Hopkins & Walker

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.