Zau and Uong (No. 2)
[2015] FamCA 56
•4 February 2015
FAMILY COURT OF AUSTRALIA
| ZAU & UONG (NO. 2) | [2015] FamCA 56 |
| FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – Review of a registrar’s decision – where the mother was refused leave to file an application to re-open her case – where judgment in the final parenting proceedings is reserved – whether it is in the interests of justice to re-open the case – best interests – mother’s application to re-open dismissed. |
Family Law Act 1975 (Cth)
| CDJ v VAJ (1998) 23 Fam LR 755 Reid v Brett (2005) VSC 18 |
Smith v Bar Association (No. 2) (1992) 176 CLR 256
| Suess & Jackson (2009) FamCA 164 |
| APPLICANT: | Ms Zau |
| RESPONDENT: | Mr Uong |
| INDEPENDENT CHILDREN’S LAWYER: | Cathleen Corridon & Associates |
| FILE NUMBER: | MLC | 3931 | of | 2012 |
| DATE DELIVERED: | 4 February 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 4 February 2015 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Clark |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Cathleen Corridon & Associates |
Orders
IT IS ORDERED THAT
Leave be granted to the mother to file the application in a case dated 13 January 2015, the affidavit in support of that application sworn or affirmed 13 January 2104 and her affidavit sworn or affirmed 2 February 2015.
The mother’s application in a case filed 27 January 2015 and her application in a case dated 13 January 2015 filed pursuant to paragraph 1 of these orders be dismissed and removed from the list of cases awaiting hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zau & Uong (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3931 of 2012
| Ms Zau |
Applicant
And
| Mr Uong |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
This matter was listed for final hearing before me commencing 24 November 2014.
The proceedings related to the child W (“the child”) who is now 17 years of age and has just commenced his VCE year at E School. The child was described by the family consultant Ms K as “a mature and intelligent young man” who “strongly advocated that he did not want the court to make orders requiring him to spend time with the mother.” On 25 November 2014, having heard the evidence and the submissions made by both the father, the mother and the Independent Children’s Lawyer, I reserved judgment to a date to be fixed.
On 27 January 2015 the mother, who was the applicant, filed an application in a case seeking a review of the registrar’s decision rejecting her application dated 13 January 2015 for filing. I will refer for convenience to that as “the application for review.” The mother annexed to her affidavit in support of the review application the application in a case dated 13 January 2015, which had been rejected, and the affidavit in support of that application sworn or affirmed on 13 January 2015. I will refer to that as “the substantive application.”
In the substantive application the mother sought the following orders:
1.Seeking a order to search the respondent and [the child’s] International Movement Records.
2.Seeking a order the respondent father communication with the applicant mother for [the child’s] long [term] care. the applicant mother spend time with the child at family home during this school holiday.
3.Seeking a order the applicant mother living with the child at family home when the respondent father is in overseas.
4.Seeking a order for inspect the file …, … .
5.Seeking a order declare the period or periods of the de facto relationship for the purpose of paragraph 90SB(a).
6.Seeking a order [declare] when the de facto relationship ended.
The review of the hearing of the registrar’s decision before me is a hearing de novo and as the matter is now listed for hearing before me I propose to allow the application for review and make orders granting the mother leave to file her application and the affidavit in support of that application and deal with the substantive issues in that application.
This does not mean that I am in any way critical of the registrar’s decision to reject the filing of the document rather that I hope that in dealing with the substantive issues to bring these proceedings to a conclusion. The father did not appear, however, he forwarded an email to the Court advising that he was aware of the proceedings, that although he opposed the orders sought by the mother that he was not able to attend and asked to be excused. He also advised that he was happy for the matter to be dealt with in his absence and that, if it was necessary for him to appear, he requested an adjournment of six weeks.
At the commencement of the hearing, the mother sought leave to file a further affidavit. It was submitted by the Independent Children’s Lawyer that the matters deposed to by the mother in that affidavit were generally matters previously before the Court and, insofar as the mother purported to adduce new evidence, it was not evidence material to the ultimate determination of the parenting proceedings. She also submitted that, in those circumstances, the father would not be prejudiced by the mother being granted leave to file that affidavit. I am satisfied that it is not necessary for the father to appear nor is he likely to be prejudiced by the material contained in that affidavit.
