Suell & Suell (Re-Opening)
[2009] FamCA 55
•5 February 2009
FAMILY COURT OF AUSTRALIA
| SUELL & SUELL (RE-OPENING ) | [2009] FamCA 55 |
| FAMILY LAW – PRACTICE AND PROCEDURE - Leave to Reopen – Principles Applicable – Factors informing the exercise of discretion |
| Family Law Act 1975 (Cth) |
| Gelley & Gelley (1992) FLC 92-290 Smith v NSW Bar Association (1992) 176 CLR 256 Urban Transport Authority v NSEISER (1992) 28 NSWLR 471 EBv CT (No. 2) [2008] QSC 306 CDJ v VAJ [1998] FLC, 92-828 Reid v Brett [2005] VSC 18 at 41 |
| APPLICANT: | Ms Suell |
| RESPONDENT: | Mr Suell |
| INDEPENDENT CHILDREN’S LAWYER: | Peter Williams |
| FILE NUMBER: | BRC | 6774 | of | 2007 |
| DATE DELIVERED: | 5 February 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 28 January 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hamwood |
| SOLICITOR FOR THE APPLICANT: | KL King & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr North SC |
| SOLICITOR FOR THE RESPONDENT: | Murdoch Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Williams Williams Lawyers |
Orders
The mother is granted leave to re-open the parenting proceedings between her and the father otherwise concluded on 31 October so as to permit the mother to adduce further evidence.
Leave to re-open the proceedings will be subject to the following conditions:
(a)The evidence to be led by the mother in those re-opened proceedings will be limited to:
(i)The alleged cessation of the father’s relationship with Ms G (and her children);
(ii)The alleged consequent change/s in the father’s proposed care environment and arrangements for V;
(iii)The alleged change of circumstance that the father’s adult daughter S is no longer part of his household;
(iv)Any alleged consequent change/s in the father’s proposed care environment and arrangements for V;
(v)The alleged change in Mr K’s immigration position and any alleged resultant change in his future availability as a carer for V;
(vi)The alleged change in the mother’s parents’ living arrangements, including their immigration position and any alleged resultant change in their current and future capacity and plans for a role in the mother’s and V’s lives.
(b)The evidence proposed to be called by the mother in compliance with paragraph (a) above shall be sworn to in affidavits filed and served by the mother by not later than 4.00pm on 11th February, 2009.
(c)No such affidavit shall be filed except by a deponent who is available to be cross-examined in person at the re-opened hearing;
(d)The father is given leave to file and serve an affidavit or affidavits restricted to the issues raised directly by the affidavits filed and served by the mother;
(e)No such affidavit shall be filed except by a deponent who is available to be cross-examined in person at the re-opened hearing
(f)Any such affidavit or affidavits shall be filed and served by not later than 4.00pm on 25th February 2009.
The further hearing of parenting proceedings shall proceed at 9.30am on 18 March 2009 and 11.00am on 19 March 2009 in the Brisbane Registry of the Family Court of Australia.
IT IS NOTED that publication of this judgment under the pseudonym Suell and Suell (Re-opening) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 6774 of 2007
| MS SUELL |
Applicant
And
| MR SUELL |
Respondent
REASONS FOR JUDGMENT
On 31 October 2008 a six day hearing of parenting issues between the parties to the instant Application in a Case concluded. Judgment was reserved and has not been delivered. By the instant application, the mother seeks to re-open those proceedings.
The order sought by the mother is that “leave be granted for this matter to be reopened and for the applicant mother, [Ms Suell] to adduce further evidence.”
The issues in the substantive parenting case are complex and difficult. The child the subject of the proceedings, V, is a child with significant special needs. He has been in the predominant care of his mother. Significant issues were raised at the trial said to result in a conclusion that the child was at significant risk in his mother’s care.
Some of those allegations relate to a risk said to be posed by the mother’s failure or refusal to take medication in respect of her seizure condition. Further risk is said to attend the child in her care by reason of her psychiatric condition, which is said to result in a risk of self harm to her and harm to the child.
At the hearing, the father’s case, which would see him assume full time care for V, was mounted within the framework of him being in a new relationship with Ms G and living in a household with her children. The father’s adult child from a previous relationship, S, was also then present in the household. It was said at the hearing that V would join that household.
