Suess & Jackson (Re-opening) - [2009] FamCA 164

FAMILY COURT OF AUSTRALIA

SUESS & JACKSON (RE-OPENING)

[2009] FamCA 164

FAMILY LAW – PRACTICE AND PROCEDURE – Re-opening of case

Family Law Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth)

CDJ v VAJ (1998) 23 FamLR 755
Smith v Bar Association (No.2) (1992) 176 CLR 256 at 267

APPLICANT:

Mrs Suess (Snr)

RESPONDENT:

Mr Jackson

INDEPENDENT CHILDREN’S LAWYER:

Mr Grant

FILE NUMBER:

BRF

217

2006

DATE DELIVERED:

12 March 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

6 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Burrows
Andrew Burrows & Associates
Mitchelton

SOLICITOR FOR THE RESPONDENT:

Ms Burgess
Aylward Game Solicitors
Brisbane

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Grant
Grant & Associates
Brisbane

Orders

IT IS ORDERED THAT

The parenting proceedings with respect to V born … May 2004 and B born … November 2005 be reopened so as to enable the maternal grandmother to adduce evidence and file an application with respect to parenting orders sought by her.
In view of the exceptional circumstances in this case, the parties are excused from complying with the Child Responsive Programme of this Court.
The matter is listed for a 1^st day of trial before Justice Jordan at 10.00am on 27 March 2009 in the Brisbane Registry of the Family Court of Australia.

NOTATION:

(a)Each of the relevant parties, are now represented and Mr Grant continues as the Independent Children's Lawyer in these proceedings.
(b)The Independent Children's Lawyer has indicated that there is a prospect that the parties may enter upon intelligent discussions focussed on the children’s best interests, with a view to resolving the matter.
(c)In the event that the parties reach agreement prior to the hearing listed on 27 March 2009, they are at liberty to forward minutes of consent by email to the chambers of Justice Murphy, and unless any of the parties submit otherwise, those orders will be considered in chambers and if appropriate, made by consent, with no requirement for appearance by any of the parties.

IT IS NOTED that publication of this judgment under the pseudonym Suess & Jackson (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: BRF 217 of 2006

MRS SUESS (SNR)

Applicant Maternal Grandmother

And

MR JACKSON

Respondent Father

REASONS FOR JUDGMENT

On 1 December 2008, Ex Tempore Reasons for Judgment were delivered and final parenting orders were made which brought to an end long-standing parenting proceedings. These orders were made in somewhat unusual circumstances.
I noted in those reasons that this matter has had a very long and complex history involving the interrelationship between three sets of parents and their children. The maternal grandmother, Mrs Suess (Snr), was an original applicant in these proceedings. Her daughter, Ms A Suess, is the mother of five children to three different fathers and she, too, was a party.
Those reasons recorded a “sad and tragic background” to the parenting dispute.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Suess & Jackson (Re-opening)

Details

AGLC: Suess & Jackson (Re-opening) [2009] FamCA 164
Case: [2009] FamCA 164
Decision Date: 12 March 2009

CaseChat Overview and Summary

In the matter of *Suess & Jackson (Re-opening)*, Murphy J of the Family Court of Australia considered an application to reopen parenting proceedings concerning two children, V and B. The application was brought by the maternal grandmother, who sought to adduce evidence and file her own application for parenting orders.

The central legal issue before the court was whether the parenting proceedings, in which final orders had presumably been made, should be reopened to allow the maternal grandmother to participate and present her case. This involved considering the principles governing the reopening of final orders in family law matters, particularly in circumstances where a third party, such as a grandparent, seeks to be involved in parenting arrangements.

Murphy J, referencing High Court pronouncements on the admission of fresh evidence on appeal, adopted a statutory approach rather than a common law test. The court acknowledged that while finality in litigation is a relevant consideration, it is not paramount when the best interests of children are at stake. The judge noted that the High Court's emphasis on the remedial nature of provisions allowing for further evidence, aimed at preventing erroneous orders, was analogous to the present situation. Crucially, the court found that the grandmother's evidence, suggesting she was unaware of the earlier proceedings due to miscommunication and not a desire to abandon her rights, presented exceptional circumstances. The judge also highlighted the legislative framework governing parenting cases, particularly Division 12A of the Act, which mandates a focus on the best interests of the child.

Consequently, Murphy J ordered that the parenting proceedings be reopened to permit the maternal grandmother to adduce evidence and file an application. The parties were excused from complying with the Child Responsive Programme due to the exceptional circumstances. The matter was listed for trial before Justice Jordan on 27 March 2009, with provisions made for consent orders to be considered by chambers if an agreement was reached prior to the hearing.

Orders

Orders of the court

IT IS ORDERED THAT

The parenting proceedings with respect to V born … May 2004 and B born … November 2005 be reopened so as to enable the maternal grandmother to adduce evidence and file an application with respect to parenting orders sought by her.

In view of the exceptional circumstances in this case, the parties are excused from complying with the Child Responsive Programme of this Court.

The matter is listed for a 1st day of trial before Justice Jordan at 10.00am on 27 March 2009 in the Brisbane Registry of the Family Court of Australia.

NOTATION:

(a) Each of the relevant parties, are now represented and Mr Grant continues as the Independent Children's Lawyer in these proceedings.

(b) The Independent Children's Lawyer has indicated that there is a prospect that the parties may enter upon intelligent discussions focussed on the children’s best interests, with a view to resolving the matter.

(c) In the event that the parties reach agreement prior to the hearing listed on 27 March 2009, they are at liberty to forward minutes of consent by email to the chambers of Justice Murphy, and unless any of the parties submit otherwise, those orders will be considered in chambers and if appropriate, made by consent, with no requirement for appearance by any of the parties.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

However, in eschewing a common law test for the admission of fresh evidence in favour of the statutory position governed by s 93A(2) of the Act and section 27 of the Federal Court of Australia Act 1976 (Cth), the High Court said:-“[104] Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of discretion…in an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal always factors, although it may of course develop guidelines for weighting those factors and exercising discretion.” Finally, the justices of the High Court said, with particular reference to parenting cases in this court:-“[109] One consideration in construing s 93A(2) is its remedial nature. It’s principle purpose is to give the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary purpose, is to give the Full Court discretion to admit further evidence to buttress the findings already made.” Needless to say, although analogous, the principles applicable to the reception of further evidence on appeal are not necessarily perfectly applicable to the reopening of a parenting case where final orders have been made. In particular, that seems to me to be true in the unusual circumstances of the present case. Given the fact that the reopening of the case is uncontroversial as between the parties, I need only refer to the evidence in broad terms. In simple terms the Grandmother deposes to the fact that, as a result of what might be described as issues of miscommunication, she was unaware of the earlier proceedings, and that her intention and motivation was not such as is indicated in the references earlier given. There is, it seems to me, in any event, a distinction between indicating that one might be “tired of” proceedings or “sick of” conflict associated with, and forming part of, those proceedings on the one hand, and, on the other hand, those feelings manifesting themselves in an intention to take no part in those formal proceedings or to not desire one’s case to be heard and determined. The comments previously referred to by the High Court must also now be added references to the post-Reform Act Legislative Provisions. 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. Parenting orders 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 of the predominance of the best interests of the child.