Stuart and Stuart (No.2)
[2008] FMCAfam 191
•29 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STUART & STUART (No.2) | [2008] FMCAfam 191 |
| FAMILY LAW – Parenting – application to re-open – finality of proceedings – interests of justice – best interests of the child. |
| Family Law Act 1975 |
| Boman & Boman (1981) FLC ¶91-076 Cross on Evidence (Seventh Australian Edition) (J.D. Heydon) (Sydney: LexisNexis – Butterworths, 2004) |
| Applicant: | MR STUART |
| Respondent: | MS STUART |
| File number: | CAC 1800 of 2007 |
| Judgment of: | Neville FM |
| Hearing date: | 28 February 2008 |
| Date of last submission: | 28 February 2008 |
| Delivered at: | Canberra |
| Delivered on: | 29 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Godtschalk |
| Solicitors for the Applicant: | Walsh & Blair Lawyers |
| Counsel for the Respondent: | Mr Hubert |
| Solicitors for the Respondent: | Capon and Hubert Solicitors |
ORDERS
That the application be dismissed;
Costs reserved.
IT IS NOTED that publication of this judgment under the pseudonym Stuart & Stuart is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1800 of 2007
| MR STUART |
Applicant
And
| MS STUART |
Respondent
REASONS FOR JUDGMENT
Introduction[1]
[1] These reasons have been slightly revised for the purposes of publication from the original ex tempore judgment. Nothing said in the course of these reasons, or the ultimate result of this application, should be taken as indicative or determinative of the issues in the principal proceedings.
During the August sittings of this Court in W, just over two weeks ago on 12th February, I heard evidence from the parents of K and S. K is six and S three. That hearing concerned what parenting order should be made in relation to these young children.
Both parties were and continue to be represented by very experienced counsel. Likewise, both parties have instructed highly experienced solicitors. Detailed affidavits were filed, detailed chronologies and equally comprehensive case outlines were provided to the Court.
At the conclusion of evidence, as well as at appropriate junctures during the trial, submissions by the respective counsel were made, and of course a comprehensive, recently prepared, family report was and remains part of the materials available to the Court. I reserved my decision at that time and have yet to deliver judgment.
Application to Re-open
On 22nd February, that is 10 days after the trial, an application was made by Ms Stuart in which she seeks leave of the Court to reopen her case. She filed an affidavit affirmed on 20th February in support of the application.[2]
[2] As an aside, I note that Ms Stuart’s affidavit was affirmed rather than sworn. In the course of the hearing, and in documents filed prior to it, Ms Stuart’s strong religious convictions are raised as part of the factual matrix in the proceedings. The curiosity is simply that, in the light of that factual matrix, Ms Stuart consistently chooses to affirm rather than to swear her evidence. It is of course Ms Stuart's prerogative whether to give her testimony under oath or by affirmation, and obviously nothing turns at all on which way she has chosen to provide her evidence in that regard.
Her affidavit relates to a recent, post-trial incident in which three year old S fell off a bed while in the care of her paternal grandparents, and while her father was dining out. As a precaution S was taken to hospital. Ms Stuart has annexed to her affidavit the record from the emergency department of W Hospital dated 16 February. The notes state, in part, that there was a:
Shallow nose bridge laceration.
It is in slightly abbreviated form, but that is the way I read that note.
The notes also confirm that she was not concussed. Amongst other treatment, Panadol was prescribed. Ms Stuart also attached to her affidavit two photographs of S which showed the dressing to S's nose and some swelling to her right eye.
Ms Stuart deposes in her affidavit at para.13 that she took these photos "discreetly". In her affidavit and in submissions from Mr Hubert on her behalf the contentions made are essentially twofold as I comprehend them. Firstly, the degree of risk to the children if they are left in Mr Stuart's care and those with whom he entrusts the children when he is not present, and secondly, the failure to notify Ms Stuart of the medical treatment for S with the consequence that no parent attended S while she was at the hospital.
Ms Stuart confirmed that the paternal grandmother took the view that it was a relatively minor injury and therefore that it did not warrant either parent to be notified. The grandmother's view, according to Ms Stuart, was that the hospital visit was a precaution only. I need not for the purposes of this application rehearse the conjecture as to who actually attended the hospital.
Ms Stuart candidly and properly confirms that Mr Stuart has apologised for not ringing Ms Stuart about the incident and that she accepted his apology. She also states that the grandmother has confirmed that if any such event were to occur again she would ring Ms Stuart.