An affidavit of the mother filed on 15 December 2008 deposes to further evidence sought to be adduced by her as follows:
a)Evidence that a person Mr K who has been a live-in carer for V for a significant period of time, but who is not an Australian citizen, has seen a change in his immigration situation from that which applied at the trial.
b)The mother’s father (who is a South African national) has applied for, and obtained, a twelve-month, multiple-entry visa to Australia and has commenced residing in Australia with the mother and V. It is also said that there will be evidence that he and his wife are eligible to apply for permanent residence in Australia and intend to do so.
c)The father’s partner separated from him some six weeks or so subsequent to the completion of the hearing and has re-commenced residing permanently with her former husband together with her children.
d)The father’s adult child from a previous relationship, S, who was also residing in his household at the time of the hearing, no longer does so.
e)Finally, it is sought to, as it were, “correct” evidence of Dr M who is the mother’s treating medical specialist for her seizure disorder.
What are the Applicable Principles?
Division 12A of the Act now governs the conduct and hearing of parenting cases in this Court. Its wide-ranging provisions have the potential to impact on the current application.
Prior to the introduction of Division 12A, it might broadly be said that common law principles governed applications to reopen in this Court. (see eg Gelley & Gelley (1992) FLC 92-290 and the cases there discussed).
Those principles make it clear that the granting of leave to reopen is discretionary. That discretion is guided by the interests of justice. The essential question is, is the court more able to do justice in the facts and circumstances of the particular case if the application is granted. (see eg Smith v NSW Bar Association (1992) 176 CLR 256; Urban Transport Authority v NSEISER (1992) 28 NSWLR 471 at 478 and EBv CT (No. 2) [2008] QSC 306)
In cases where reasons for judgment have not been delivered, the High Court has held that the primary consideration should be embarrassment or prejudice to the other side. (see Smith above, at 266-267)
Prejudice or embarrassment, though, is a broad concept and is not limited merely to cost or expense. The significant stress imposed upon litigants, particularly where the prior litigation history has been lengthy, has been widely recognised as an element of prejudice. Moreover, litigants have a right to expect finality in litigation.
Parenting orders, however, involve – and involve crucially a person who is not a litigant. This Court is compelled legislatively (and, in any event, is continually aware) in such cases to be aware that the primary interests are those of the child.
The High Court has held, in the context of an application to admit further evidence on appeal, that such an order is not a ‘parenting order’ in terms of s 64B of the Act (see CDJ v VAJ [1998] FLC, 92-828). The effect of that, as the High Court pointed out, is that the ‘paramountcy principle’ predominating the best interests of children does not directly apply.
However, the High Court went on to say:-
“…nevertheless the Full Court of the Family Court was plainly right in concluding that the principle was relevant to the question whether further evidence should be admitted by the Full Court…. In an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter at issue, the principles which govern the resolution of that case are the same for the Full Court as they are for the Judge at first instance. Consequently, the Full Court is bound to have regard to the best interests of the child as a paramount consideration when determining the appeal.” (at para 87 per McHugh, Gummow and Callinan JJ)
The High Court also pointed out in that context, that, in effect, the admission of fresh evidence on an appeal is the exception rather than the rule. Finality to litigation and the other factors earlier mentioned are directly relevant.
A distinction between the principles applicable to re-opening on appeal and those applicable to re-opening a trial can also be seen in that judgment. More is required in that context than “a real chance that the order does not serve the best interests of the child. In the case of re-opening a parenting trial, it must be borne in mind that, at issue in the substantive proceedings is the initial determination of what is in the best interests of the child.
That said, it seems to me that, similarly to proceedings to re-opening a parenting appeal, the instant proceedings are not “child related proceedings” within the meaning of the Act (see s 69ZM).
However, s 69ZN(1)(b) makes it clear that the principles outlined in that section will apply to this application if it involves a decision “about the conduct of child related proceedings”. In my view, it clearly does.
Plainly, then, the application of the principles in that section to which “the Court must give effect” have the potential to impact upon the decision to be made here.