The mother also sought to rely upon two medical reports, one of which was annexed to her affidavit sworn or affirmed on 2 February 2015, and the report of Ms T which I granted her leave to tender.
Although I propose to grant the mother leave to file her further affidavit I do not, however, propose to grant her leave to file the application in a case annexed to that affidavit in which she seeks orders for an arbitration, family counselling and a family report, that the child be declared a child of the de facto relationship and to inspect files numbers … and … and, finally, an order that she spend time with the child on 22 February 2015 and from 6 to 9 March 2015 before the final orders are made. These matters are matters that were either the subject of the final hearing or already raised by the mother in the substantive application. It is on that basis that I do not propose to grant the mother leave to file this application.
Legal Principles
Whilst not framed as such by the mother, her application appears to be an application to re-open her case and to adduce further evidence.
The principles governing the re-opening of a case and the admission of further evidence have been considered by the courts on many occasions. In Reid v Brett (2005) VSC 18, Habersberger J has summarised the relevant criteria governing the exercise of the court’s discretion in circumstances when the hearing had been concluded but judgment had not been delivered, circumstances not dissimilar to this case, as follows:
(a) the further evidence is so material that the interests of justice require its admission;
(b) the further evidence, if accepted, would most probably affect the result of the case;
(c) the further evidence could not by reasonable diligence have been discovered earlier; and
(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.
In Smith v Bar Association (No. 2) (1992) 176 CLR 256 it was held by Brennan, Dawson, Toohey and 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 the discretion to reopen should be exercised.
Those principles, insofar as they relate to appeals from decisions of this Court and, in particular, parenting cases, are clearly articulated in CDJ v VAJ (1998) 23 Fam LR 755 (“CDJ v VAJ”) where McHugh, Gummow and Callinan JJ said at [104] as follows:
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 the discretion. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion.
Although the High Court in CDJ v VAJ held that an application to admit further evidence was not a “parenting order” and hence the requirement that the Court consider as paramount the best interests of the child or children in question did not apply, it did go on to say that the Full Court in that case had been right in concluding that the best interests of the child is relevant to the question of whether further evidence should be admitted.
Notwithstanding that an application to reopen the case and to adduce further evidence is not a child-related proceeding as defined in s 69ZM of the Family Law Act1975 (Cth) (“the Act”), not being a proceeding under Part VII of the Act, it is also the case, as pointed out by Murphy J in Suess & Jackson (2009) FamCA 164 (“Suess & Jackson”), that s 69ZN(1)(b) makes it clear that the Court must give effect to the principles in that section if it is a decision about “the conduct of child-related proceedings”. The principles in s 69ZN that a court is required to apply include that the Court must consider the needs of the child concerned and the impact that the conduct of the proceedings may have on that child in determining the conduct of the proceedings (s 69ZN(3)) and that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible (s 69ZN(7)).
It is also the case, as noted by Murphy J in Suess & Jackson, that s 69ZR refers to the Court having the power at any time after the commencement of proceedings and before making final orders to make a finding of fact in relation to the proceedings, to determine a matter arising out of the proceedings, and make an order in relation to an issue arising out of the proceedings. This lends weight to the proposition that the Court should adopt a more liberal approach to the reopening of a case in parenting proceedings.
Discussion
The proceedings the mother in this case seeks to reopen are parenting proceedings. However, insofar as she now seeks to adduce further evidence, the matters to which that evidence relates includes evidence she says supports her assertion that she and the father were in a de facto relationship between 1991 and December 2011, matters which were the subject of proceedings before Cronin J. On 23 April 2013 Cronin J found that there was no evidence to support a finding that there was a de facto relationship between the father and the mother and dismissed the mother’s application. His Honour’s orders are the subject of appeal.
