Banham & Banham

The appeal in Banham & Banham was brought by the mother against the father in relation to parenting orders made by a primary judge of the Family Court of Australia. The mother sought a reversal of the parenting orders made on 28 April 2015, which had been made by consent and required the children to live with the father. The mother also sought a family report and interim orders to address difficulties caused by the pandemic. The father opposed the mother’s applications and the primary judge dismissed them.

The mother appealed on various grounds, including that there had been a denial of procedural fairness and that the primary judge had relied on documents that were not made available to the parties. The court found that the references complained of were available to the parties but were not accessed by them. Even if they had been, a properly conducted trial could not possibly make any difference to how the primary judge dealt with the allegations of family violence and thus to his Honour’s orders. There was evidence from other sources that would allow for the same findings to be made. The primary judge appropriately applied the principle in Rice and Asplund and took the evidence of the appellant at its highest. To grant the application for a family report would have defeated the purpose of the rule in Rice & Asplund. The appeal was dismissed as there was no merit in any of the Grounds of appeal.

The mother filed an Application in an Appeal seeking leave to adduce further evidence deposed to in her affidavit filed on the same date. The father opposed the application, and the court dismissed it. The evidence was nothing more than updating evidence deposing to alleged events occurring subsequent to the date of the orders the subject of the appeal. Thus that evidence certainly could not be received in order to demonstrate appellable error by the primary judge. The mother’s application to adduce further evidence was dismissed.

The court ordered that the appeal be dismissed, and the mother pay the father’s costs fixed in the sum of $4,400. The mother’s Application in an Appeal was also dismissed. The costs order was made pursuant to r 19.18(1)(a) of the Family Law Rules 2004. The mother’s counsel indicated at the hearing of the appeal that if the appeal was dismissed, the mother could not oppose an order for costs being made in favour of the father.