For example the Court is instructed to “consider the needs of the child concerned and the impact of the conduct that the proceedings may have on the child in determining the conduct of the proceedings”. This is a principle the specific application of which might be seen to be akin to the notion of prejudice at common law earlier discussed.
As another example, s 69ZN (7) provides that:-
“the fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”.
The principles just referred to find application in mandatory duties imposed upon the Court including, in particular, a duty to “deal with as many aspects of the matter as it can on a single occasion”.
Division 12A of the Act might also be seen as ameliorating the strictures of the formal procedures with respect to matters within the contemplation of s69ZN(1). The abolition of many of the rules of evidence (s 69ZT) can be seen as a stark example of that.
It seems to me that the legislature seeks to reinforce that intention in s 69ZR (1) of the Act which provides as follows:-
“If, at any time after the commencement of child-related proceedings and before making final orders, the Court considers that it may assist in the determination of the dispute between the parties, the Court may do any or all of the following:
a)make a finding of fact in relation to the proceedings;
b)determine a matter arising out of the proceedings;
c)make an order in relation to an issue arising out of the proceedings.
Note: For example, the Court may choose to use this power if the Court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.”
I consider the specific reference to the timeframe “before making final orders” and the two additional specific references to matters or issues “arising out of the proceedings” evidence the legislature contemplating that matters may arise after the final hearing of a matter, but before final orders are made, which, by reason of their relevance to arriving at decisions with respect to the bests interests of a child, ought be properly considered by the court.
Reference is made in the written submissions of Mr North SC, counsel for the respondent father, to criteria for the exercise of the discretion to re-open enumerated by the Victorian Supreme Court in Reid v Brett [2005] VSC 18 @ 41 and to the citing of those criteria with approval by Applegarth J in EB v CT [2008] QSC 306.
By reference to those decisions (and, indeed, to other authorities including those specifically referred to earlier in these reasons and in the written submissions just referred to by Mr North SC), I consider that, when account is taken of Division 12A, the factors relevant to the exercise of my discretion in this application include the following:
· Is the further evidence relevant to issues directly affecting V’s best interests and the ultimate decision about that?;
· Is the further evidence likely to affect, in a substantial way, the ultimate finding or findings that would otherwise have been available on the evidence at the hearing?;
· Could the further evidence have, with due diligence and preparation, been discovered so as to be led at the trial and, associated therewith has there been undue delay on the part of the applicant in bringing the application, particularly in light of s.69ZN(7);
· The nature and extent of any prejudice which is likely to be caused to the respondent in responding to any such evidence within a reasonable time;
· Is V likely to suffer detriment if the evidence is admitted and the trial re-opened, and, if so, the nature and extent of any such detriment;
· Recognition of the principle that it is in V’s best interests (and his parents) that parenting litigation be finalised as soon as possible;
· Recognition of the fact that proceedings for parenting orders are not in the nature of ordinary inter-party proceedings; they may involve a broader inquiry into the best interests of children than that which is circumscribed by the issues identified by the parties;
· The fact that the discretion to admit further evidence “… needs to be exercised with much care in parenting cases”. (See CDJ v VAJ @ Para [117].
In addition, it needs to be borne in mind, in my view, that further parenting proceedings, by reason of their nature, and because they are now conducted within Division 12A, run the risk of requiring greater exploration of issues than might be the case in other litigation, (which such litigation is often confined by pleadings), and where parenting proceedings can be driven by values as well as facts. (As to the latter, CDJ v VAJ @ [152].
What is the Nature of the Proposed Evidence in this Case and it’s Context?
There is little doubt that, on the evidence before the Court at the substantive hearing, the mother has been the predominant carer for the child during the erstwhile course of his life. By his application the father seeks to alter that position significantly.
Clearly enough, as each party asserts, the child’s undoubted special needs are highly relevant to the considerations required by the Court to be taken into account in arriving at findings about the child’s best interests.
In particular, and as examples, it can be seen that the likely effect of changes in V’s circumstances; the capacity of each of the parties to undertake a miscellany of day to day tasks; the nature of the relationship that V has with each of his parents and other persons who are likely to be important to his care, welfare and development are all highly relevant to the ultimate decision made by the court.
At the time of the hearing, the father postulated a predominant care scenario – new to V - which included significant, direct input from his partner, Ms G both in respect of “usual” parenting matters and those specific to V’s special needs.
