Trevor and Trevor
[2016] FamCA 756
•7 September 2016
FAMILY COURT OF AUSTRALIA
| TREVOR & TREVOR | [2016] FamCA 756 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Leave to Reopen – Where final judgment as to parenting and property orders reserved – Where mother seeks to reopen her parenting case – Where mother alleges an incident at the father’s place of employment shows the father’s propensity for violence – Where mother alleges the father has left the children unsupervised –Where consideration of applicable principles – Mother’s application for leave to reopen dismissed. |
FAMILY LAW – PARENTING – Interim proceedings – Where mother seeking a suspension of the father’s time with the children – Where mother alleges the father has left the children unsupervised – Where final judgment as to parenting and property orders reserved – Where Independent Children’s Lawyer does not support a suspension of the father’s time with the children – Mother’s application dismissed.
| Australian Securities and Investments Commission v Rich [2006] NSWSC 826 Mallard & Mallard [2011] FamCA 876 Suell & Suell (Re-Opening) [2009] FamCA 55 Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471 |
| APPLICANT: | Ms Trevor |
| RESPONDENT: | Mr Trevor |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Town X Family Law |
| FILE NUMBER: | DUC | 435 | of | 2013 |
| DATE DELIVERED: | 7 September 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 2 September 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gillies |
| SOLICITOR FOR THE APPLICANT: | Kevin Hockey & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Reeves |
| SOLICITOR FOR THE RESPONDENT: | Brendon Dunstan Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Mahony |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Town X Family Law |
Orders
That the mother’s application to reopen be dismissed.
That the mother’s application for suspension of the children’s time with the father be dismissed.
That in the event of any application for costs of the present application the father file and serve submissions within 28 days from this date and the mother file and serve any submissions in response within a further 14 days with judgment thereafter be reserved to chambers.
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 Trevor & Trevor 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 PARRAMATTA |
FILE NUMBER: DUC 435 of 2013
| Ms Trevor |
Applicant
And
| Mr Trevor |
Respondent
REASONS FOR JUDGMENT
The mother, being the respondent in the primary parenting and property proceedings, makes application by way of application in a case filed on 18 July 2016 to reopen the evidence in the trial and for an order suspending the children’s time with the father.
The orders sought by the mother in her application in a case are as follows:
a)That leave be granted to the mother to file further evidence in this matter before the Court for consideration prior to any judgment being delivered;
b)That the mother be granted leave to issue such further subpoenas as required;
c)That the Court grant leave for short notice of any further subpoenas sought by the mother;
d)That the father’s time with the children pursuant to current interim parenting orders be suspended; and
e)That the father pay the mother’s costs.
The mother relied upon her affidavit filed on the 18 July 2016 and the affidavit of Ms U filed 29 August 2016.
The father filed a response to the mother’s application in a case on 9 August 2016 seeking that the mother’s application be dismissed and that the mother pay the father’s costs.
The father relied upon his affidavit filed on 9 August 2016, the affidavit of Mr V filed 9 August 2016 and the affidavit of Ms C filed 9 August 2016.
The primary proceedings
The primary proceedings as to parenting and property were heard over four days being 10 and 11 March 2016 and 9 and 10 June 2016. Judgment was reserved on 9 June 2016 but was delivery of judgment has been delayed by reason this application filed five weeks later.
The background to the proceedings is considered in the interlocutory judgment delivered on 11 December 2014 (Trevor & Trevor [2014] FamCA 1140).
The subject children are P born in 2008, D born in 2011 and J born in 2012 (“the children”).
Relevant principles
It is well settled that reopening of a case prior to delivery of judgment is an exception to rather than the usual course of a trial.
In Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471 at 478, Clarke JA (with whom Mahoney and Meagher JJA agreed) pointed to the relevance, in an application to reopen, of the question whether the interests of justice are better served by allowing or rejecting the application. His Honour observed that:
The principle which would guide the Court in determining whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence is not led in the first place.
In Australian Securities and Investments Commission v Rich [2006] NSWSC 826 Austin J. pointed to matters relevant to an application to reopen including:
a)The nature of the proceeding;
b)Whether the occasion for calling the further evidence ought reasonably to have been foreseen;
c)Considerations of fairness in respect of the defendant's notice of the case they have to meet;
d)The importance of the issues as to which the further evidence is sought to be adduced to the issues in the case;
e)The degree of relevance and probative value of the further evidence;
f)The prejudice to the defendant in terms of delay and the completion of the proceedings and consequential costs;
g)The public interest in the timely conclusion of the litigation; and
h)The explanation offered by the applicant for not having called the evidence-in-chief.
