Cogger & Druce
[2022] FedCFamC1A 153
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Cogger & Druce [2022] FedCFamC1A 153
Appeal from: Cogger & Druce [2022] FedCFamC1F 405 Appeal number(s): NAA 145 of 2022 File number(s): BRC 4873 of 2020 Judgment of: ALDRIDGE J Date of judgment: 19 September 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adjourn the appeal hearing and amend the Notice of Appeal and Summary of Argument – Where it is not in the interests of justice to vacate the hearing date – Leave granted to amend appeal documents – Application otherwise dismissed. Number of paragraphs: 16 Date of hearing: 19 September 2022 Place: Sydney (via video link) Counsel for the Applicant: Mr Duplock Solicitor for the Applicant: O’Sullivans Counsel for the Respondent: Mr Galloway Solicitor for the Respondent: HCM Legal Counsel for the Independent Children’s Lawyer: Mr McGregor Solicitor for the Independent Children’s Lawyer: Aylward Game Solicitors ORDERS
NAA 145 of 2022
BRC 4873 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS COGGER
Applicant
AND: MR DRUCE
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
19 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Leave is granted to the appellant to file and serve an Amended Notice of Appeal and Amended Summary of Argument by 5.00 pm on Wednesday, 21 September 2022.
2.Leave is granted to the respondent and the Independent Children’s Lawyer to file and serve a Summary of Argument, or an Amended Summary of Argument, by 5.00 pm on Friday, 23 September 2022.
3.The costs of this application are to be the costs of the appeal.
4.The Application in an Appeal filed on 15 September 2022 is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cogger & Druce has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
This is an application by the appellant for an adjournment of an appeal which is currently listed for hearing on 28 September 2022. The basis of the application is that the appellant wishes to amend both her Notice of Appeal and her Summary of Argument in support.
The appeal is against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 3 June 2022 which had a significant impact. Her Honour ordered that the child, the subject of the proceedings, who was born in 2014, live with the respondent. Up until that time, the child had lived with the appellant. The respondent was given sole parental responsibility for the child and there was a limited and gradual reintroduction of the child to the appellant culminating in supervised time. The orders are therefore of some considerable significance.
A Notice of Appeal was filed on 1 July 2022 and the matter came before an appeal judicial registrar on 9 August 2022. The appellant was represented by counsel. A number of procedural orders were made, including an order providing for the filing of an Amended Notice of Appeal as well as Summaries of Argument. No Amended Notice of Appeal was filed, but on 30 August 2022, in accordance with the appeal judicial registrar’s directions, a Summary of Argument was filed, which was signed by the same counsel who appeared before the registrar on 9 August 2022.
It appears, however, from the affidavit of the appellant and the affidavit of her current instructing solicitor, that notwithstanding this, she continued to seek a grant of legal aid which was made on 17 August 2022, some 13 days before the Summary of Argument was filed.
The solicitor deposes that he found counsel willing to act on 7 September 2022, and that counsel is now briefed and an adjournment is sought, as I have said, to amend the Notice of Appeal and Summary of Argument.
For today’s purposes, the Court was provided with a document headed ‘a Notice of Appeal and Summary of Argument’ which seek to identify the new grounds of appeal and give some outline of what is meant by them. Thus, instead of eight detailed grounds of appeal, there are now but three. However both those documents were described a works in progress.
One matter of particular concern to me is that the affidavit of the appellant and the affidavit of her solicitor completely ignore the appearance of counsel before the appeal judicial registrar on 9 August 2022 and the subsequent filing of the Summary of Argument prepared by him. No one today was able to give me an explanation, firstly as to how that happened in light of the above chronology, or what the effect of that is for the present application.
In absence of such an explanation, I can only conclude that it is difficult to accept the appellant’s assertion in her affidavit that until the grant of legal aid was made she had limited legal representation.
It follows, therefore, that it must be found from the failure of counsel to amend the Notice of Appeal in accordance with the appeal judicial registrar’s order that he, and presumably the appellant, were satisfied with its form and it was addressed in the Summary of Argument. Obviously, the appellant now wishes to follow a different approach on appeal.
Whilst I accept it is in the interests of justice for an appellant to pursue an appeal as they see fit and advised, the interests of justice are a two way street.
In response to the Summary of Argument, the respondent to the appeal filed their own Summary of Argument on 13 September 2022. If that has to be significantly reconsidered, the cost and expense of preparing that summary will be largely wasted. Similarly, if the matter is adjourned, the fees that counsel and possibly solicitors have incurred for the hearing date will also be wasted.
The appellant is not in a position to meet any costs thrown away by reason of the appeal. Further, the respondent has an interest in the appeal being heard as promptly as possible. That conforms with the general public interest of bringing on appeals involving parenting orders as soon as properly can be done and the interests of justice more generally being done so that appeal dates are not wasted to the detriment of other litigants.
The appellant has had the benefit of legal advice. Taking that into account and the unexplained circumstance whereby she for some time seems to have two lawyers acting for each other doing different things, I am not satisfied that it is in the interests of justice to vacate the hearing date.
Counsel for the respondent very properly conceded that if he were to receive a Summary of Argument and Amended Notice of Appeal on Wednesday, 21 September 2022, he would be in a position to file a Summary of Argument in response by Friday, 23 September 2022. Counsel for the Independent Children’s Lawyer, who neither opposed nor consented to the application, took a similar course. In those circumstances, it seems to me that the interests of justice are well met by making orders of that kind.
Accordingly, I give leave to the appellant to file and serve an Amended Notice of Appeal and Amended Summary of Argument by close of business day on Wednesday, 21 September 2022 and I give leave to the respondent and the Independent Children’s Lawyer to file and serve an Amended Summary of Argument, or if they have not already done so, a Summary of Argument, by close of business day on Friday, 23 September 2022.
The costs of this application be the costs of the parties in the appeal.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 27 September 2022
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