The Family Court has considered the position of what happens when critical evidence – in this case – a recording of a virtual hearing – has been lost.

The case is extremely important for two reasons:

• The ability to produce (admissible) evidence to support or negate an argument or fact is a cornerstone of a just and fair legal system.
• In a world where so much of the Court process was and is virtual (a biproduct of the COVID lockdowns), there is a risk of data loss that even the best systems are not immune to. There are likely to be other cases where record of proceedings are lost.

In this case (an appeal on a parenting order matter), the appellant set out a number of significant challenges that were based upon oral evidence given at trial. The appellant claimed that since the hearing was conducted virtually and the record of the proceedings had been irretrievably lost, that the proceedings should be remitted for a rehearing.

McClelland DCJ, Tree J and Gill J were of the opinion that an accurate recording of proceedings is a fundamental and invariable part of the Court’s process. Additionally, s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) obliges the appeal Court to have regard to the evidence given at first instance in the proceedings out of which the appeal arose.

Accordingly, it was held that the availability of the record is implicit to the exercise of the appeal jurisdiction. The court held that:

“Depriving this Court of the capacity to assess the evidence, where it is necessary to do so to address the issues on appeal, strikes at the function of the Court, given the essential nature of the recording at first instance in discharging the functions set out in ss 35 and 36 of the FCFCOA Act”

Because this appeal concerned to a substantial degree, challenges to the use to which the oral evidence was applied, and how or whether regard was had to it, the result in this instance was to set aside the judgement and remit for a further hearing.

The court also noted that this outcome is not applicable to every appeal where there is an absence of evidence from first instance, as it would not be necessary to allow for an appeal if it does not concern the missing evidence.