Smagulova & Bartos (No 3) [2025] FedCFamC1F 863 (20 November 2025)

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

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Smagulova & Bartos has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. I have today an application to reopen the evidence in the trial which was before me in February this year.
2. The application, filed in August of this year, was originally listed to be heard on 12 September of this year. Following jointly provided information received on 10 September 2025 - containing what I will describe as an agreed request that that hearing be adjourned as a result of the mother being admitted to hospital for surgical intervention - that hearing was adjourned. Whilst a request was made that it return on 8 October, the parties were advised on 10 September that it was listed to 14 October 2025. Following that, the parties were advised, I think, on a number of occasions that the listing of the matter had to be adjourned, for reasons that are not related to this proceeding.
3. It is in that context, then, that the Application in a Proceeding filed in late August 2025 comes to be considered on 20 November 2025.
4. I have had the benefit of written submissions prepared on behalf of each of the parents, and I have received brief oral submissions to supplement those by Counsel who appear on behalf of each of them. I have also had the benefit of submissions made by Counsel who appears on behalf of the Independent Children's Lawyer.
5. The mother's position is to oppose the father's application for a reopening to permit him to adduce the evidence contained in an affidavit of his dated 28 August 2025 and also a further affidavit sworn or affirmed today in respect of which leave was sought to read and file.
6. The submissions made by Counsel for the applicant are, as I have said, those contained in the written outline provided today, as well as those supplemented orally.

1. There is no dispute about the principles which are to be applied in the consideration of the application. They may be summarised to be as follows:

(a) that it is well settled that reopening the case prior to the delivery of judgment is an exception to rather than the usual course of the trial; and

(b) the question to be considered in determining such an application is whether the interests of justice are better served by allowing or rejecting the application; and

(c) whether the evidence is so material that the interests of justice require its admission; and

(d) whether the evidence, if accepted, is likely to affect in a substantial way the ultimate finding or findings that would otherwise have been available on the evidence at the hearing; and

(e) whether the further evidence is relevant to issues directly affecting children's best interests and the ultimate decision about that; and

(f) the nature and extent of any prejudice likely to be caused to a party in responding to any such evidence within a reasonable time; and

(g) whether the child, is likely to suffer detriment if the evidence is admitted and the trial reopened and, if so, the nature and extent of any detriment; and

(h) proper recognition of the principle that it is in all children's best interests, and that of parents, that parenting litigation be finalised as soon as possible; and

(i) recognition of the fact that proceedings for parenting orders are not in the nature of ordinary inter partes proceedings but involve a broader inquiry into the best interests of children than that which is prescribed by the issues identified by parents in any particular case.[1]

1. In this case, it seems to me that the evidence which forms the basis of the application is, in a sense, more of the same. It is a continuation of that which was clearly ventilated before me when the matter proceeded for five days in February. It is more of the same insofar as the demonstration of parental conflict and inability to arrive at and participate in communication in relation to their child.
2. I am not persuaded, therefore, in the exercise of the discretion, that the interests of justice are better served by permitting the reopening of the evidence to adduce the evidence which the father now seeks to adduce. This is because I consider it to be a further manifestation of the ongoing parental conflict which was the subject of assessment and comment by the author of the Family Report, both in that report and during the course of the evidence given orally earlier this year.
3. I am also unpersuaded that the evidence sought to be adduced by the father is likely to affect in a substantial way the ultimate finding or findings that would otherwise have been available on the evidence at trial.
4. As I have said, it seems to me that, at its highest, it amounts to little more than further examples of the difficulties between these two parents and the conflict which continues (which was the subject of evidence before me) and the difficulties associated, as I have said, with the parental relationship which relate to the assessment of the manner in which they are likely, in the future, to conduct their roles as co-parents of this child.
5. For those reasons, which I consider sufficient in the circumstances of this case to explain why I intend to reject the application to reopen, I intend to do just that.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan.

[1] See, for example, Suell & Suell (Re-Opening) [2009] FamCA 55; (2009) 40 Fam LR 690 and the other authorities to which Counsel have helpfully referred me.