Tillson and Keller
[2020] FamCA 806
•24 September 2020
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 | of | 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 February this year, over four days, I presided over the trial in this contested parenting orders case. The parents of X, who is nearly four years old, are in dispute about her parenting arrangements. In particular, the mother wants to be permitted to take her to live with her in the town she grew up in New Zealand. The father does not want that to be permitted and wants X and the mother to stay on the far north coast of New South Wales where they all live now.
I reserved my judgment and as I was close to finishing writing it, a few weeks ago, the mother applied to the Court to re-open the trial so that more evidence can be admitted. I listed that application for hearing before me on Thursday, 17 September. The father filed affidavit material in response to the mother’s affidavit but opposed the re-opening of the trial.
I heard the matter by online video conferencing platform, Microsoft Teams. The mother was represented by the same barrister who appeared for her at the trial. The father was also represented by the same barrister who appeared for him at the trial. The Independent Children’s Lawyer (“the ICL”) also appeared, this time without counsel who represented her at the trial.
What is the Re-Opening Application based on?
At the trial of the matter, the father’s mental health was one of the issues about which there was a substantial amount of evidence adduced. Most particularly, that evidence established that the father had been admitted to hospital in May 2019, and remained as an inpatient pursuant to the Mental Health Act 2007 (NSW), after an incident in which he had expressed suicidal intent, about one week after another incident in which he had experienced a not too dissimilar intent.
Evidence in the form of the hospital records showed that he had been diagnosed with Depression with psychotic features. However, a Consultant Psychiatrist in Brisbane, Dr F, was later engaged by the ICL to see, assess and report on the parents. His written report was also in evidence and he was cross-examined at the trial. He expressed the opinion that he did not consider the father to have an “ongoing major mental illness”. He acknowledged that the father had developed a Major Mood Disorder but did not consider that he was “psychotic”. He was “somewhat sceptical” of the Hospital’s diagnosis of a Major Depressive Disorder with psychotic features and said that when he saw the father later in 2019 that the father was not presenting with any ongoing features of a Major Depressive Disorder but rather with some “ongoing anxiety around the court process”. Dr F also said that there was a suggestion of “cluster B personality traits” but that despite having said that he was not prepared to say that it was his view that the father presents “with a personality disorder per se in the cluster B range”.
Dr F said that if the father was continuing to engage appropriately with mental health treatment and was not displaying features of a Major Depressive Disorder (of a severe nature) or psychotic symptoms, and was not engaging in excessive use of alcohol whilst the child is in his care, or engaging in suicidal or parasuicidal behaviours, and protecting the child from any negative view/anxieties he may hold towards the mother, so as to protect the child from emotional harm, then, he, (Dr F) would have no concerns the child would be at risk of significant harm in the care of the father, on either a supervised or unsupervised basis.
The evidence surrounding the father’s mental health also caused the mother to raise another issue at trial. That was the extent to which she could rely on the father and his immediate family (his parents who he shared a house with, and his sister) to keep her fully and frankly informed of changes, particularly deteriorations, in his mental health. The evidence at the trial established that the mother was not informed of the father’s mental health crisis of late May 2019 until mid-July that year, after it became clear that she would learn of it independently of the father through records that were going to be subpoenaed by the ICL or her own solicitors. The husband’s parents then each gave undertakings to the Court at the trial that they would “inform [the mother] immediately I observe any significant deterioration in the mental health of [the father]”.
On 1 September this year, the mother filed her application to re-open the trial. Her supporting affidavit is nine pages long but with many pages of attached exhibits. In that affidavit, she tells the Court that since the trial more issues have arisen in relation to the father’s mental health and about the “honesty of the Father/the paternal family in relation to the Father’s mental health”. She then deposes, over many paragraphs, to factual events that happened since the trial that relate to the father’s mental health. Most significantly, the mother deposes to receiving a phone call from the father’s sister on Friday afternoon, 10 July, this year, during time that X was in the care of the father. She says that the father’s sister said that the paternal grandparents wanted her to call the mother and tell the mother that she needed to go and pick up X “as Mr Tillson is having a breakdown”. The mother says that she went straight to their house and called the paternal grandmother from outside. There was no answer and the father’s sister rang the mother again and said that her parents thought it best if they dropped X to the mother’s place. The mother told her then that she was already at their house.