In this Court in Mallard & Mallard [2011] FamCA 876, Fowler J distilled the applicable principles thus at [91] –[92]:
The fundamental principle to be applied in determining whether to grant an application to reopen a hearing after judgment has been reserved is whether the interests of justice are better served by allowing the application or rejecting it: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 per Clarke JA at 476 with whom Mahoney JA and Meagher JA agreed; Gelly and Gelly (No 1) (1992) FLC 92-290 per Treyvaud J at 79, 146-148; Smith v New South Wales Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256 per Brennan Dawson, Toohey and Gaudron JJ at 266-7 and Gaspaldi and Gaspaldi [2008] Fam CAFC 134 (unreported, Family Court of Australia, Bryant CJ, Thackray and Le Poer Trench JJ, 2 October 2007); Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240.
The court has discretion to reopen a hearing and allow fresh evidence where:
- the fresh evidence was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence and
- the fresh evidence is so material that the interests of justice require it and
- if believed, the fresh evidence would most probably affect the result of the trial and
- there would be no prejudice to the other party by reason of its introduction at a late point in time.
In Suell & Suell (Re-Opening) [2009] FamCA 55 Murphy J after examining the implications on the general principles applicable to leave to reopen in the context of a parenting matter conducted under Part 12A of the Act concluded:
27. By reference to those decisions (and, indeed, to other authorities including those specifically referred to earlier in these reasons and in the written submissions just referred to by Mr North SC), I consider that, when account is taken of Division 12A, the factors relevant to the exercise of my discretion in this application include the following:
◦Is the further evidence relevant to issues directly affecting V’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 V 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 V’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].
28.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].
The basis of the mother’s application
The mother application rests on two issues:
a)That on 13 July 2016 the husband was involved in an incident at his place of employment, the Town X Tavern. The incident also involved Mr U and his wife Ms U. Mr U is the former husband of the husband’s current partner Ms F. It appears that there is some animosity between Mr U and the father; and
b)Circumstances on the 22 May 2016 and 2 July 2016 in respect of which the mother asserts that the children were left “unsupervised” by the father at the local park near his home.
The first issue: the X Town Tavern incident
As to the first issue, the mother’s evidence relies upon firstly what she was told as to the incident by Ms U who relevantly alleged that the father “pushed me and punched me in the face, hitting my jaw”. Ms U in her affidavit gives evidence as to some pushing and shoving between the father and her husband Mr U. She says that “I thought that the tussle was over and [Mr U] and I turned to walk away and then I felt immediate pain in my right jaw like I had been struck with something…”
Ms U for her part reported the incident to the Town X police and as yet now some six weeks after the incident no further action has been taken by the police.
Exhibit B comprises documents produced on subpoena by the Town X Tavern. An incident report signed by the manager describes the incident as “verbal argument between [Mr U and [Mr Trevor], progressed to push and shove”.
Fortunately for all concerned the incident was captured on CCTV at the Tavern.
That CCTV footage was viewed in open court.
The father provides a version of the incident in his affidavit sworn on 9 August 2016. His general assertion is that Mr U abused him and struck him with force to the right side of his jaw whilst the father was standing in the Tavern where he works casually. At this time the father asserts he was just inside the door (and not able to be seen on the CCTV footage). The father asserts that a fellow employee, Ms C, then separated the father and Mr U and pushed the father further into the room.
Ms C in her affidavit describes hearing foul language outside the area and observed a male person, presumably Mr U reach in and grab the father and try to pull the father out of the room. She says that she separated them and pushed the father into the room “out of harm’s way”.
Mr V in his affidavit recalls the father standing just inside the doorway and a man with glasses throw a punch towards the father. To his observation the father never left the room or came out of the door, nor did he see “a single punch or anything come” from the father. Mr V says he did not see any female as a part of the incident.
The CCTV footage
The footage clearly shows a verbal exchange between various people. The father is seen to be slightly out of the doorway and then to move inside the doorway out of view. A tall man with glasses is then seen at the doorway in company with a woman who is Ms U. The tall man is then seen to lunge inside the room with a raised elbow and appears to throw a punch or seek to grab at someone inside the room. Ms U grabs the taller man and seeks to pull him away. The tall man is then grabbed by a second male and Ms U who both seek to pull him away from the door. At this time the father is seen to exit the room pushing the two males and the woman away from the door. In doing so he is pushing the second male with one arm near that man’s armpit and pushing the female from behind near the top of her right shoulder. As he pushes it appears that his arm slips off the top of the woman’s coat and his hand and wrist brush past the lower right hand side of her face. The father it appears is wearing a watch on that wrist. The father continues to push them away for a metre or so and then after a short verbal exchange with the second man retreats.
The mother’s contention
The mother contends that the incident tends to show the father’s propensity to violence and thus presents as a risk to the children. The footage does not evidence any such conduct on the part of the father. Indeed he retreats to the room and then appears to be struck or grabbed at. He then seeks to move the protagonists away from his work area.
For reasons not known the incident was reported to the Department of Family and Community Services by someone with an intimate knowledge of these family law proceedings.
The second issue: failure to supervise
On 22 May 2016 the child P aged eight allegedly reported to the mother that the father had left him at the skate park while the father was on the play equipment with the younger children. The mother asserts that the skate park and the play equipment are some 200 metres apart with an obstructed view of each other.
