Canh & Canh

Case [2021] FedCFamC1A 36

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Canh & Canh [2021] FedCFamC1A 36

Appeal from: Canh & Canh [2020] FamCA 882
Appeal number(s): EAA 148 of 2020
File number(s): NCC 2413 of 2016
Judgment of: ALDRIDGE, GILL & HARTNETT JJ
Date of judgment: 14 October 2021
Catchwords:

FAMILY LAW – APPEAL – PARENTING – Relocation – Appeal from orders permitting the mother to relocate but which did not alter time the children were to spend with the father – Actual bias and reasonable apprehension of bias alleged – Error asserted to arise from failure to admit evidence contained on a USB sought to be tendered at hearing – Whether mistake of fact as to where the parties were living prior to the mother’s relocation amounted to appealable error – Asserted failure to test evidence – No error demonstrated by the primary judge – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Evidence contained on a USB which was sought to be tendered at first instance – USB contained large amount of unidentified material –
Further affidavit relating to issues in dispute at first instance – Application dismissed.

Legislation:

Family Law Act 1975 (Cth) ss 93A, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35

Family Law Rules 2004 (Cth) Sch 3

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3

Cases cited:

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Franklyn & Franklyn [2019] FamCAFC 256

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hsiao v Fazarri (2020) 383 ALR 446; [2020] HCA 35

Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Number of paragraphs: 101
Date of hearing: 7 September 2021
Place: Sydney
The Appellant: Self-represented litigant
Counsel for the Respondent: Mr O’Brien
Solicitor for the Respondent: Paul Bard Lawyers

ORDERS

EAA 148 of 2020
NCC 2413 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR CANH

Appellant
AND:

MS CANH

Respondent

ORDER MADE BY:

ALDRIDGE, GILL & HARTNETT JJ

DATE OF ORDER:

14 OCTOBER 2021

THE COURT ORDERS THAT:

1.The Application in an Appeal filed 23 August 2021 is dismissed.

2.The appeal is dismissed.

3.The appellant is to pay the respondent’s costs fixed in the sum of $16,924.

Note:   The form of…

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Canh & Canh [2021] FedCFamC1A 36
Case
[2021] FedCFamC1A 36
Decision Date

CaseChat Overview and Summary

In the matter of Canh & Canh, the father sought to appeal a decision made by the Federal Circuit and Family Court of Australia concerning the parenting arrangements of the parties' children. The primary concern of the father was the admission of additional evidence on appeal, specifically an affidavit and a USB containing numerous documents, which he believed would demonstrate an error in the original decision. The mother opposed the father's application, arguing that the evidence was not relevant or admissible, and that the father had failed to provide a clear schedule and index of the material sought to be admitted.

The legal issues before the court involved the discretion to admit further evidence on appeal and whether the proposed evidence could demonstrate an error in the original decision. The court examined the factors set out in CDJ v VAJ, including the availability of the evidence, admissibility, dispute over the evidence, and the potential for a rehearing at first instance. The court found that the father had not demonstrated that the content of the USB was apt to demonstrate error or that it should be admitted on appeal to remedy an error.

The court held that the father had not met the threshold for the admission of further evidence on appeal and dismissed the father's complaint. As the father was wholly unsuccessful on the appeal, the mother was awarded her costs of the appeal in the sum of $16,924.

In conclusion, the father's appeal was dismissed, and he was ordered to pay the mother's costs of the appeal. The court's decision was based on the factors set out in CDJ v VAJ, and the failure of the father to provide a clear schedule and index of the material sought to be admitted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Despite the late identification of the appeal grounds, the mother advised that she was in a position to answer the grounds as then identified by the father.Application to adduce further evidence By an Application in an Appeal filed 23 August 2021, the father sought to introduce evidence on the appeal. The father identified two items of evidence, being an affidavit sworn by him on 16 October 2020, and a USB containing a number of documents. The power to receive further evidence is now contained at s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and, although structured slightly differently to the provision previously contained at s 93A of the Family Law Act 1975 (Cth) (“the Act”), works no difference to the operation or substance of the discretion to admit further evidence on appeal. It is a power described by the majority of Kiefel CJ, Bell and Keane JJ in Hsiao v Fazarri (2020) 383 ALR 446 at [43] that “exists to serve the demands of justice”. The power was also described as “remedial” by the majority judgment in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ ”), which identified:109.… Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. The discretion to admit further evidence is focused on the capacity of the evidence to enable the appeal court to identify and correct error in the original decision. The majority in CDJ v VAJ identified that the exercise of the discretion will also be informed by factors such as whether the evidence was available to be obtained for the hearing under review, whether the material is admissible, whether the evidence is disputed, the availability of a further application at first instance, and whether the evidence is led for the purpose of securing a rehearing at first instance (at [114]–[115]). Given the focus of the discretion it is incumbent upon a party seeking to adduce further evidence to identify how the proposed evidence demonstrates error in the original decision. At the hearing of the appeal the father displayed some uncertainty and confusion about what was contained on the USB that he sought to have admitted, in particular, uncertainty about whether it reflected what he had sought to admit before the primary judge. This uncertainty emphasised the importance of the direction previously given to the father on 15 August 2021 to provide a schedule and index of the material sought to be admitted from the USB by 30 August 2021. The father did not prepare such a schedule, and so, while it could be seen that the USB contained a large number of documents, their significance was not apparent. The USB contained a large number, in the order of hundreds, of documents. On their face a large number of them appeared to relate to the financial dispute between the parties, although were not restricted to such subject matter. Neither the documents, nor their significance was identified by the father, as the father failed to comply with the direction that was designed to facilitate such an analysis. Under those circumstances, the father has not demonstrated that the content of the USB is apt to demonstrate error, or that the USB should be admitted on appeal in order to remedy an error.

Decision

Reasons for decision

This complaint did not attract a recognised basis for the review of a judgment. This ground of appeal fails.CONCLUSION AND COSTS It follows that the appeal will be dismissed. The mother sought her costs of the appeal based upon the ground that the appeal was wholly unsuccessful. The quantum sought was in the sum of $16,924, as set out in the costs schedule provided for the mother. The schedule identifies costs reasonably incurred in the preparation and conduct of the mother’s case, which was calculated at the time of its preparation pursuant to Sch 3 of the Family Law Rules 2004 (Cth), which is now Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) (updated with increased amounts). Although the father asserted some difficulty in respect of the payment of costs, his position was that he “suppose[d]” that he would have to pay if he was unsuccessful on the appeal (Transcript 7 September 2021, p.46 line 1). The father has been wholly unsuccessful on the appeal, being a matter set out at s 117(2A)(e) of the Act that justifies the departure from the starting position set out at s 117 of the Act, that each party should bear his or her own costs. Accordingly, absent the specific identification of evidence bearing upon other considerations set out in s 117(2A) of the Act it is appropriate that the father pay the mother’s costs fixed in the sum of $16,924.

Ratio Decidendi

Legal Principle Established

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