Adduce further evidence
The mother sought to rely on further evidence in the form of a 200 page affidavit and transcript of hearing before Judge Howard. The court referred to section 93A(2) Family Law Act 1975 and the High Court in CDJ v VAJ  HCA 67. The relevant passage being:
“Its principle purpose 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 remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.”
The High Court went on to say:
“…nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. …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…”
Having regard to the above the Court admitted the transcript of the hearing.
The Court did not admit the 200 page affidavit noting much of the substantive parts of the affidavit contained submission, and failed to meet the above test.
The primary allegation the mother made with respect to coercion stemmed from an exchange between His Honour and Counsel for the ICL.
The context of the exchange was that an agreement had been reached on day 3 of the Trial at 5:30pm with respect to detailed parenting orders; however no agreement was reached on the issue of the child’s surname.
Counsel for the ICL made submissions to the effect that the parties would not allow the disagreement in relation to surname to de-rail the agreements made on the larger parenting issues. To this His Honour commented “Well, not only that, well, I won’t let it…I would not allow that to happen…”
The Court referred to Robinson and Willis (1982) FLC 91-215 with respect to principles concerning appeals from consent orders:
The fact that an order is made by consent does not make that order of any different nature from an order made otherwise … The order derives its force from the circumstance that it is a valid order made by the court in question, not from the agreement of the parties.
Amongst other conclusions which follow from that is that such an order may, subject to important qualification, be the subject of appeal in the same way as any other order. The important qualification is that as a consent order is made as a consequence of the consent of the parties to the court making that order, and not an adjudication by the court, the order may not be challenged by an appeal which is directed to the correctness of that order, that is, it cannot be appealed against on the merits. However, other grounds of appeal remain available as for example, fraud, mistake, fresh evidence, absence of jurisdiction…”
The Full Court also referred to the High Court in Johnson and Johnson  HCA 48 in relation to what may be appropriate interjection from the Bench:
“At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx….Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue and counsel is usually assisted by hearing those opinions, and being given an opportunity to deal with them.”
The Court said the above applied equally to a Judge expressing a view in relation to the desirability for parents to come to parenting agreements.
Specifically in relation to parenting cases the Court said:
“Division 12A of the Act now underscores the same points by its stated principles and mandatory obligations cast upon judges when hearing parenting matters. … The proper encouragement by a judge to have parties agree is no more or less than the encouragement to do that which the Act contemplates and that which is consistent with the judge’s duties.”
Further, the Court said the same would apply to comments regarding a range of potential outcomes.
The Court analysed the mother’s conduct before, during and after the orders were made and found there was no coercion, duress or undue influence.
The surname issue was not determined by consent.
The mother’s grounds of appeal were somewhat vague with some examples being:
- [His Honour] “making irrational decisions and the reasoning is so flawed that it robs the decision of logic;
- Cases cited in the reasons are old/not in touch with modern times.
- Failing to consider relevant social science/research papers social science research;
- Failed to properly exercise the test in Chapman and Palmer.
The Court noted in exercising his discretion, His Honour took into account, among other things:
- That the children’s birth certificates contained the surname Darley in each case;
- Each of the parties confirmed that the children identify with the name “Darley”;
- His Honour found as a fact that the father is not likely to be capable of keeping his resentment from the children’s perception if their names were changed;
- His Honour found that “the mother was not able to confirm that she had ever met any relative with the surname ‘Mackenzie’”, nor was she able to name “any relative of hers with” that surname;
- The children’s birth certificates note the mother’s surname as “Darley”;
- The mother has used the surname “Darley” in relation to all official documentation including, for example, bank accounts, home loans, drivers licenses and school registration for the children, since the date of the marriage;
- The children have not at any stage been known by the surname “Mackenzie” and the mother has, at all times, been known as “Mrs Darley” to the children’s school;
- The children do not identify with the surname “Mackenzie”; their name is and always has been “Darley”;
- There is no evidence that the children have or will be likely to suffer discrimination at a Catholic school because of the fact that their surname may be different to the surname of their mother;
- There is no evidence that the children would suffer any embarrassment in the event that their surname is different to the surname of the mother.
The Court found each and all of the findings were open to his Honour on the evidence before him; and all of the matters considered by his Honour in the exercise of his discretion were relevant to the exercise of that discretion.
Notes compiled by Brisbane Family Law Specialists Pty Ltd t/as Hooper Family Lawyers are Brisbane Family Lawyers specialising in all aspects of family law and de facto relationship law.