In the circumstances of the application which has been filed with a degree of urgency, no affidavit in reply has been filed by Mr Stuart. The issue for determination here is whether, either as a matter of law and/or as a matter of relevant or crucial evidence, the proceedings should formally be reopened.
Legal Principles
In addition to the helpful submissions regarding the facts provided by Mr Hubert, I was also assisted by Ms Godtschalk’s submissions regarding certain legal authorities. What I propose to do now is to summarise the position after a consideration of those authorities together with a number of other cases that are referred to in the list of authorities that I have provided the parties.
Ms Godstchalk referred me to four cases. They are decision of Roberts FM in H and S [2001] FMCAfam 143, Gelley & Gelley (No.1) (1992) FLC ¶92-290, Boman v. Boman (1981) FLC ¶91-076, and the House of Lords decision in Mulholland v Mitchell [1971] AC 666. In addition to these I note some additional cases, two of them, at least, of some significance. First, there is the joint judgment of Brennan, Dawson, Toohey, and Gaudron JJ in Smith v New South Wales Bar Association (1992) 108 ALR 55, and a decision of Clark JA in the New South Wales Court of Appeal, a decision with which Mahoney and Meagher JJA concurred.[3]
[3] [1992] NSWLR 471.
Most recently there has been a detailed discussion by the High Court in Goldsmith v Sandilands (2002) 190 ALR 370. I will come back to these judgments shortly.
Finally there is a summary of much of the case law in the 7th Australian Edition of Cross on Evidence (2004), notably at para.17.725. I have also consulted Phipson on Evidence (Fifteenth Edition), para.33-33, but which, in my view, does not really take the matter of reopening very far at all, except to refer to the very wide discretionary powers of the Court to entertain such an application and in appropriate circumstances to grant it.
Chronologically, the following overview of the legal principles will suffice. I begin firstly with two speeches from the House of Lords in Mulholland v Mitchell. The speech that seems to be more frequently cited or referred to is that of Lord Wilberforce, [1971] AC beginning at p.679. Referring to the issue of “re-opening”, at the bottom of the page Lord Wilberforce says this:
I do not think that in the end much more can usefully be said than in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree.
At the top of the next page [p.680] he goes on to say:
… it may be expected that Courts will allow fresh evidence when to refuse it would affront common sense or a sense of justice.
The other speech to which I wish to refer is that of Lord Pearson. The relevant passage at p. 681; it is very short. He simply says:
There is much advantage in finality.
Mulholland v Mitchell was a case regarding reopening. Their Lordships concluded that it was not a case in the interests of justice that warranted the proceedings to be reopened. Amongst other things, their Lordships seem to indicate, if I read them correctly, that there were other avenues once judgment was delivered, such as an appeal, that were open to the parties which should have been pursued rather than seeking to re-open.
The question of finality that was just referred to by Lord Pearson, was emphasised also in the joint judgment of the High Court in Smith v. New South Wales Bar Association. Again, I will take a few moments to read a passage from the joint judgment of Brennan, Dawson, Toohey, and Gaudron JJ. Deane J agreed in the result but by a different course. After referring to a relevant part of the Supreme Court Rules of New South Wales the joint judgment states (at p.60):
The power [to reopen or to admit further evidence] is discretionary and although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation.[4]
For current purposes, it is sufficient to highlight that Courts place significant emphasis upon the need to bring a proceedings to finality and at the earliest possible time.
[4] The cites in support of this statement the earlier High Court decision in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684.
The next relevant case is Urban Transport Authority v. Nweiser, particularly the judgment of Clark JA. At 28 NSWLR 478, his Honour said:
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. There is not, in my opinion, any hard and fast rule which requires the Court to reject an application where the decision not to call the witness in the party's case was a deliberate one…
Summarily, as a point of principle, it seems that Clarke JA’s accent, like that of Lord Wilberforce in Mulholland v Mitchell, was on `the interests of justice.’[5]
[5] Clarke JA went on to discuss various other scenarios as to how and why evidence was and was not led and the consequences of such action. See (1991) 28 NSWLR at 478-79.
The most recent High Court authority of which I am aware concerning “re-opening” is Goldsmith v Sandilands (2002) 190 ALR 370. There are three points from the judgments to which I wish to refer. I will not read them in full: I note them summarily unless otherwise required.
