Tillson and Keller - [2020] FamCA 806

FAMILY COURT OF AUSTRALIA

TILLSON & KELLER

[2020] FamCA 806

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open evidence after the conclusion of trial – Where the mother seeks to re-open evidence to adduce affidavit evidence relating to the father’s mental health – Where the father has filed affidavit evidence in response – Where the evidence relates to events that have occurred subsequent to the conclusion of the trial – Where there has been no undue delay – Where the evidence is about important issues that are very relevant to the best interests determination – Where leave is granted to admit affidavits deposed to by the mother, the father, the paternal grandmother and the paternal aunt and the matter will be listed for cross-examination of those persons.

Family Law Act 1975 (Cth)

Suell & Suell (Re-Opening) [2009] FamCA 55

APPLICANT:

Mr Tillson

RESPONDENT:

Ms Keller

INDEPENDENT CHILDREN’S LAWYER:

Paula Fletcher

FILE NUMBER:

LEC

169

2017

DATE DELIVERED:

24 September 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

17 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McDiarmid

SOLICITOR FOR THE APPLICANT:

Ferguson Legal

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Burgess Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fletcher
Universal Law

Orders

That the trial of the competing parenting applications in this matter concluded on 13 February 2020 be re-opened and the following affidavits be admitted into evidence in the proceedings:
(i)Affidavit of the mother filed 1 September 2020;
(ii)Affidavit of the father filed 16 September 2020;
(iii)Affidavit of the paternal grandmother filed 16 September 2020;
(iv)Affidavit of the paternal aunt filed 16 September 2020.
That the re-opened trial be listed to re-commence at 10.00 am on Thursday, 8 October 2020 with any of the above named deponents who are required for cross-examination to be cross-examined on that day, before further submissions are heard.

AND UPON the further Undertakings given to the Court by the paternal grandparents on 18 September 2020

IT IS ORDERED UNTIL FURTHER ORDER

That the child, X born … 2016, shall spend time with the father from 8:00 am on Thursday to 5:00 pm on Friday and from 8:00 am until 5:00 pm on Saturday every week.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tillson & Keller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: LEC 169 of 2017

Mr Tillson

Applicant

And

Ms Keller

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

In…

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 Tillson and Keller

Details

AGLC: Tillson and Keller [2020] FamCA 806
Case: [2020] FamCA 806
Decision Date: 24 September 2020

CaseChat Overview and Summary

In the matter of *Tillson and Keller*, Forrest J of the Federal Circuit Court of Australia considered competing parenting applications concerning the child X. The proceedings had previously concluded on 13 February 2020, but the court was asked to re-open the trial to admit further evidence.

The central legal issue before the court was whether to permit the re-opening of the trial to admit four specific affidavits, filed after the initial conclusion of proceedings, and to then re-commence the trial for further submissions and cross-examination.

Forrest J reasoned that the interests of the child, X, necessitated the admission of the new evidence. The court applied the principle that in parenting matters, the paramount consideration is the best interests of the child. The judge found that the affidavits contained relevant information that ought to be considered in determining the parenting arrangements. Consequently, the court ordered that the trial be re-opened and the specified affidavits admitted into evidence. The re-opened trial was scheduled to recommence on 8 October 2020, with provisions for cross-examination of the deponents.

Following the re-opened trial and upon undertakings given by the paternal grandparents, the court made interim orders regarding the child's time with the father, stipulating specific days and times for the child to spend with him each week until further order.

Orders

Orders of the court

That the trial of the competing parenting applications in this matter concluded on 13 February 2020 be re-opened and the following affidavits be admitted into evidence in the proceedings:

(i) Affidavit of the mother filed 1 September 2020;

(ii) Affidavit of the father filed 16 September 2020;

(iii) Affidavit of the paternal grandmother filed 16 September 2020;

(iv) Affidavit of the paternal aunt filed 16 September 2020.

That the re-opened trial be listed to re-commence at 10.00 am on Thursday, 8 October 2020 with any of the above named deponents who are required for cross-examination to be cross-examined on that day, before further submissions are heard.

AND UPON the further Undertakings given to the Court by the paternal grandparents on 18 September 2020

IT IS ORDERED UNTIL FURTHER ORDER

That the child, X born … 2016, shall spend time with the father from 8:00 am on Thursday to 5:00 pm on Friday and from 8:00 am until 5:00 pm on Saturday every week.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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