For reasons not explained the incident was reported to the Department of Family and Community Services alleging that P had been unsupervised for 10 minutes (Exh E). The Department dismissed any concerns.
The father in response says that on 22 May 2016 P was supervised by his partner while he took the younger children to the toilet and for a swing in the adjoining park area.
The mother promptly raised the issue in correspondence from her solicitors including a reminder that the father was by order to personally supervise the children during their time with him.
On 2 July 2016 the children allegedly reported to the mother that the father had left them “at the park alone”. P said “I could kind of hear him (the father), it’s too far.” The next day P allegedly reported to the mother that he and D had walked to the park alone and the father later came down with J.
As to this alleged incident the father denies leaving the children unsupervised.
The mother, for reasons not explained, reported the matter to the Department of Family and Community Services (Exh E).
On 7 July 2016 the mother allegedly was informed by P that all children had been at the park alone but with other boys and their baby sitter.
The mother again, for reasons not explained, reported the matter to the Department of Family and Community Services on 10 July 2016 alleging that the child was unsupervised for more than 30 minutes and had to walk home 300 metres. The report confirmed that the child was playing with boys from his school.
As to 7 July 2016 the father says he returned from the park with the younger children. P was allowed to remain and play with his schoolmates but was told to come home after 15 minutes. The father could see P from the fence of his house.
Leave to reopen
The various considerations in the context of parenting proceedings have been referred to above.
The incident at the Town X Tavern is not indicative of any issue that can impact on the best interests of the subject children. The evidence is indicative of the father being the subject of aggressive behaviour and being assaulted and responding appropriately.
The further evidence sought to be agitated by the mother as to “supervision” is reflective of the ongoing anxious attachment of the mother to the children that were the subject of evidence at the trial. Any circumstance that arouses anxiety in her mind it appears is an issue for dispute and complaint by her. The father has for his part responded to the mother’s allegations.
Town X Interrelate Centre
Concerningly the mother in her engagements detailed below with the Town X Interrelate Centre that facilitates supervised changeovers for the some of children’s time with the father has made no reference to the apparently significant issue in her mind of failure to supervise.
On 12 July 2016, five days after the last “failure to supervise” incident, the mother confirmed to Interrelate that visits would continue “as usual”.
Then on 15 July 2016, two days after the Town X Tavern incident the mother uses that incident to cancel the children’s time with the father notwithstanding court orders. On 17 July 2016 the mother informed Interrelate that “all contact between (the father) and the children have been ceased” and that she would no longer require the services of Interrelate.
On 4 August 2016 the mother enquired of Interrelate as to the recommencement of Interrelate supervised visits as “she wanted to facilitate contact between the kids and Dad before going back to court”. The mother acknowledged that the children were confused as to spending no time with their father and that she was “running out of excuses as to why they are not seeing their father”.
Not once did the mother refer to any issue as to alleged failure to supervise in the context of her engagements with Interrelate.
These discrete issues as to supervision will not assist the Court in considering the best interests of the children.
For the reasons discussed above the further evidence, if allowed, is not likely to affect, in a substantial way, the ultimate finding or findings that would otherwise have been available on the evidence at the hearing.
The further evidence in part as to the supervision issue could have, with due diligence and preparation, been discovered so as to be led at the trial. Otherwise the evidence sought to be adduced arose after judgment was reserved on 9 June 2016.
The mother brought her application promptly after the Town X Tavern incident and thus there was no undue delay on her part.
The father would suffer prejudice in reopening the trial as to the further evidence sought to be adduced. There will be a significant delay in the resolution of these long running proceedings with the attendant additional legal costs and the significant cost of re-engaging the single expert. A final hearing would be a further six months away.
The children would be required to remain in arrangements for time with their father that the Independent Children’s Lawyer contends are not in their best interests and not supported by the Independent Children’s Lawyer’s contentions at trial.
It is well recognised that it is in the interest of children to have parenting matters resolved with expedition and thus the discretion to admit further evidence must be exercised with caution.
The matters raised by the mother are tangential at best. They are such that it is not appropriate in all the circumstances to grant leave to her to reopen.
The interests of justice are best served by rejecting the mother’s application.
Her application in that regard will be dismissed.
The application for suspension of time
The background circumstances have been discussed in detail above.
The children have been having time with the father now under the current orders for more than a year. The mother makes isolated complaints in circumstances where they have been with the father 50-60 times.
The Independent Children’s Lawyer opposes the mother’s application.
The circumstances discussed above reveal no unacceptable risk to the children in their time with the father. He needs to be cognisant of his need by order to supervise the children. His counsel acknowledged same during submissions.
The relevant law and applicable considerations were set out in the previous interim judgment referred to above. They need not be repeated here. Regard has been had to those considerations. None are indicative of the father’s time being suspended by reason of the facts asserted by the mother in this application.
The mother’s application for suspension of time will be dismissed.
The parties were informed that in the event that the mother’s application to reopen was unsuccessful then final judgment and orders would follow shortly.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 7 September 2016.
Associate:
Date: 7 September 2016
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