Keywords: Children – parenting – parenting orders – new evidence – re-open case to permit further evidence – Application for Leave to reopen – further evidence to be adduced – additional evidence to be adduced whilst awaiting decision.



In the case of Stone & Clifford [2016] FCCA 2045 (11 August 2016), the father wished to have further evidence presented to the Court, after the Court had reserved its decision for a trial in respect to parenting orders of his two children.

The Court invited the parties to provide further submissions which were not presented at trial.



A trial was conducted over several days and the primary issue was parental responsibility, where the father was seeking equal shared parental responsibility, however the mother was seeking sole parental responsibility.

Throughout the trial, the primary focus was on sole and equal parental responsibility, and not so much on more specific issues including the children’s schooling. Towards the end of the trial, his Honour Judge Wilson reserved his judgement for a later date.

The applicant father proceeded to issue a subpoena on the child’s school whilst the case was pending a decision and further proceeded to make an application to have the case reopened to adduce further evidence.  The father predominantly relied on the subpoena evidence in order for the Court to grant leave to re-open.

Predictably, the respondent mother contested the attempt to reopen the case on the basis that there had been Final Orders made on the third day of trial, and the father did not meet the criteria to have the case reopened.



His Honour, Judge Wilson, considered the criteria set out in the case of Naczek & Dowler (No 4) [[2008] FamCA 653], which states that, in order to be admissible, new evidence must have a tremendous influence on the outcome of case, whilst also making sure the best interests of the child is considered above all.

After reading the subpoenaed school documents, his Honour granted leave to have the case re-opened for the following reasons:

  1. Final Judgement had not been made;
  2. The evidence produced by the subpoena was different to the initial evidence provided in relation to the child;
  3. The evidence in 2 above contradicted the initial evidence presented;
  4. The best interests of the children;
  5. The mother did not raise a basis as to why she did not want to have the case re-opened; and
  6. It is in the best interests for all those involved in the proceedings to reach a decision as soon as practicable.

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