FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kabir & Kabir [2023] FedCFamC1A 45
Appeal from: Kabir & Kabir (No 2) [2022] FedCFamC1F 874 Appeal number(s): NAA 264 of 2022 File number(s): CAC 2337 of 2019 Judgment of: ALDRIDGE, ALTOBELLI & CAMPTON JJ Date of judgment: 6 April 2023 Catchwords: FAMILY LAW – APPEAL – Appeal from the dismissal of a contempt application brought against the respondent – Where the appellant asserted two instances of contempt of orders made in the context of parenting proceedings preventing disclosure of confidential documents – Whether the orders had been breached beyond reasonable doubt – Challenges to findings of fact – Challenges to weight – No error established – Appeal dismissed. Legislation: Children and Young Persons Act 2008 (ACT) ss 846
Family Law Act 1975 (Cth) s 93A, 112AP
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Family Law Rules 2004 (Cth) r 15.30(2)
Mental Health Act 2016 (Qld) s 3
Public Health Act 2005 (Qld) ch 4A
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Ibbotson and Wincen (1994) FLC 92-496
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Division: Division 1 Appellate Jurisdiction Number of paragraphs: 55 Date of hearing: 29 March 2023 Place: Sydney The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 264 of 2022
CAC 2337 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KABIR
Appellant
AND: MS KABIR
Respondent
order made by:
ALDRIDGE, ALTOBELLI & CAMPTON JJ
DATE OF ORDER:
29 march 2023
ORDERS MADE ON 29 MARCH 2023:
1.The Application in an Appeal filed on 10 March 2023 is dismissed.
2.The Application in an Appeal filed on 16 March 2023 is dismissed.
3.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kabir & Kabir has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, ALTOBELLI & CAMPTON JJ:
INTRODUCTION
By Notice of Appeal filed on 7 December 2022, Mr Kabir…
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CaseChat Overview and Summary
In the case of Kabir & Kabir, the appellant contested a decision of the primary judge who found that certain documents were plausibly obtained through a legislative information sharing regime, thereby negating the charge that the documents were obtained illegally. This was in the context of a contentious parenting dispute, marked by serious allegations of family violence, which were strenuously denied by the appellant. The appeal primarily focused on the scope of the appeal and the admissibility of further evidence presented by the appellant.
The key legal issues before the court were whether the primary judge had erred in admitting or excluding evidence, and whether the appellant's failure to present certain evidence at the initial hearing constituted an error that warranted a different outcome. Additionally, the court had to determine if the newly proposed evidence could demonstrate that the original decision was erroneous and whether admitting such evidence would serve the demands of justice.
The court evaluated the appellant's application to adduce further evidence and found that the proposed material, particularly that which post-dated the original hearing, could not demonstrate error in the primary judge's decision. Furthermore, the evidence that was available at the time of the original hearing but not presented was not tendered due to no cogent explanation from the appellant. The court concluded that the appellant had not established that the admission of the further evidence would have produced a different result, thereby affirming the primary judge's decision.
The appeal was dismissed, and the original decision of the primary judge was upheld. No new evidence was admitted, and the findings regarding the documents at tag 7 remained unchanged. The court's decision underscored the importance of ensuring that the proceedings do not miscarry and that the demands of justice are met.
The key legal issues before the court were whether the primary judge had erred in admitting or excluding evidence, and whether the appellant's failure to present certain evidence at the initial hearing constituted an error that warranted a different outcome. Additionally, the court had to determine if the newly proposed evidence could demonstrate that the original decision was erroneous and whether admitting such evidence would serve the demands of justice.
The court evaluated the appellant's application to adduce further evidence and found that the proposed material, particularly that which post-dated the original hearing, could not demonstrate error in the primary judge's decision. Furthermore, the evidence that was available at the time of the original hearing but not presented was not tendered due to no cogent explanation from the appellant. The court concluded that the appellant had not established that the admission of the further evidence would have produced a different result, thereby affirming the primary judge's decision.
The appeal was dismissed, and the original decision of the primary judge was upheld. No new evidence was admitted, and the findings regarding the documents at tag 7 remained unchanged. The court's decision underscored the importance of ensuring that the proceedings do not miscarry and that the demands of justice are met.
