Suess & Jackson (Re-opening)
[2009] FamCA 164
•12 March 2009
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 | of | 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 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.
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. At the conclusion of the then hearing, the mother, who was acting on her own behalf, said that she wished to participate no further in the proceedings.
At that time, the mother indicated that her mother was also “fed up” and “sick of it”. At that time, the maternal grandmother was represented by a solicitor and had previously been so represented throughout the course of the proceedings.
I noted in my earlier reasons for judgment that:-
“21.Ms Martin, who appears on [the grandmother’s] behalf today, informs the court that there have been many attempts to contact her client over a period of some weeks. On the last occasion, which occurred in late October, there was a brief telephone conversation between Ms Martin and the maternal grandmother at which time the grandmother indicated that she would call back, but never did.
22.Although Ms Martin was careful to point out that she did not have instructions to this effect, she did indicate that in terms of her overriding duty to the best interests of the children that the indications from her client were that the position of the maternal grandmother was the same, in effect, as the mother’s position.
23.The comments by the mother today from the bar table would appear to confirm that observation”.
The grandmother seeks to re-open the proceedings despite the fact that final orders were pronounced.
The formal orders made on 1 December indicated, by way of notation, that “Consequent to completion of the hearing in this matter, at which the applicant grandmother was not present, and the making of orders thereat, the applicant grandmother notified the Independent Children’s Lawyer who then notified the Associate to Justice Murphy that she wished to maintain her application”.
I subsequently made orders in chambers providing for the hearing of the instant application. At the hearing before me on 6 February 2009 the grandmother had filed and served the affidavit material contemplated by those orders for directions.
The father was also represented. His solicitor indicated that he had no objection to the proceedings being re-opened so as to facilitate the hearing of the grandmother’s application. Despite the fact that, relevantly, the father agreed to that course of action, the re-opening of a case subsequent to the making of final orders nevertheless required a discretion to be exercised by the Court.
The matter then was listed and heard urgently given the circumstances just described. On 6 February I made orders indicating that I would exercise my discretion to re-open the proceedings so as to permit the grandmother’s application to be heard with the further directions to give effect to that occurring. I indicated that I would deliver my reasons at a later time. These are those reasons.
In Smith v Bar Association (No.2) (1992) 176 CLR 256 at 267, it was held – Brennan, Dawson, Toohey, Gaudron JJ that:-
“…different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which a discretion to re-open should be exercised…”.
The latter principles, insofar as they relate to appeals before the Full Court of this Court, were established by the later decision of the High Court in CDJ v VAJ (1998) 23 FamLR 755. There, McHugh, Gummow, Callinan JJ said at 780:-
“[117] The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of the children will so often be an agonising one, as indeed it is in the present case where both parties are anxious for their children’s welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like, may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children; sometimes either parent would be an excellent choice and often neither would be ideal.
[118] The need for caution is particularly great when an order for a change in the residence of children has been made and the Appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, sometime will be taken by children to adapt to their different situations. So to the public and private interests in the finality of the litigation must be given some weight even in cases of this kind. Important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of the long and repetitive proceedings.”
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.
In CDJ v VAJ the High Court held (again it is noted, in the context of an application to admit further evidence on an appeal) that such an order was not a “parenting order” in terms of s 64B of the Act. 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:-
“[87]…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.”
It seems to me that, similar to proceedings to introduce new evidence in reopening 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”.
Of course, an argument is that there are no “child related proceedings” because those proceedings concluded with the orders made by me on 1 December. However, parenting orders are never “final” in the sense in which that expression is usually understood in the law. Material changes in circumstances can bring about an application to vary, including discharging, earlier final orders.
It seems to me that such an application would be a decision about the conduct of “child related proceedings” within the meaning of s 69ZN(1)(b). Further in my view, an application to reopen falls into a similar category. I find that such a decision is about the conduct of “child related proceedings”, in which case the principles outlined in s 69ZN apply to these proceedings.
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 of the proceedings may have on the child in determining the conduct of the proceedings”. Another example is provided in s 69ZN(7) which provide 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 … 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 s 69ZN(1). The abolition of many of the rules of evidence (s 69ZT) can be seen as a stark example of that.
However, it is to be noted that s 69ZR refers to specific powers “before the making of final orders” which tends to suggest that Division 12A and the matters just referred to might not apply to circumstances where there is an application for reopening subsequent to the making of final orders.
However, it is plain that the court retains a discretion to reopen proceedings, and I consider that I should take account, as a highly important matter in the exercise of that discretion, not only the best interests of the child, as generally expressed, but that I should also take account, in broad general terms, the manifest legislative intention as to the conduct and nature of proceedings for parenting orders.
In this particular case, the earlier reasons given by me referred to sad and poignant evidence provided by the family consultant, Mr F, in his family report. I specifically quoted paragraph 86 of that report:-
“From the adult’s comments it is reasonable to conclude, in my view, that the children, and particularly [V], are now unstable, agitated and hostile in both homes.”
Suffice to say that, in the complex circumstances in which the children find themselves, it seems to me crucial to their best interests, that the court has the opportunity to hear the parenting proposals of all persons significantly connected to their care, welfare and development and in my view the Applicant grandmother is such a person.
Moreover, permitting such an application allows the court to consider, and consider properly, a variety of proposals from which it can, as the law requires, attempt to fashion orders which best meet the best interests of these particular children.
For those reasons, in the unusual circumstances of this case, I propose to exercise my discretion to reopen the proceedings. I make the orders earlier indicated.
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 12 March 2009