Ms R v Mr R

This case concerned an appeal to the Full Court of the Family Court of Australia regarding interim residence orders for two children. The primary dispute revolved around a trial judge's decision to vary a long-standing week-about shared residence arrangement, granting the husband sole interim residence of the children. The wife sought to adduce further evidence on appeal, arguing that this new evidence demonstrated the trial judge's order was erroneous.

The legal issues before the Full Court were twofold: firstly, whether the trial judge erred in varying the established week-about shared residence arrangement and granting interim sole residence to the husband, and secondly, whether the further evidence sought to be adduced by the wife should be admitted under section 93A(2) of the *Family Law Act 1975* to demonstrate that the order under appeal was erroneous. The court considered the principles for admitting further evidence on appeal, as outlined in *CDJ v VAJ*, which permit the Full Court to receive such evidence where it would demonstrate that the order appealed against is erroneous and that this error cannot otherwise be remedied.

The trial judge's decision to vary the shared residence arrangement was based on her reservations about both parties' ability to care for the children. She was satisfied that the husband could provide for the children's physical and emotional needs in the former matrimonial home, despite concerns about his recognition of their disabilities. Conversely, she was not satisfied that the wife could provide a stable situation or a safe driving environment. The wife's application to adduce further evidence included affidavits from various individuals, including a clinical psychologist whose reports highlighted the severity of the children's language disabilities and recommended a specific intervention program. The wife contended that this evidence, particularly concerning the children's disabilities and the ISADD program, demonstrated the erroneous nature of the trial judge's order.

The Full Court noted that the wife relied on *CDJ v VAJ* to argue that the further evidence would demonstrate the order was erroneous. The husband's counsel contended that none of the proposed evidence would establish this error. The court's ultimate decision on the admission of this evidence and the merits of the appeal would depend on whether it met the threshold established by section 93A(2) and the High Court's guidance.