circumstances where the maternal grandmother reports that which O reports that which the child tells her it is a circumstance that is difficult to consider in terms of the level of weight that is likely to be attached to it.

17. The second limb of the argument, however, is that irrespective of how it has come about, whether it has come about because of this incident, as is opined by the maternal grandmother, or whether it comes about simply because of the child’s own circumstances which have now progressed to a level that is more hardened and resilient and oppositional to the father, the end result is that the maternal grandmother has no longer any confidence that any order that the Court may impose can be enforced.

18. There is also a further aspect which is troubling in the sense that it indicates more uncertainty in respect of what is being presented to the Court, is that notwithstanding what would be considered helpful and, indeed, hopeful development as set out in paragraph 32 of the affidavit, namely, within the last few months the child’s behaviour is quite settled.  He enjoys his school and is participating well in activities that he enjoys.  Yet it may be the case that that happiness at school has changed.  That information is known only by reference made by counsel at the bar table and there is nothing with any formality before the Court in that regard.

19. In any event, whatever the position is, significant time has now passed since 30 April 2016.  The question is whether that which is presented would support the requirements in respect of leave to adduce further evidence and the reopening of the proceedings.  I do not leave the application before commenting on the extent and nature of the evidence that is to be sought to be led if leave is given.  It is fair to say that there is uncertainty, not necessarily about the source of the evidence, but about what evidence the Court would hear.

20. It seems that there is some certainty in respect of the evidence of the maternal grandmother, at least insofar as it is contained in the affidavit sworn as at 23 June 2016.  There may be some further evidence that the maternal grandmother would want to give if there has, in fact, been a change in the child’s attendance at school, integration and preparedness to remain involved and engaged, but it is likely that that evidence would be minimal.  The more complex story relates to the application for the family consultant to be re-engaged. 

21. There has been no inquiry as to the availability of the family consultant and it is reasonable to assume, given the business of the Court, that the preparation of a further report would take no less time than is ordinarily to be expected, namely, some three to four months.  That in itself is not a barrier, but it needs to be considered in respect of what is likely to be the assistance provided by the family consultant.  I have made it clear that, whilst the Court is aware of the circumstances of the child and the various diagnosis management plans and arrangements that have been put in place in order to better integrate the child into school and socially, those matters were not matters that were put in detail and with precision to Ms L, the family consultant.

22. It is therefore a matter of being required to wait and see what might be placed before the Court following a process that is as yet somewhat uncertain in terms of the preparation of an updated family report.  I am uncertain in terms of the application and the affidavit that the Court is likely to be assisted by a further report from the family consultant in circumstances where she may not, in fact, be a person appropriately qualified to deal with what is considered, potentially, a new and different circumstance.  In any event, I’m not satisfied that the issues that are raised in the application and the affidavit, at least in the broad, are not matters that could have been put to the family consultant when she gave her evidence.  There are two factors – or two considerations that are relevant to an application of this sort.  The first is what is the test and the obligation that needs to be satisfied before a Court should consider to reopen a hearing.  In that regard, assistance is obtained from the decision of Stephens & Stephens (Enforcement) (2009) FLC 93-425 at 83,947 to 948. At [272], the following is said by the Full Court:

    In relation to an application to reopen a hearing after judgment has been reserved, the fundamental principle to be applied in determining whether to grant an application is whether the interests of justice are better served by allowing the application or rejecting it…

23. Their Honours then refer to the well-known authorities of Urban Transport Authority of New South Wales & Nweiser (1992) 28 NSWLR 471, the authority of this Court in Gelly and Gelly (No 1) (1992) FLC 92-290, the authority of the High Court of Smith & New South Wales Bar Association (No 2) (1992) 176 CLR 256 and the decision of Gaspaldi & Gaspaldi [2009] FamCAFC 237, being a decision of the Full Court of this Court comprising Thackray, Le Poer Trench JJ and Bryant CJ. Their Honours found that “[t]he object was to make the order most likely to promote the interests of justice, paying proper regard to any prejudice to the other party”.