Orders
Orders of the court
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Background
Background to the litigation
In relation to the documents at tag 7, the primary judge found that a legislative information sharing regime plausibly explained how the documents could have come into the possession of the respondent, and thus the charge was not established beyond reasonable doubt. BACKGROUND Whilst matters of background were not expressly dealt with by the primary judge in his reasons, the affidavits filed by both the appellant and respondent in the contempt application, and in the appeal, creates the impression of an acrimonious parenting dispute between them in which the respondent made serious allegations about family violence allegedly perpetrated by the appellant on her, which the appellant denied.THE APPEALScope of the appeal As the Full Court of the Federal Court of Australia identified in Bahonko v Sterjov (2008) 166 FCR 415, it is for the appellant to identify the errors in the judgment under appeal and to persuade the appeal court that they were made. The Full Court said at [3]:3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error. This is an appeal from a decision of a primary judge who was faced with a binary choice: either the contempt was established beyond a reasonable doubt, or it was not. There was no scope for discretion in this regard, and hence it is not an appeal from a discretionary judgment. It is also important to remember that generally, unless exceptional circumstances are established, a party will be bound by his forensic decisions and conduct of the trial (Metwally vUniversity of Wollongong (1985) 60 ALR 68, see also Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [51]). Appellant’s applications to adduce further evidence in the appeal The appellant filed an Application in an Appeal and a supporting affidavit on 10 March 2023 seeking to adduce further evidence in the appeal. The orders sought include:1.That the Respondent Mother’s affidavit dated 15 November 2019 be adduced as further evidence.2.That the Respondent Mother’s affidavit dated 28 April 2020 be adduced as further evidence.3.That the Federal Circuit and Family Court of Australia's Transcript dated 12 September 2022 be adduced as further evidence.4.That the subpoena material from Domestic Violence and Crisis Services, [City E] dated 22 November 2022 be adduced as further evidence.5.That the subpoena material from the [T Medical Centre], Queensland dated 22 November 2022 be adduced as further evidence.6.That the Federal Circuit and Family Court of Australia’s Transcript dated 10 November 2022 be adduced as further evidence.7.That the Federal Circuit and Family Court of Australia Registry’s communication in relation to subpoena material access from Commonwealth Court’s Portal dated 19 October 2022 be adduced as further evidence.8.That the Respondent Mother’s affidavit dated 2 December 2022 be adduced as further evidence.(As per the original)
Evidence
Evidence Before The Court
It is also important to remember that generally, unless exceptional circumstances are established, a party will be bound by his forensic decisions and conduct of the trial (Metwally vUniversity of Wollongong (1985) 60 ALR 68, see also Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [51]). Appellant’s applications to adduce further evidence in the appeal The appellant filed an Application in an Appeal and a supporting affidavit on 10 March 2023 seeking to adduce further evidence in the appeal. The orders sought include:1.That the Respondent Mother’s affidavit dated 15 November 2019 be adduced as further evidence.2.That the Respondent Mother’s affidavit dated 28 April 2020 be adduced as further evidence.3.That the Federal Circuit and Family Court of Australia's Transcript dated 12 September 2022 be adduced as further evidence.4.That the subpoena material from Domestic Violence and Crisis Services, [City E] dated 22 November 2022 be adduced as further evidence.5.That the subpoena material from the [T Medical Centre], Queensland dated 22 November 2022 be adduced as further evidence.6.That the Federal Circuit and Family Court of Australia’s Transcript dated 10 November 2022 be adduced as further evidence.7.That the Federal Circuit and Family Court of Australia Registry’s communication in relation to subpoena material access from Commonwealth Court’s Portal dated 19 October 2022 be adduced as further evidence.8.That the Respondent Mother’s affidavit dated 2 December 2022 be adduced as further evidence.(As per the original) The power to admit further evidence on appeal is found in s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which is in terms analogous to those previously set out at s 93A of the Family Law Act. It is a discretionary power, the purpose of which was described by the majority in CDJ v VAJ (1998) 197 CLR 172 at [104] as being “to ensure that the proceedings do not miscarry”. They further described the power as being remedial in nature, such that its principal purpose:109.… 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 majority further considered that:111.… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. … The observations of the Full Court point to the necessity of giving consideration to the substantive impact of the proposed further evidence, and, in particular, its capacity to show that the original decision was in error. The hearing before the primary judge took place on 21 October 2022. The material in Orders 4, 5, 6 and 8 of the appellant’s application all post-date the hearing. They cannot demonstrate error in the original decision. The material in Orders 1, 2, 3 and 7 of the appellant’s application were all available to the appellant at the time of the hearing but were not tendered, and he offers no cogent explanation for not doing so.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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