Ms G is a parent herself. She was said to have a good relationship with V and to possess qualities which would assist in his care and providing the requisite degree of emotional comfort and security in circumstances where orders resulted in the carrying out of V’s day to day care was entrusted to the father.
Evidence sought to be lead by the mother is that approximately six weeks after the conclusion of the trial the mother ascertained that Ms G was no longer in a relationship with the father and/or was no longer residing, together with her children, with the father.
Current material before the Court in respect of that assertion is hearsay. Hearsay evidence is admissible in any resumed parenting proceedings (see s 69ZT). The mother swears in an Affidavit in support of the current application that:-
“The biological father of [Ms G’s] children, [Mr R], contacted me and told me the following:
1) the father’s partner [Ms G], separated from him last Saturday [which, I assume, to be Saturday 29 November 2008] and returned to reside permanently with [Mr G] on Monday 1 December 2008 with both of her children.
2) [Mr R] will also give evidence that at the time the swearing of this affidavit the father’s [adult] daughter [S] no longer resides with him, having left after the court case.”
Counsel for the applicant mother, Mr Hamwood, submits that “the best evidence” will be available at the reopened hearing, although the specifics of that remain unclear.
It appears, that in this case, the best evidence will nevertheless, at least in part, likely be (admissible) hearsay. The source of the information currently in the possession of Mr R is not given either in respect of the allegation with respect to Ms G or in respect of S.
Secondly, the mother also seeks to lead evidence in respect of her parents. That evidence, too, is contained in an affidavit by her as distinct, for example, from her father who is apparently living with her. The mother deposes:-
“My father, [the maternal grandfather], has applied for and has now obtained a 12 month multiple entry visa. This requires him to reside in Australia for a period of 12 months but will require that each 3 months he leaves Australia and returns. This would require only an overnight trip to New Zealand. My father has commenced residing in Australia with [the child] and I on 8 December 2008. He will continue to reside with us for that 12 month period.
4. In addition to the forgoing, my father and I have discovered that he is eligible as at May 2009 to apply with my mother for permanent residence in Australia (he was not able to do so previously as he is required to be in remission from cancer for a period of 2 years).
Both of my parents intend pursuing that application. In the event that it is accepted, they will reside permanently in Australia with [the child] and I.
Although the affidavit swears that the Mother’s Father “has commenced” residing with the child and the Mother “on 8 December 2008”, I note that the affidavit is sworn by the Mother on 4 December 2008.
The affidavit of the Mother was filed on 15 December 2008. No application for leave to file and read an affidavit by her Father was made at the hearing which occurred on 28 January 2009.
No affidavit was sought, either, to be filed by Mr R. Rather, there is a statement of further intent that he will “give evidence”. No explanation is offered why an affidavit by Mr R is not available for the purposes of this application.
I consider it extremely unfortunate that, in making an application to reopen a trial after 6 days of hearing, evidence is not presented to the Court in the form in which it is said will be available to the Court at the time of the reopened hearing, unless some satisfactory explanation can be offered for its absence.
Doing so properly allows the Court (and the other parties) to better assess that evidence in light of the discretionary considerations applicable to the application.
Importantly, doing so also provides a much better basis for attempting to assess how long any reopened hearing might take and, therefore, a better basis for assessing the potential delay involved in allocating those trial dates.
An affidavit is filed by V’s live-in carer Mr K.
There is little doubt that the evidence at the trial reveals that Mr K has been a significant part of the environment within which the child was cared for on a day to day basis by the Mother. There also seems little doubt on the evidence that Mr K had an appropriate warm, caring relationship with the child.
At the time of the hearing, Mr K’s immigration status was in doubt. He deposes now to the fact that, on 3 December 2008, he was granted a three-month bridging visa which permits him to continue to reside in Australia until his application for a two year visa “comes into effect”.
