Hopkins & Walker - [2007] FamCA 317

FAMILY COURT OF AUSTRALIA

HOPKINS & WALKER

[2007] FamCA 317

FAMILY LAW - APPEAL – parenting orders – leave to file proceedings – 10 years of constant litigation – undertaking given not to bring proceedings without leave – after undertaking one of two children began to reside with father – 12 months later father sought leave to require mother and other child to have contact with child in his care – leave refused – material change in circumstances not decisive in considering whether leave should be granted – Considerations of the impact on Mother’s mental health in determining whether leave should or should not be granted were entirely appropriate

FAMILY LAW - APPEAL – Application to adduce further evidence allowed – Independent Children’s Lawyer sought to adduce further evidence regarding Mother’s mental health – Father objected on grounds that he had only received the evidence five days prior and would not have the opportunity to question the report writer – report merely updated circumstances which were fully explored at an earlier hearing – as the application to seek leave would normally be conducted without cross-examination the absence of an opportunity to challenge the report outweighed any prejudice suffered by its late delivery – report bolstered the findings of the trial Judge and was clearly relevant

Family Law Act 1975 (Cth), s 60B, s 68B(1), s 68B(2),s 60CC, s 93A, s 93A(2)

Bennett v Bennett (2001) FLC 93-088

CDJ v VAJ (1998) 197 CLR 172

N and R (1991) FLC 92-252

Queen v Watson ex parte Armstrong (1976) 136 CLR 248

Rice v Asplund (1979) FLC 90-725

Wollongong Corporation v Cowan (1955) 93 CLR 435

Zabaneh (1986) FLC 91-766

APPELLANT:

MR
HOPKINS

RESPONDENT:

MS
WALKER

INDEPENDENT CHILDREN’S LAWYER:

JULIE ANN HARRINGTON

FILE NUMBER:

BRF

4770

1995

APPEAL NUMBER:

2006

DATE DELIVERED:

12 APRIL 2007

PLACE DELIVERED:

BRISBANE

JUDGMENT OF:

KAY, WARNICK AND BARRY JJ

HEARING DATE:

28 FEBRUARY 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 SEPTEMBER 2006

LOWER COURT MNC:

[2000] FamCA 1057

REPRESENTATION:

THE APPELLANT:

IN PERSON BY VIDEOLINK FROM HOBART

THE RESPONDENT:

NO APPEARANCE

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

MS BRASCH

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

MS JULIE HARRINGTON

Orders

That the appeal filed 18 October 2006 be dismissed.
That the cross appeal filed 25 January 2007 be allowed by consent.
That Orders 1 – 6 of the orders made by Justice Jordan on 26 September 2006 be set aside.
That the application of the father filed 7 November 2005 be otherwise dismissed.
That any further court listing relating to the application be otherwise vacated.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE WITH VIDEO LINK TO HOBART

Appeal Number: NA 86 of 2006
File Number: BRF 4770 of 1995

MR HOPKINS

Appellant

And

MS WALKER

Respondent

REASONS FOR JUDGMENT

The parties in this matter have been litigating for more than ten years. They are the parents of two children B born in June 1993 and C born…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hopkins & Walker

Details

AGLC: Hopkins & Walker [2007] FamCA 317
Case: [2007] FamCA 317
Decision Date: 12 April 2007

CaseChat Overview and Summary

This matter concerned an appeal before the Full Court of the Family Court of Australia, comprising Kay, Warnick and Barry JJ. The appeal involved a dispute regarding parenting orders, and the central issue was whether the Court should admit fresh evidence on appeal. This fresh evidence comprised a letter from a doctor who had diagnosed the Mother with symptoms associated with traumatic stress disorder, noting a significant deterioration in her mental state since a previous assessment.

The legal issues before the Court were primarily concerned with the principles governing the admission of fresh evidence on appeal, specifically under s 93A(2) of the *Family Law Act 1975* (Cth). The Court was required to determine whether the fresh evidence was of such a nature that it ought to be admitted to ensure the proceedings did not miscarry, notwithstanding the usual appellate considerations of finality and discoverability. The Court also had to consider the remedial nature of s 93A(2), which empowers the Full Court to admit further evidence where it would demonstrate that the order under appeal is erroneous and cannot otherwise be remedied.

The Court's reasoning was guided by the High Court's decision in *CDJ v VAJ*, which established that in exercising the discretion to admit fresh evidence under provisions like s 93A(2), the critical factor is the subject matter of the proceedings. In cases involving the interests of children, the purpose of admitting further evidence is to prevent miscarriages of justice, and therefore, tests based on finality are not necessarily as stringent as in other common law appeals. The Court noted that while factors such as finality, discoverability, and the likely effect of the evidence remain relevant, the primary consideration is whether the evidence, if accepted, would show the order under appeal to be erroneous. The Court acknowledged that s 93A(2) is remedial in nature, designed to allow the Full Court to correct errors that cannot be remedied through conventional appellate procedures.

The Court ultimately admitted the fresh evidence, finding that it was relevant to the Mother's capacity to care for the children and that its admission was necessary to ensure the proceedings did not miscarry. The Court's decision to admit the evidence was based on its assessment of the doctor's report, which indicated a significant and concerning deterioration in the Mother's mental health, potentially impacting her ability to parent.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The principles relating to fresh evidence being adduced on appeal were set out in CDJ v VAJ (1998) 197 CLR 172, (1998) FLC 92-828, (1998) 23 FamLR 755 a decision of the High Court. In the majority judgment of McHugh, Gummow and Callinan JJ their Honours observed:“104. In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2)and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion.” At paragraph 109 their Honours observed:“109. One consideration in construing s 93A(2) is its remedial nature. 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. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.” The report is in the form of a response to a letter from the Independent Children’s Lawyer posing certain questions to the Doctor.The Doctor diagnosed the Mother as displaying:“A pattern of symptoms associated with traumatic stress disorder.”This diagnosis had been made as early as November 2003. In response to a query of how the symptoms manifest themselves the Doctor noted at paragraph 2:“The underlying feeling is now hopeless and helpless depressiveness. She is a person who has needed order in her life. The constant change and challenge of the last decade or more has never allowed for the stability and predicability she has needed. She has had an overwhelming sense of powerlessness. She has lost her sense of self and identity. She is fearful, phobic, anxious and exhausted. She remains in grief about the loss of her son C . She has withdrawn from her family of origin. Emotionally she has become numb. This is used as a protective mechanism but is a sign of major depression.- - -This was a different person to the one I saw in May 2005 when she was quite settled after that last Court hearing. In November, 2006 I thought she was worse than the person I saw and wrote about in February 2005. She had always said she would never suicide because of her strong religious convictions, but this lady in November 2006 had lost the fight that had kept her going as long as I had known her. She came to me for support and I believe if she did not get a strong show of support (hence my letter at that time) there could be a risk of self harm.”