The mother says that the father then came out of the garage at that house, holding X, accompanied by both of his parents. She says that X was crying hard and her face was red from crying. She says that whilst he was still holding X the father commenced yelling at her (the mother). She says he was yelling words to the effect of:
Do you see what you have done to me? Do you see what you and your father are doing to me, do you see! Manipulating the system, making false allegations of family violence. You were caught out in the stand making false allegations of family violence! Are you going to go to the police station now and make more allegations of family violence?
The mother says that the father was behaving in a “fiercely angry and uncontrolled manner, whilst X was in his arms and still crying”.
The mother says that the paternal grandfather told the father to stop and the paternal grandmother told the mother to just take X and go. The mother says when X came into her arms she clung tightly to the mother and continued to cry and they immediately left. The mother says that the father’s sister called her again that afternoon and that during that conversation she told the mother that her brother has been “so sad and anxious for a long time” and that he had “had a medication change 2 weeks ago”. The mother says that the father’s sister told her that “we all think its best if he goes to hospital and he can get his medications sorted out, and be somewhere where he can be monitored”. The mother says the sister told her that the father would stay home that night and that they would make a decision about what happens the next day but that the family felt it best if X not see the father whilst he got his medications sorted out.
The mother says that X told her that night that the paternal grandparents and her father were “big arguing about me” and that the grandparents wanted her to come home to her mother and the father did not want her to go.
The mother says that the next day she had a text conversation with the paternal grandmother and later asked her if she could let her (the mother) know if the father is in hospital or not. The mother says that the paternal grandmother then dropped X’s bag off to the mother and the mother again asked her to let her know if the father goes to hospital. She says the paternal grandmother said “I will”.
The mother says that she then received a text message from the father on the morning of Tuesday 14 July. It said:
Hi Ms Keller just letting you know I’m fine and all is well. I’m not going to the hospital but I am working with my doctor regarding medication. I feel that I should work on this first with my doctor and that unfortunately I won’t be able to spend time with X this week. I’ll be in touch. Regards
The mother says that on Tuesday 21 July she received the next text from the father. It said:
… I have worked through my medication with doctor and all is good. I’m fine and well and will be able to have X and I time together from this Thursday as normal. Thanks for your help and understanding last week…
The mother had her solicitors write letters to the father’s solicitors letting them know that she did not want the visits to resume until she had received a report from the father’s treating psychiatrist dealing with his health and treatment. She then received a very brief report from a psychiatrist who said he would answer the request for information in detail the following week but that he did not have any concerns in regards to the father looking after X at this stage.
On 5 August, the father’s solicitors wrote to the mother’s solicitors. In that letter they referred to the father’s “attendance at D Medical Centre for the educational courses available therein” and there was further discussion about obtaining the report the mother had requested. The mother says that she understood the reference to the D Medical Centre to mean that the father was going to attend educational courses at the D Medical Centre. Pending receipt of the report, the mother continued to insist that the child’s time with the father be supervised by one of the paternal grandparents and that was happening.
To be clear, the D Medical Centre is known to the Court as a private medical facility specialising in the management and treatment of mental health disorders.
The mother says that again on Saturday 15 August she received a text message from the paternal grandmother advising her that the father “is a bit sad at the moment” and that they “are dropping X off early if that’s ok”. X was returned early to the mother by the paternal grandparents without the father. The mother says she asked “what is going on?” to which the paternal grandmother replied “he’s just a bit sad at the moment, Ms Keller. X shouldn’t see him when he is like this”. The mother says that she said “I need some honesty from you guys and I’m not happy with ‘just sad’”. She says the paternal grandmother then responded “Ms Keller, aren’t we waiting on reports from qualified people? Please don’t think we are not being honest. We have been honest all along”.
