DRH & DKM

This matter concerned an appeal by the mother against parenting orders made by a Federal Magistrate. The mother also sought to adduce further evidence on appeal.

The primary legal issues before the court were whether the appeal had merit and whether the further evidence sought to be adduced by the mother should be admitted under section 93A of the relevant Act. The court was required to consider the principles governing the admission of further evidence on appeal, particularly in light of the High Court's decision in *CDJ v VAJ*, and whether such evidence would demonstrate that the original order was erroneous. The court also considered the operation of section 65D of the Act, which provides for subsequent applications to vary parenting orders.

The court reasoned that the further evidence sought to be admitted by the mother fell into two categories: evidence relating to matters already considered by the Federal Magistrate, and evidence of events occurring after the original decision. The court found that the evidence relating to transportation, travel arrangements, and Aboriginality could have been adduced at trial and, if admitted, would not render the original decision erroneous. The court also noted that the Federal Magistrate's findings regarding the parties' capacity to facilitate contact were based on the evidence before him and that the death of one of the children subsequent to the judgment did not alter the basis of the Federal Magistrate's reasoning. The court concluded that the further evidence did not establish that the original decision was erroneous and that applications for variation under section 65D would generally be the preferred procedure for dealing with changed circumstances.

Consequently, the court dismissed the appeal and refused the application to adduce further evidence. The court reserved costs and directed that written submissions be made in relation thereto.