Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Sanders & Sanders [2022] FedCFamC1A 185
Appeal from: Sanders & Sanders [2022] FedCFamC1F 213 Appeal number: NAA 96 of 2022 File number: SYC 7660 of 2020 Judgment of: AUSTIN, BENNETT & GILL JJ Date of judgment: 22 November 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Appeal from final parenting orders – Where the appellant father asserted that the respondent mother, witnesses and the Independent Children’s Lawyer (“the ICL”) had lied either in their evidence or by their submissions – Where the appellant’s approach to the appeal was flawed – Where the appellant’s criticism is not a matter that sounded in error by the primary judge – Application in an Appeal – Further evidence – Where the appellant father sought to adduce further evidence in the form of recordings of interactions between the children, witnesses and the ICL –– Where the evidence did not reveal error by the primary judge – Application dismissed –– Appeal dismissed – Costs – Orders made for further evidence and written submissions. Legislation: Evidence Act 1995 (Cth) s 138
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Family Law Act 1975 (Cth) s 93A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: CDJ v VAJ (1998) 197 CLR 182; [1998] HCA 67
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Number of paragraphs: 79 Date of hearing: 29 August 2022 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Givney Solicitor for the Respondent: Minors Family Law Counsel for the Independent Children’s Lawyer: Mr O’Brien Solicitor for the Independent Children’s Lawyer: Russell Kennedy Lawyers ORDERS
NAA 96 of 2022
SYC 7660 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SANDERS
Appellant
AND: MS SANDERS
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
AUSTIN, BENNETT & GILL JJ
DATE OF ORDER:
22 November 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 12 August 2022 is refused and dismissed.
2.The appeal is dismissed.
3.In the event that the respondent seeks to rely upon further evidence in support of an application for costs, then the respondent is to file and serve such within seven (7) days of this judgment.
4.In the event that the appellant seeks to lead evidence to resist the respondent’s application for costs, then the appellant is to file and serve such within 14 days of this judgment.
5.The respondent is to file and serve written submissions directed to costs within 21 days of this judgment.
6.The appellant is to file and serve any written submissions he may make directed to costs within 28 days of this judgment.
7.The issue of costs will then be dealt with on the papers.
Note: The…
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- Sanders & Sanders [2022] FedCFamC1A 185
- Case
- [2022] FedCFamC1A 185
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CaseChat Overview and Summary
Sanders & Sanders was an appeal against a decision of the Family Court. The appellant contested the primary judge’s findings and sought to adduce further evidence to support their case. The respondent opposed the appeal and the application for additional evidence, arguing that it was not relevant to the identified errors in the judgment. The appeal court had to determine whether the appellant had successfully identified an error in the primary judgment and whether the proposed additional evidence was relevant to the appeal. The court also needed to decide whether the additional evidence should be admitted under the discretionary power provided in section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The court found that the appellant had not identified any error in the primary judgment. Instead, the appellant had focused on attacking the credibility of the respondent, the family therapist, and the Independent Children’s Lawyer. The court emphasised that the appeal was not a platform to discredit the parties involved but to challenge the primary judge’s decision based on errors in the judgment. The proposed additional evidence, which included recordings of the children’s interactions with the ICL, family therapist, and respondent, was not relevant to the errors the appellant claimed existed in the judgment. The court noted that the power to admit further evidence on appeal was discretionary and existed to prevent miscarriages of justice by remedying errors that could not be addressed through conventional appellate procedures. The court held that the proposed evidence did not demonstrate any error in the judgment that required the intervention of the appeal court.
The appeal was dismissed, and the application to adduce further evidence was refused. The court found that the appellant had failed to demonstrate any error on the part of the primary judge. The respondent sought costs against the appellant, and the court directed that evidence and submissions on the issue of costs be provided so that the matter could be determined on the papers. The court did not grant the respondent’s request to adduce further evidence in respect of the costs application.
