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FATHER SEEKS TO REOPEN CASE DUE TO INCOMPETENCE OF HIS FORMER COUNSEL

This case is about a father which seeks to reopen a case due to the incompetence of his former counsel and introduce new evidence on  

Khadem & Penk [2020] FamCAFC 211; (27 August 2020) 

Facts:  

Counsel for the father sought to reopen case recalling the mother, the Family Consultant and the child’s psychotherapist and cross examining them again. It was the father’s position that his former counsel had failed to comply with the father’s instructions as to how cross-examination of those three witnesses was to take place. The father also sought that he give further evidence by way of examination about an incident on 23 February 2015 and the text messages that had passed between the parties at that time. 

Issue:  

  1. Whether or not the alleged incompetence of the counsel of the father during cross-examination is a sufficient cause to reopen the case 
  2. Whether or not the father may adduce receive further evidence on appeal 

Legal Basis:  

  • The Full Court in OP v TP (Conduct of Counsel)  [2002] FamCA  1155;  (2002) 30 Fam LR 281 at [124] stated: 

 ...from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made. 

  • Section 93A(2) of the Act provides for a discretion in an appeal for the Court to receive further evidence upon questions of fact. 
  • Rules 1.10 and 10.12(d) of the Family Law Rules 2004 (Cth), allow this Court to make an order on its own initiative in circumstances where an application has no reasonable likelihood of success. 

Analysis: 

1. the father must be able to establish on appeal not only the decisions were wrong or incompetent, but their effect was likely to have brought about a different result if they had not been made. The father did not assert what difference the further cross-examination of the witnesses (on issues already canvassed) would have made to the outcome of the case. 

2. On the face of the father’s application and his affidavit evidence in support, the criteria for admission of further evidence on appeal is not met. Taken at its highest, we are of the view that the further evidence, if accepted, would not demonstrate that the orders under appeal are erroneous. We are not satisfied that had this evidence been available it would have produced a different result. 

Conclusion: 

Further examination of the witnesses and additional evidence will unlikely change the result of the case. Hence, the appeal shall be dismissed. 

 

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