The mother says that night that X again told her that there were arguments between the paternal grandparents and the father when she was at her father’s place.
The mother says that she then received a text on Sunday 16 August from the paternal grandmother who said:
[The father] was checked out and assessed by doctors yesterday was ok so was discharged yesterday afternoon, thought I would keep you informed.
The mother says she asked what was the father’s current diagnosis and was told it was “good, still anxiety”.
The mother says that on Monday 17 August she received an email from the paternal grandmother which, apparently, the paternal grandmother meant to send to the mother on Saturday but had accidentally sent it to herself, discovering later and sending it through on the Monday. It said:
[The father] has voluntarily admitted himself to C Hospital.
The mother decided that week that she did not want to send X to spend time with the father until she had seen the requested report from the psychiatrist who was treating him. That report came through to the mother on 28 August. That revealed to the mother for the first time that the father had been an inpatient at the D Medical Centre in F City from 14 July through to 22 July 2020. 14 July was the day on which the father had texted the mother and told her he was “not going to the hospital” but would not see X that week.
Amongst other things in her affidavit, the mother also went on to say that on 27 August the father was having a video call with X when she (the mother) was in the same room as X and heard the father say to his own mother (who was with him) words to the effect of “It’s all case building and fabrication” and “I am sick of this manipulation”. The mother wrote to him afterwards and asked him to “refrain from letting X hear” his personal thoughts about the mother. In his response, the father conceded that he had said something like that to his mother “very quietly” whilst X “was being playful and was hiding under the doona”. He positively asserted that “X in no way could have heard this statement.” The father concluded the email by saying “It’s an assumption that this statement was about you”.
The father responded to the mother’s evidence with an affidavit of his own. He also caused an affidavit of his mother and one by his sister to be filed. They each give evidence that effectively confirms the events outlined by the mother but which give slightly different versions of those events and of the conversations deposed to by the mother. In his affidavit, the father deposes to his reasons for attending at the D Medical Centre, which he accepts he voluntarily admitted himself to from 14 July, staying until 22 July, and his reasons for sending the text message that he sent to the mother that same day, 14 July. The father also deposes to a lot of evidence about his ongoing treatment and medication as well as to the incident of 15 August 2020 that saw him attend at the C Hospital to deal with another episode of major anxiety that he experienced.
At the conclusion of the mother’s affidavit, she says:
I seek leave to re-open the proceedings in order for there to be further consideration of the following matters:
(a)The diagnosis in relation to the Father’s mental health, given the above matters;
(b)The extent to which the diagnosis and the Father’s ongoing mental health difficulties would impact on final parenting orders;
(c)The extent to which the lack of honesty on the part of the Father and the paternal family in relation to the Father’s mental health difficulties, might impact on final parenting orders; and
(d)The impact of the above stressors on my own mental health, specifically my anxiety.
The Principles to be Applied in Determining this Re-Opening Application
Counsel for the father opposing the re-opening application referred me to the relevant authorities in which the principles applicable to re-opening applications have been established and discussed. In particular, counsel referred me to the first instance decision of Murphy J in Suell & Suell (Re-Opening) [2009] FamCA 55 in which his Honour referred to and discussed those principles. Particularly, his Honour discussed the principles as they apply to applications to re-open parenting proceedings in this Court, having regard to Div 12A of the Family Law Act 1975 (Cth) and its important place within Pt VII of the Act. Having discussed the line of authority, his Honour specifically said at [27]–[28]:
…the factors relevant to the exercise of my discretion in this application include the following:
·Is the further evidence relevant to issues directly affecting [the child’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 [the child] 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 [the child’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].
I respectfully consider his Honour’s consideration of the principles to be appropriate and adopt those same factors that his Honour set out.