Gleeson CJ observed at the outset of his judgment that one of the concerns of the law is to adopt a certain pragmatic approach. Rather summarily, the Chief Justice said:
The adversarial system of civil litigation would collapse if the adversaries were permitted to lead evidence about every matter of contention that arises in the course of proceedings.
The matter raised by Ms Stuart is, respectfully, another “matter in contention” that has arisen in the course of proceedings. In my view it is like others that were raised in the course of the trial in W very recently.
Secondly, although stated more in the context of granting or refusing leave to call evidence (as opposed to re-opening), McHugh J and Kirby J made general observations which echo those of Lords Wilberforce and Pearson to which I have already referred.[6]
[6] See (2002) 190 ALR at 374-382 (McHugh J) & 382-392 (Kirby J).
The third comment that I would make about Goldsmith v Sandilands is that, in Callinan J's judgment [par.107], his Honour refers to the assessment of the evidence that is proposed to be led if the case is reopened. On the facts of the case before him, he took the view that even if the case had been re-opened and the evidence had been allowed in, the outcome would not have been altered in any material respect.
I move briefly to the remarks of Treyvaud J in Gelley v Gelley (No.1), which was heavily relied upon by Ms Godtschalk at the hearing of the application. In that case his Honour quoted, with obvious approval, the remarks of the Chief Justice of the Supreme Court of Western Australian in Watson v. Metropolitan Perth Passenger Transport Trust [1965] WAR at pages 88-89. I simply quote the extract that is cited at FLC ¶92-290 p. 79,146.
There is a dearth of authority as to the circumstances in which the Court should reopen the evidence after the trial is concluded -
To interpose there: respectfully there have been a few more, as I have indicated, than there was at the time in 1992, although perhaps his Honour was not aware of the important New South Wales Court of Appeal in Urban Transit Authority of NSW v Nweiser to which I have referred, not to mention that of the High Court in Smith v NSW Bar Association. Both cases were reported in 1992, the same year in which Gelley also appeared. I note these matters simply as matters of historical record, not as a criticism of Treyvaud J.
I consider that a Court should be cautious in doing so and should admit fresh evidence of this nature only when it is so material that the interests of justice require it and the evidence if believed would most probably affect the result.
This is sufficient, in my view, for the purposes of these reasons and orders that are to come. Clearly, there are echoes of Lord Wilberforce, and others, here in the emphasis on the `the interests of justice’ and the possible of likely effect of the evidence on the ultimate result.
Finally, in the judgment of Roberts FM in H&S, his Honour followed Treyvaud J's judgment in Gelley & Gelley (No.1). The facts in the application in H&S to reopen alleged very serious matters, including drug use by the father and the effect of domestic violence on the mother. The application to reopen was refused.
Determination & Conclusion
The facts deposed to in this application focus on an injury to S while she was in the care of her grandparents, as I have already noted, and while her father was out to dinner some distance away. While any injury to a child is of natural concern to any parent, the main cause for anxiety here is the fact that Ms Stuart only learnt of the event, including S going to hospital, after the event.
I have already indicated that Mr Stuart has apologised for the lack of immediate communication, although it must be questioned as to how immediate it could have been on his part seeing that he did not know of the incident himself until some time later. I have also noted that the paternal grandmother has confirmed to the mother that she will be telephoned in the future should any such incident occur again. I can confirm to the parties that whatever the result in the principal proceedings there will be an order requiring the parties to notify the other parent of any medical treatment or attention to the children and that this should occur as expeditiously as possible.
It might also be noted, as Ms Stuart has again properly done in her affidavit, that children do have accidents. Indeed, there is the possibility that a similar accident involving either of the children could just as likely occur if either parent were physically present in the home. It seems to me that the best interests of the children in this case are to have the contest between the parents resolved as soon as possible. In my view, to allow new evidence, which presumably would lead to or require evidence in reply, which may in turn lead to further cross-examination of both parties, would inevitably prolong the finalisation of the proceedings. In my view, the evidence is of a kind that is already before the Court. No less significantly, to exclude this later evidence would not, in my view, be likely to alter the ultimate outcome in any material respect.
In short, in my view, the interests of justice of both parties, and especially the children, are not compromised by rejecting the application of Ms Stuart to reopen. Accordingly, the application is dismissed. Although there is no formal application by either party as to costs, I propose reserving them.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 27 March 2008
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