The mother also seeks an order that she be permitted to search international movement records for both the father and the child, and to adduce that evidence in support of her application for an order that she live with the child at the father’s home when the father is overseas. In her most recent affidavit, the mother annexes international records for both herself and the child, and asserts that the father is living overseas. She did not seek to adduce any evidence in support of that assertion. To the contrary, the order she seeks with respect to the father’s international movement records suggests that she does not have any evidence in support of her assertion and that it is just supposition on her part. Whilst this was not directly canvassed during the final hearing, it could have little or no relevance in circumstances where the children is 17 and a full-time boarder at E School and spends only occasional weekends and part of school holidays with the father.
The mother also seeks an order that she be permitted to inspect court files relating to proceedings in relation to previous proceedings in this Court to which the father was a party. The mother asserts that they contain important information. Not only is this not fresh evidence but on 27 October 2014, prior to the final hearing, the mother’s application seeking orders in similar terms was dismissed. This was a matter that was also raised during the course of the final hearing. In circumstances where it was conceded that the child’s current living arrangement presents no risk to him, and given the child’s strongly expressed wish that the Court not make orders requiring him to see the mother, notwithstanding the mother’s assertions as to the father’s previous relationships and the Court proceedings with respect to those relationships, I considered any evidence that might be contained in those files to be of little or no relevance to the proceedings before me. The mother has not sought to adduce any further evidence with respect to this issue and that remains the case.
Finally, the mother seeks an order that the father communicate with her in relation to the child’s long-term care and that the mother spend time with the child at the father’s home, which she refers to as “the family home”. The orders made by Brown J in June 2005 provided that the father have sole parental responsibility for the child. Whether that should remain the case or that, as the mother sought, the parties should have equal parental shared responsibility was the subject of the proceedings before me. The mother has now sought to adduce evidence as to the E School holiday dates and mid-term exeats in support of her case that she is available to care for the child, whereas the father is not, and asserts that the child will be at risk during these periods. There is no evidence that the father is unavailable. There is also no evidence of any risk to the child or any harm that has been caused and the issue of the arrangements for school holidays, albeit not the exact dates, was an issue dealt with at the final hearing.
The mother further submitted that her mental health has improved and sought to adduce evidence from her psychiatrist Dr U. In that report dated 28 January 2015, Dr U, after setting out some of the history, described:
[The mother] has engaged well with the team, is compliant with prescribed treatment, and her thinking and behaviour appears to be structured and organised.
To the extent that the mother sought to demonstrate that her mental health had improved, the other report upon which she sought to rely, which was dated 16 July 2014, described the mother as “now stable and obtaining treatment” and that:
Now that [the mother’s] mental state is stable and she has a good understanding of her diagnosis she has been able to reflect on how her illness may have impacted on various areas of her life in the past.
This is also consistent with the evidence before the Court at the final hearing. In any event, the mother’s mental health is just one issue and neither the father nor the Independent Children’s Lawyer put their cases on the basis that the mother should not spend time with the child because of the state of her mental health. In essence, the mother seeks to revisit issues already canvassed during the hearing before me and the matters the subject of the proceedings before Cronin J.
It also appears that the mother is seeking the opportunity to go over aspects of her case that she has already had the opportunity to address, rather than there being any further relevant evidence upon which she seeks to rely. In my view, it is not appropriate to re-open the case for those purposes. Insofar as the mother does seek to adduce further evidence, I am satisfied that the evidence is not material to the matters I must determine or such that the interests of justice require it to be admitted nor, in my view, is the evidence if accepted likely to affect the outcome of the case. Insofar as there is further but not fresh evidence that the mother seeks to adduce, she does not offer an explanation as to why she did not adduce that evidence at the final hearing.
I am satisfied that the father is likely to be prejudiced by the re-opening of these proceedings. However, of even greater significance is what I consider to be the potential prejudice to the child. In this case, the fact that these are parenting proceedings and notwithstanding the provisions of Division 12A does not lead me to the conclusion that the mother should be permitted to re-open her case. To the contrary, having regard to the child’s welfare, with respect to this application I am satisfied, as submitted by the Independent Children’s Lawyer, that his interests will be best served by the matter being brought to a conclusion so that he can continue this very important year of study in the knowledge that these proceedings have been finalised.
In all of the circumstances, I propose to dismiss the mother’s application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 4 February 2015.
Associate:
Date: 9 February 2015
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