Suell & Suell (Re-Opening)

Case [2009] FamCA 55

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

  1. 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.

  2. 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.

  1. 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…

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Suell & Suell (Re-Opening) [2009] FamCA 55
Case
[2009] FamCA 55
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CaseChat Overview and Summary

In *Suell & Suell (Re-Opening)*, Murphy J of the Family Court of Australia considered an application by the mother for leave to re-open parenting proceedings that had been concluded on 31 October. The father was the other party to these proceedings.

The central legal issue before the Court was whether the mother should be granted leave to adduce further evidence in the previously concluded parenting proceedings. This involved determining if there had been a material change in circumstances since the original orders were made, justifying a re-opening of the case.

Murphy J reasoned that the mother had established a sufficient basis to re-open the proceedings, allowing her to present evidence concerning specific alleged changes in circumstances. These included the father's alleged cessation of a relationship, changes in his proposed care arrangements for the child V, the departure of his adult daughter from his household, and shifts in the immigration status and availability of Mr K and the mother's parents, who were involved in the care arrangements. The Court imposed strict conditions on the re-opening, limiting the scope of the mother's evidence to these specific matters and requiring affidavits to be filed by a set date, with deponents available for cross-examination. The father was granted leave to respond with his own affidavits on the issues raised by the mother.

The Court ordered that the mother be granted leave to re-open the parenting proceedings, subject to the conditions outlined. A further hearing was scheduled for 18 and 19 March 2009 to consider the further evidence.

Orders

Orders of the court

1.

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.

2.

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.

3.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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