If you’re involved in a family law dispute and considering an appeal, it’s important to know that bringing new evidence at this stage is extremely limited. An appeal isn’t a second chance to present your case differently.
A recent decision of the Federal Circuit and Family Court of Australia offers timely guidance on the narrow and carefully controlled discretion to introduce further evidence on appeal. The case sets out the Court’s approach for allowing new evidence and the high standard that must be met.
Case summary
The original proceedings involved both parenting and property matters, whereby various orders were made by consent between the parties.
The appellant submitted two applications: the first sought to introduce into evidence a report which was available to the appellant at the time of the trial but was not presented; the second sought to introduce a new second report - relating to alleged post-judgment conduct by the respondent.
In relation to the first application, the Court commented that:
The Court reaffirmed that appellate proceedings are not a forum for re-litigation or fact-finding in the ordinary sense. Rather, they are confined to legal error unless a compelling justification exists for further evidentiary expansion.
The Court noted that appeals from discretionary judgments require proof of error, not simply disagreement with the primary judge's decision.
The Court made further comment in relation to the orders the applicant was seeking to appeal, noting:
The appellant was wholly unsuccessful in both applications, and a modest costs order was made against the appellant.
The legal framework
The appellate jurisdiction of the Federal Circuit and Family Court of Australia retains discretion to admit further evidence where:
- the evidence is relevant to the grounds of appeal,
- it was not reasonably accessible or available at the time of the trial, and
- the evidence is in the interests of justice to admit.
Key considerations
This decision underscores three key considerations for family law proceedings and litigation in general:
- Precision: general assertions or speculative claims will not suffice, detail is required in setting out the evidence, its relevance to the appeal, and why it was not previously available.
- The Court’s discretion is not exercised lightly: evidence that could have been adduced at trial, even if difficult or inconvenient to obtain, is unlikely to be admitted on appeal.
- Caution: The appellate division is slow to disturb findings of fact, particularly where the trial judge had the benefit of in-person assessments of credibility and nuance.
Key takeaway
This decision reinforces the limited scope for admitting fresh evidence on appeal in family law matters. It reflects the broader judicial philosophy that finality of litigation and procedural fairness should not be easily displaced by post-trial evidentiary manoeuvring.
The case highlights the importance of rigorously assessing the admissibility and utility of new evidence before seeking to rely on it. Where such evidence is central to the appeal, it must be presented with precision, promptness, and a clear articulation of its legal necessity.
