Khadem & Penk

[2020] FamCAFC 211

FAMILY COURT OF AUSTRALIA

KHADEM & PENK [2020] FamCAFC 211

FAMILY LAW – APPEAL – PARENTING – Where the father sought to reopen his case due to alleged incompetence by his former counsel – Where the primary judge refused to grant leave for the father to reopen his case – Where the father alleged denial of procedural fairness – Where it could not be shown where the father’s former counsel had failed to conduct the father’s case properly – Whether the primary judge erred when making findings about the father’s credibility and demeanour – Where the primary judge was entitled to make those findings based upon all the evidence and her Honour’s own observations – Where the primary judge made no error when making the orders in respect of parental responsibility about medical and educational decisions, including in respect of vaccinations, in the mother’s favour – Where the primary judge made no error when considering s 60CC(3) of the Family Law Act 1975 (Cth) matters – Where it was open to the primary judge to make an order that the father only engage with the child’s health practitioners in certain ways – Appeal dismissed – Costs ordered in a fixed amount.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appeal hearing was conducted on Microsoft Teams due to the COVID-19 pandemic – Where the father sought leave to reopen the hearing of the appeal – Where the father claims he was denied procedural fairness due to technology failure – Where the father had all of the materials ahead of the appeal – Where the Full Court had the advantage of written submissions prior to the appeal hearing – Where counsel for the father did not alert the Full Court to technology failures or difficulties during the hearing – Where the father is seeking to reargue his case following the benefit of having heard the exchange between counsel and the Bench – Application dismissed – Costs ordered.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father sought leave to adduce further evidence after the Full Court had settled the Orders and reasons but before the judgment was delivered – Where the new material sought to revisit and perpetuate centrally disputed issues – Where the criteria for admission of further evidence on appeal is not met – Where the application has no reasonable likelihood of success – Application for leave to adduce further evidence is summarily dismissed.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 64B, 65D, 68B, 70NAE, 93A

Family Law Rules 2004 (Cth) rr 1.10, 10.12

Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Devries v Australian National Railway Commission (1993) 177 CLR 472; [1993] HCA 78
Dundas & Blake (2013) FLC 93-552; [2013] FamCAFC 133
Flanagan and Handcock