The court found that the appellant had not identified any error in the primary judgment. Instead, the appellant had focused on attacking the credibility of the respondent, the family therapist, and the Independent Children’s Lawyer. The court emphasised that the appeal was not a platform to discredit the parties involved but to challenge the primary judge’s decision based on errors in the judgment. The proposed additional evidence, which included recordings of the children’s interactions with the ICL, family therapist, and respondent, was not relevant to the errors the appellant claimed existed in the judgment. The court noted that the power to admit further evidence on appeal was discretionary and existed to prevent miscarriages of justice by remedying errors that could not be addressed through conventional appellate procedures. The court held that the proposed evidence did not demonstrate any error in the judgment that required the intervention of the appeal court.
The appeal was dismissed, and the application to adduce further evidence was refused. The court found that the appellant had failed to demonstrate any error on the part of the primary judge. The respondent sought costs against the appellant, and the court directed that evidence and submissions on the issue of costs be provided so that the matter could be determined on the papers. The court did not grant the respondent’s request to adduce further evidence in respect of the costs application.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
For the reasons that follow, the appeal is dismissed.The Appeal and the Application to Adduce Further Evidence Despite the reduction in the number of grounds effected by the Summary of Argument, they remained somewhat opaque as to what error in the judgment was being asserted. The identification of error is fundamental to an appeal. The High Court, in Fox v Percy (2003) 214 CLR 118 (“Fox v Percy”), described that where, as here, an appeal is by rehearing, the appeal court is obliged to conduct a “real review” of the trial and of the primary judge’s reasons, and if after “making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged to, discharge their appellate duties in accordance with the statute” (Fox v Percy at [27]). This process necessitates that the appellant demonstrate error on the part of the primary judge, as identified in House v The King (1936) 55 CLR 499, on the finding of facts, in taking into account an irrelevant consideration, failing to take into account a relevant consideration, making an error of law or in reaching an ultimate conclusion that is manifestly wrong. The grounds, however, were an attack upon the respondent, family therapist and Independent Children’s Lawyer (“the ICL”), rather than the identification of error in the judgment. The overall thrust of the appellant’s case was that the respondent had committed perjury, the family therapist had committed perjury and failed to bring particular matters to the attention of the court, and that the ICL had lied. The appellant explained that he had not sought to critique the judgment of the primary judge, but had rather directed his attention to the respondent, ICL and family therapist, asserting that they had misled the primary judge. In accordance with this explanation, the appellant sought to adduce further evidence on the appeal, a significant part of which purported to be recordings of the children’s interactions with the ICL, family therapist and the respondent. Consistently with the other aspects of an appeal by rehearing, the determination as to whether to admit the proposed further evidence hinges upon the capacity of the evidence to demonstrate errors that require the intervention of the appeal court. The power to admit further evidence on appeal is contained at s 35 of the Federal Circuit and Family Court of Australia Act2021 (Cth) which is in terms analogous to those previously set out at s 93A of the Family Law Act 1975 (Cth). It is a discretionary power, described by the majority in CDJ v VAJ (1998) 197 CLR 182 (“CDJ v VAJ”) at [104], as “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. …
Decision
Reasons for decision
There is no merit in this ground and no warrant to permit the introduction of the evidence that the appellant seeks to support it with. The ground does not establish any error in the judgment.Conclusion The Application to Adduce Further Evidence is refused for the reasons set out in relation to each of the grounds that it was argued to support. The appeal is unsuccessful as it has failed to demonstrate error on the part of the primary judge.Costs In the event that the appeal was unsuccessful, the respondent indicated that she pursued costs against the appellant in the sum of $8,900.37 as set out in her costs notice filed 22 August 2022, and that she would seek the opportunity to adduce further evidence in respect of such an application. Directions will be given to enable evidence and written submissions on the issue of costs such that the matter may then be determined on the papers.
Ratio Decidendi
Legal Principle Established
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