24. In the decision of Australian Securities and Investment Commission v Rich (2006) 235 ALR 587 Austin J set out at [593] what he described as:

    … a useful statement of relevant discretionary factors in order to cause the exercise of a discretion to permit a beginning party in a civil penalty proceeding to adduce further evidence…

25. His Honour considered the following factors relevant:  the nature of the proceedings; whether the occasion for calling further evidence ought reasonably to have been foreseen; the importance of the issue on which the further evidence is sought to be adduced; the degree of relevance and probative value of the further evidence; the prejudice to the other party; the public interest in the timely conclusion of litigation; and the explanation offered for not having called the evidence.  Other authorities, certainly those that have been referred to, make it clear that the reopening of the case should be the exception and not the rule.

26. There are obviously competing issues, particularly in respect of a parenting case.  I’ve already highlighted the need to keep in the forefront of my mind the considerations under s 69ZN, and I am acutely aware that it is a parenting case, but equally I’m also aware of the decision of the Full Court in Rice & Asplund (1979) FLC 90-725, where their Honours considered that the very nature of litigation can itself be a matter adverse to the interests of a child or children and care must be exercised in order to ensure that the litigation itself does not become – does not have a adverse impact upon the child, that is, there needs to be a balancing act brought to account.

27. I have already determined that the Court is unlikely to be assisted in the circumstances of the application by any evidence from a family consultant.  That then confines the consideration to those matters in the affidavit of 23 June 2016, ignoring the response of the father, notwithstanding that he denies the assertions.  I consider that what has apparently occurred as far as the maternal grandmother is concerned is a resistance by the child following something that happened on 30 April 2016 in a car park.  The evidence is unlikely to rise above its source, particularly where the evidence is transferred from the child to his sister and from the sister, who is also a child, to the maternal grandmother and then presented in affidavit evidence to the Court.

28. It is difficult to see how the Court is going to be assisted by the further evidence set out in the affidavit.  The issue as to whether, irrespective of what may have caused it but presumably something that arises in respect of the child’s social functioning and presentation, has, for no fault of the father, caused the child to now react adversely to seeing his father is a matter that I consider was a live issue and should have been explored.  When I come to look at the evidence, it may well have been explored with the family consultant, but it seems to me that in the light of the evidence in the trial of the maternal grandmother as to the changeable nature of the child and the difficulty that she has had personally with the child, that these are all factors that, frankly, have either played out in the evidence that I’ve already heard or at least an opportunity was given for them to be explored, whether it be by the maternal grandmother, the independent children's lawyer or, indeed, by the father.

29. The application is pressed by the maternal grandmother, but it is not supported by the ICL.  The father also resists the application.  In the circumstances of this case, whilst I have considered all of the relevant factors necessary in determining whether a proceeding should be reopened once the case has closed and bringing into account the nature of the proceedings, namely, a parenting case, I consider that the degree, relevance and probative value of the further evidence is unlikely to assist the determination of this matter. 

1. I do not consider that it would be in the interests of justice for the proceedings to be reopened and to have further evidence called, with all that that entails, in respect of proceedings that have been before the Court again in one form or another for many years.  I am also concerned that the very nature of further proceedings may have an adverse and exacerbating impact upon the child.  Other issues, of course, may arise, and it may be that issues in respect of the child and the child’s behaviour and conduct and other issues now unforeseen that may affect the child in the future may well resonate in terms of further consideration by the Court, but I have to look at how those matters have been presented.

2. A level of rigour is required and the matter must stand or fall on the evidence that I have, and that is confined to the affidavit of the maternal grandmother filed on 23 June 2016.  I do not consider that those matters are sufficient to warrant all of the attendant risk and harm that may flow from the proceedings being reopened.  Accordingly, I propose to dismiss the application in a case. 

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 7 July 2016.

Associate: 

Date:  15 December 2016