My Determination
I am quite satisfied that the evidence of the mother and the evidence of the father, his mother and his sister filed in response is relevant to the issues that the mother identified had arisen at the trial. That evidence and evidence given by each of those persons under cross-examination could affect the ultimate findings that would otherwise have been available on the evidence as it stood at the end of the trial. At this point in time, whether that effect is likely to be substantial might very well depend on the outcome of the cross-examination that each party’s counsel informed the Court they would want to conduct if leave to re-open is granted and the affidavit evidence admitted. Relevantly, I am prepared to say it could be substantial.
The evidence is not evidence that could have been discovered and led at the trial as it is evidence of events that have happened subsequent to the trial. There was no undue delay in the mother applying to the Court to re-open.
As the father already responded to the mother’s evidence in detail I do not consider that there was any prejudice caused to him in respect of the question of responding to that evidence.
The only detriment that X is likely to suffer if the evidence is admitted and the trial re-opened is the slightly longer period of time that she and her parents will have to wait for a final judgment to be delivered. As I have assured the parents, I am conscious of the need to finalise this matter as soon as possible and will ensure that happens.
I am satisfied, after considering all of these things, that the interests of justice in this case are best served by allowing the re-opening of the trial and admitting the four affidavits of the mother, the father, the paternal grandmother and the paternal aunt into evidence in the trial. I consider the evidence is about important issues that are very relevant to the ‘best interests’ determination that has to be made in this case for X.
After hearing submissions from counsel for the father in opposition to the suggestion that Dr F be re-engaged to consider this evidence and to see each of the parents again so as to report again to the Court, I have to say I was persuaded that there is no need to do that in this case, particularly given the fact that it might seriously delay the finalisation of the matter by several more months. As counsel pointed out in her submissions, what has apparently happened with the father’s mental health in this case is not something that was not considered as foreseeable by Dr F who in his assessment and final expression of opinions actually dealt with the possibility of the father having further episodes of acute anxiety. I do not now consider that there is a need to engage Dr F that outweighs the need to finalise this matter as soon as possible. Furthermore, after hearing from counsel for the father on this issue, I did not understand counsel for the mother to continue to press the notion of further engaging with Dr F at all, in any event. I consider that he was, on behalf of the mother, content to limit any re-opening to the admission of the four affidavits now filed and to cross-examination on those. Similarly, the ICL did not submit that further engagement with Dr F was necessary if the re-opening is limited to the admission of the four affidavits and cross-examination on those affidavits. Accordingly, that is what I have decided to do.
At the hearing of this re-opening application I canvassed the availability of counsel for the parties in the event that I determined to re-open and list the matter for one more day of hearing. Each of the barristers is available for that purpose on 8 October 2020 and that is when I will list if for further hearing for one more day.
Finally, counsel for the father raised with the Court the issue of the mother’s unilateral determination to again limit the child’s time with the father to a few hours per day for three days per week and asked for an Order from the Court returning matters to the way they were prior to 10 July this year – that is, from 8:00 am Thursdays to 5:00 pm Fridays and from 8:00 am until 5:00 pm Saturdays, every week. I indicated that I would do that if the paternal grandparents agreed to give an undertaking like the one that they gave the mother last year after the father was first hospitalised in late May to effectively keep an eye on X and their son throughout the time that X is with him and for one of them to stay overnight in the granny flat with the father and X on the nights that she sleeps there. I considered this appropriate in all of the circumstances, accepting that the mother had some reason to be concerned for her daughter now not too dissimilar to that which she had last year and also accepting that the paternal grandparents are suitably protective of their granddaughter and their son. Counsel for the mother told the Court that he was instructed that that would be satisfactory to his client.
Undertakings came through to the Court from the paternal grandparents after the hearing. They were to the following effect:
1.I agree that either myself or my spouse will monitor and regularly check in on our son whilst he is spending time with the child, X.
2.I agree that either myself or my spouse will stay overnight with our son whilst the child, X, has overnight contact with him.
3.I acknowledge that the undertaking I gave to the Court on 13 February 2020 continues.
I accept those undertakings and will make the Order sought pending final judgment.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 September 2020.
Associate:
Date: 24 September 2020
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