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Re-opening Family Law Proceedings where there is New Evidence

By December 15, 2016No Comments

By Sharla Stevens

We have spoken frequently about the increasing delays that people are experiencing in the family courts to get their family law proceedings to trial. Another situation that is increasing in frequency now is the time it takes for judgments to be handed down after the trial. Clients may feel relieved when they finally make it to their trial dates with hopes that their matter will soon be delayed. The unfortunate truth in a lot of circumstances if that once the trial is finished it can take a long time before the judgment is released. This creates further uncertainty for the parties as they wait for the decision in their matter before they can move on.

Practically, this can cause further problems where circumstances have changed significantly in the period between the trial and when the judgment is handed down. This may make the final orders that are made by the Judge unworkable.

So what happens then?

In these situations you can ask the Judge for leave to re-open your matter and provide further evidence to the Court as to the change in circumstances. It may be that, depending on the changes, that your matter has to go back and be re-heard in another trial. This may be the case in a property and parenting matters.

An example in a property matter may be where the value of the former family home decreased significantly in the period between the trial and judgment being handed down where final orders were made for one person to keep and refinance the house and pay the other person a sum of money. In this situation a decrease in the value may mean that the person taking over the property and refinancing could no longer get approval from the bank to re-finance for the amount required to pay out the other person. The final orders would then be unworkable and potentially prejudicial to the parties.

An example in a parenting matter can be seen in the recent case of Stone & Clifford [2016] FCCA 2045. In this case after the trial had finished the father issued a subpoena to the children’s school and sought leave to re-open the case on the basis that the evidence before the Judge at the trial was that the children were progressing well at school. The information produced by the school in answer to the subpoena showed that the situation, particularly in relation to one of the children, was quite different and there was a change in the attitude by the children’s school towards the ongoing friction between the father and the mother as it effected the children’s education.

When deciding whether to allow a parenting case to be re-opened the Judge must consider whether the proposed new application has an impact on the proposals already put to the court by the parties. That impact must be so significant as to not only change the direction of a party’s case but also to require the trial Judge to contemplate a different scenario to that determined during the trial. If the new evidence fits into that category there must be an obligation on the court to pursue it as a consideration of how it will impact upon the lives of the children and the Judge’s consideration of what is in the children’s best interests.

To read more about this case see: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/2045.html

If you need assistance in relation to re-opening a family law matter please contact Cristina Huesch or one of our solicitors Sharla Stevens or Angela Li at Alliance Family Law on (02) 6223 2400.

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