He further deposes that:-
“I have obtained sponsorship with a developing foundation to sponsor me as a skilled carer to work for them. By far, the most difficult part of my application relating to this, is the business sponsorship part of the application. This has been granted. I will work for the Foundation and [V] will be my primary client. I will continue to reside with [V] and [the mother]…”
The evidence of Dr M falls, in my view, into a slightly different category. The Mother deposes:-
“Following the cross-examination of Dr [M], he has contacted me and advised me:
(1) he is prepared to swear an affidavit to the effect that:
(i) at the time he was cross examined he did not have his notes with him;
(ii) he has now perused his notes and will give evidence to the effect that I did in fact notify him of my last two hospital attendances and indeed that I have notified him of most, if not all, of my attendances;
(iii) that he has at all times been satisfied that it has been appropriate for me to drive, despite my recent hospital attendances due to the fact that I always have a significant period of warning prior to the onset of a seizure.”
An affidavit of Dr M was filed on 28 January 2009. It annexes a letter by him dated 20 January 2009 addressed to the Mother’s solicitor. It provides, in full:-
“With reference to [the mother’s] established seizure disorder, unfortunately, at the time of the original court process I had received few details concerning [the mother’s] evaluations at pertinent medical institutions on the Gold Coast. However, I have since learned that, evaluations had occurred on 29 November 2003, 30 November 2003, 1 December 2003, 18 March 2004, 26 July 2004, 1 December 2004, 12 January 2005, 24 March 2005, 14 September 2005, 11 January 2006, 2 August 2006, 1 November 2006, 26 March 2008 and 9 October 2008. On these occasions, she had presented with seizure activity, invariably in the setting of omitted anti-epileptic drug therapy, usually within the scenario of emotional stress. On one occasion she had also imbibed a small quantity of alcohol.
Further, at the time of my assessment on 12 January 2009, I learned that she had suffered no further clinical seizures over an interval of three months whilst employing, with excellent compliance, a combination of Levetiracetam 1 gm daily and Topiramate 400mgs daily.
Further, currently she avoids all alcoholic beverages and, further, employs a Webster Pack Program in order to reduce impaired compliance with her epileptic drug therapy. In my opinion, as these guidelines are being pursued actively at the present time, her risk of further seizure activity is relatively low and, further, in my opinion, there is no major risk in the care of her young child. Should further information be required, please do not hesitate to contact me.”
It will be appreciated that differences exist between what the Mother swears that Dr M would swear and what is in fact contained in the (unsworn) document just referred to.
This is, of course an additional reason why it is, generally speaking, unsatisfactory for an applicant to depose to what it is anticipated further evidence will be, as distinct from that future evidence itself being before the Court.
How Should the Discretion be Exercised?
(a)The Evidence of Dr M
Mr Hamwood, counsel for the Applicant Mother, submits that, as a matter of justice, Dr M’s evidence ought be permitted. He submits that it isn’t merely a question of “patching up” his earlier evidence or the earlier evidence of the Mother, but rather the evidence seeks to correct evidence which is clearly mistaken and which arose from the fact that the Doctor did not have his notes before him when giving evidence.
Whilst the Mother asserts what Dr M will swear, that is by no means apparent to me from what Dr M has included in the document just quoted.
Plainly, much of what Dr M refers to must be entirely dependent upon what his patient, the Mother, has told him. An example is his assertion that “she avoids all alcoholic beverages” The mother’s drinking is a controversial issue explored at the trial and which may be the subject of findings emanating from evidence given at the trial. The doctor’s assertions as to what the mother has told him are unlikely to assist me.
Whilst the Doctor speaks of the use of a “Webster Pack Program” (which, it is submitted from the bar table, is a system which assists patients to take all prescribed drugs on particular days by allocating those drugs to particular days), the doctor’s evidence about the Mother’s compliance with that regime must be, at least partly, as the Mother reports it to be to the doctor.. That issue, too, falls into the category described in the previous paragraph.
The doctor says nothing about his notes in the document.
In my opinion, the further evidence sought to be led by Dr M – to the extent that such further evidence is in any event clear, and in my view it is not – seeks to clarify or expand upon matters available to the Mother and Dr M at the time of the trial which, with due diligence and preparation, could have been provided at the time of the trial.
Furthermore, I am not convinced that the further evidence of Dr M – whether of the nature the wife alleges or of the nature outlined by the doctor in his letter – takes the issue of risk, or, more broadly, V’s best interests, any further than that which was identified and explored at the trial.
