CROWLEY & PICTON

The matter before the Family Court of Australia involved an appeal in a parenting case concerning a child. The appellant sought to introduce further evidence in the appeal process, including a transcription of a JIRT interview and a Department of Family and Community Services contact record, which had not been presented during the trial. Additionally, the appellant sought leave to amend the grounds of appeal and to rely on an updated Summary of Argument. The respondent did not oppose the application for leave to amend.

The primary legal issues were whether the evidence could be introduced at the appellate stage, and if so, whether it would have changed the outcome of the trial. The court considered the principles established in CDJ v VAJ and applied them to the facts of this case. The court also evaluated whether the primary judge had given inadequate weight to the evidence concerning the harm the child faced when in the mother's care.

The court dismissed the applications to adduce further evidence, finding that the evidence was available or obtainable at the time of the trial and that its inclusion would not have altered the outcome. The court found that many of the grounds of appeal relied on this further evidence, and without it, the appeal could not succeed. Consequently, the court dismissed the appeal and denied the Independent Children’s Lawyer’s application for costs.

The court granted leave to the appellant to file an Amended Notice of Appeal and a further Summary of Argument, as well as to make an oral application to adduce a transcript of a JIRT interview dated 9 September 2015. The other applications in the appeal were dismissed.