(b) Ms. G and S
Despite the misgivings earlier expressed about the form in which further evidence sought to be led by the Mother is currently presented, I have come to the conclusion that the Court will be assisted significantly in arriving at a decision about V’s best interests by receiving evidence which, at least at face value, appears to have the potential to change significantly the putative care arrangements upon which the Father relied at the hearing.
Given the erstwhile arrangements for the child and given that he is a child with special needs, I consider that issue to be an important matter.
I consider it has the potential to affect the decision in this very difficult case
Into that category also falls the prospective evidence asserted to be led with respect to the father’s adult child, S. She is a sibling of the child’s and a person who, at the hearing, was suggested as continuing to share a household with him and, therefore, by reason of his extensive special needs, to share, at least in part, in the overall care and support of him.
By its nature, the evidence, if proved, is not evidence which could have been obtained by due diligence and preparation at the time of trial – it relates to mattes said to have occurred since the trial.
I consider that the husband is not unduly prejudiced in responding to that evidence. I do not consider that there has been undue delay in the bringing of this application by the mother.
I consider that, save for the prolongation of the litigation generally, V will not suffer any particular prejudice by the leading of such evidence at trial and I do not consider that the evidence has a significant potential to open new issues which will need to be addressed in order to arrive at ultimate findings.
(c) The Mother’s Parents and Mr K
I consider, in respect of matters raised at the trial by both the Mother and Mr K, that his future role as a carer in V’s life, and any potential role he may or may not have in ameliorating any risk contended for by the father and found by the Court to reside in the Mother, are matters of considerable significance.
I consider that evidence relating to Mr K’s continuing role in the child’s life and the potential for that to continue (or not continue as the case may be), is important evidence in arriving at orders in V’s best interests.
There is no doubt that the issue of any risk presented to the child by the mother in all of the contexts in which that issue was explored at the trial, is a crucial and live issue. That issue had, as part of its context, the wife’s management of both her medical condition (a seizure disorder) and her psychiatric condition.
By reference to, for example, the evidence of the wife’s treating psychiatrist given at the trial and the allegations and counter-allegations in respect of the parties’ alleged conduct towards each other (and, in the mothers case, the impact that such alleged contact is said to have on her psychological health and capacity to cope), I consider the issue of the mother’s “support systems” to be an important issue in the proceedings.
Indeed, a component of the father’s case at the hearing would indicate this to be so.
I can readily see that the evidence sought to be led from the mother’s father (and Mr. K), might bear directly upon that important issue.
Whilst evidence in respect of that issue was certainly available at the hearing (and canvassed), recent, post-hearing developments in respect of aspects of that issue – the alleged change in the immigration position and the apparent position which would see the mother’s father (and perhaps mother) residing either for the next twelve months and/or permanently in Australia - have the potential of themselves to be significant in ultimate findings about best interests.
Obviously, similar considerations apply to the proposed further evidence of Mr. K.
Each piece of evidence can, at least in material respects, in my view be said to have arisen since the hearing and not available to the mother with the exercise of due diligence and preparation at the time of the hearing.
The evidence is, in my view, directly relevant, not only to the issue of risk as just described, but also directly relevant to other s 60CC Considerations and, indeed, some of the objects and principles of the legislation.
The mother’s father (and mother), are adults who have important potential roles in V’s care, welfare and development, and form part of V’s extended family. V has a right “to spend time on a regular basis with, and communicate on a regular basis with, relevantly, people significant to his care, welfare and development”, and in particular, people such as his grandparents and other relatives. (s 60B(2))
The nature of V’s relationship with each of his parents as well as other persons (including in particular any grandparent or other relative) is a specific matter which the court is required to take into account in determining the child’s best interests.
Although not a family member, I consider Mr K to be a person “concerned for [V’s] care, welfare and development”. V’s rights apply to him also.
Given the history of acrimony and conflict between the parents in this case and the assertions made by the mother at the trial in respect of the stress caused to her by the father, it may be that the presence of each of Mr K and the grandfather might also be relevant to the “willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship” between V and the other parent within the meaning of s.60CC (3).
So, too, it may be relevant to the mother’s parental capacity which such consideration was squarely in issue at the hearing.
I am, as I have indicated troubled by whether the evidence ought to have been available through due diligence at the trial. I consider that – at face value – the recent developments with respect to Mr K were not. The evidence of the mother’s father is more troubling in that respect but, again at face value, it seems tolerably clear that material aspects of it were not.
Again, I consider that the husband is not unduly prejudiced in responding to that evidence. In addition, I consider that the child will not suffer any particular prejudice by the leading of such evidence at trial and I do not consider that the evidence has a significant potential to open new issues which will need to be addressed in order to arrive at ultimate findings.
(d) General Considerations
I am acutely aware that success in the application brought by the mother, means that the litigation will not be finalised until after the re-opened proceedings and judgment is delivered.
I am acutely aware that this has the potential to add to (or at least not diminish) the high conflict between V’s parents.
It has the potential to impact adversely on V, although, I note, as observed above, there is no direct evidence to that effect before me in the context of this application.
I am acutely aware that I am under an obligation under the legislation to consider, as a matter uppermost in my mind, that parenting proceedings should be conducted without undue delay and brought to finality as soon as possible.
I am also under any obligation (which, quite apart from its statutory foundation, the court feels acutely) to do whatever the court can to remove the stress on V that might be occasioned by these proceedings.
Generally, the power to re-open should be exercised sparingly and with considerable circumspection in the case of parenting orders.
I have carefully considered each of those matters and weighed them with what I consider to be the utility, and potential persuasiveness, of the mooted evidence in the determination of V’s best interests.
Conclusions
Ultimately, although the balance is a fine one, I am of the view that, in this complex and extremely difficult parenting case, I should exercise my discretion to grant the mother leave to reopen her case so as to adduce further evidence therein, save in respect of the mooted evidence from Dr M subject to conditions designed to address the matters about which I have expressed concern in these reasons.
It will be clear form these Reasons that the leave to reopen should be confined to adducing evidence solely in respect of those matters arising since the hearing and found by me to be directly relevant to V’s best interests as outlined in these Reasons and which will be summarised below.
In that regard I was minded to restrict the evidence to that emanating from the mother, Mr K, the mother’s father, and Mr R. However, I am mindful that Mr Hamwood submitted on behalf of the mother during the course of this application, that he intended to adduce “the best evidence” in support of the relevant issues arising post trial, so that, potentially at least, alternative deponents may provide the evidence.
The mother will be granted leave to re-open the parenting proceedings between her and the father otherwise concluded on 31 October. That leave to re-open will be subject to conditions that :
(a)The evidence to be led by the mother in those re-opened proceedings will be limited to:
(i)The alleged cessation of the father’s relationship with Ms G (and her children);
(vii)The alleged consequent change/s in the father’s proposed care environment and arrangements for V;
(viii)The alleged change of circumstance that the father’s adult daughter S is no longer part of his household;
(ix)Any alleged consequent change/s in the father’s proposed care environment and arrangements for V;
(x)The alleged change in Mr K’s immigration position and any alleged resultant change in his future availability as a carer for V;
(xi)The alleged change in the mother’s parents’ living arrangements, including their immigration position and any alleged resultant change in their current and future capacity and plans for a role in the mother’s and V’s lives.
(b)The evidence proposed to be called by the mother in compliance with paragraph (a) shall be sworn to in affidavits filed and served by the mother by not later than 4pm on 11th February, 2009.
(c)No such affidavit shall be filed except by a deponent who is available to be cross-examined in person at the re-opened hearing;
(d)The father is given leave to file and serve an affidavit or affidavits restricted to the issues raised directly by the affidavits filed and served by the mother;
(e)No such affidavit shall be filed except by a deponent who is available to be cross-examined in person at the re-opened hearing
(f)Any such affidavit or affidavits shall be filed and served by not later than 4pm on 25th February 2009.
The further hearing of this matter shall occur on dates to be advised at the time of the delivery of these Reasons.
It is noted that, at the conclusion of the hearing of the instant application I sought from counsel available dates. It is obviously highly desirable that those counsel who conducted the hearing of this matter be available for the further hearing. However, I make it plain that I am not prepared to countenance an undue delay because I consider any such undue delay to be directly contrary to V’s best interests.
I order accordingly.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy
Associate:
Date: 5 February 2009
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