Cogger & Druce (No 2)
[2023] FedCFamC1A 11
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Cogger & Druce (No 2) [2023] FedCFamC1A 11
Appeal from: Cogger & Druce [2022] FedCFamC1F 405 Appeal number(s): NAA 145 of 2022 File number(s): BRC 4873 of 2020 Judgment of: ALDRIDGE, KARI & BRASCH JJ Date of judgment: 16 February 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to reopen the appeal and adduce further evidence – Where the Full Court had heard the appeal and judgment was reserved – Where the applicant seeks to rely on the grounds of appeal originally contended and abandoned – Application dismissed – Costs reserved. Legislation: Family Law Act 1975 (Cth) s 117(2) Cases cited: Baghti & Baghti and Ors (No 2) [2014] FamCAFC 204
Cogger & Druce [2022] FedCFamC1A 153
Number of paragraphs: 31 Date of hearing: By way of written submissions Place: In Chambers The Applicant: Self-represented litigant 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, KARI & BRASCH JJ
DATE OF ORDER:
16 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 7 November 2022 be dismissed.
2.The costs of the respondent to this application be reserved to the appeal.
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 (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, KARI & BRASCH JJ:
Introduction
Before the Court is an Application in an Appeal filed by the appellant on 7 November 2022.
By that application the appellant seeks two orders:
1.The Appeal to be Reopened.
2.An extension of time to seek leave of the Full Court to adduce further evidence in the appeal.
The application is supported by an affidavit of the appellant also filed 7 November 2022 together with a separate document identified as “Annexure 2 of Affidavit sworn 7 November 2022”.
For the reasons that follow the Application in an Appeal is to be dismissed.
Background
To understand the Application in an Appeal, more needs to be understood about the procedural history of the appeal.
The appeal is an appeal from final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 3 June 2022.
The final parenting order that was made essentially provided for the parties’ child (born in 2014) to immediately transition from the appellant’s primary care to the respondent’s sole care and that the respondent have sole parental responsibility. Additionally, the final orders provided for the child to spend time with the appellant on a supervised basis into the future.
A Notice of Appeal was filed by the appellant on 1 July 2022. There were eight separate grounds of appeal set out in that document. Each of the grounds of appeal were lengthy and many contained several sub-grounds. For the most part, the grounds of appeal were not coherent, cogent or arguable. Rather the grounds read as a litany of complaints about the trial process, the primary judge, and the appellant’s legal representation. Illustrative of this observation is that the grounds of appeal ran to six pages of tightly worded prose.
Further illustrating this observation is that when the matter came before an appeal judicial registrar on 9 August 2022 an order was made requiring the appellant to “file and serve an amended Notice of Appeal by 4.00 pm on Tuesday 30 August 2022 which details at Part E in succinct numbered grounds of appeal the error/s of law or principle asserted” (Order 1).
By those same orders made on 9 August 2022, the appeal was set down for hearing on 28 September 2022.
The appellant did not comply with the order for the filing of an Amended Notice of Appeal.
On 15 September 2022, the appellant filed an Application in an Appeal in which orders were sought in the first instance to adjourn the hearing of the appeal and additionally permitting the appellant to file an Amended Notice of Appeal and Summary of Argument.
In support of that application the appellant filed an affidavit in which she deposed that the reason for her application was because she had commenced the appeal at a time when she had been self-represented, but had more recently obtained legal representation pursuant to a grant of legal aid obtained on 17 August 2022. The appellant went on to depose that when she commenced the appeal she had “very little knowledge of the law” and that she had “tried the best [she] could to provide this Honourable Court the grounds which [she] wanted to appeal”.[1] She further deposed that she now wished to take legal advice and wished to amend her Notice of Appeal, Summary of Argument and List of Authorities, all of which she had already filed by that stage.
[1] Appellant’s affidavit filed 15 September 2022, paragraph 15.
That application was heard and determined on 19 September 2022 (Cogger & Druce [2022] FedCFamC1A 153). While the application to adjourn the hearing of the appeal was not successful, orders were made permitting the appellant to file an Amended Notice of Appeal and Summary of Argument by 5.00 pm on 21 September 2022. Consequential orders were also made permitting both the Independent Children’s Lawyer (“ICL”) and the respondent to file a responsive Summary of Argument on 23 September 2022, noting that at that stage the respondent had already filed his Summary of Argument and was thus permitted to file an Amended Summary of Argument.
The appellant duly filed her Amended Notice of Appeal on 21 September 2022, together with a Further Summary of Argument. By the Amended Notice of Appeal, the grounds of appeal were reduced to three grounds which bore no resemblance to the grounds of appeal originally contended.
Each the respondent and the ICL filed a Summary of Argument which was responsive to the appellant’s Amended Notice of Appeal.
The appeal was heard as scheduled on 28 September 2022, with the judgment of the Court reserved.
The application to reopen the appeal and adduce further evidence
As previously identified, it was on 7 November 2022 that the appellant filed the application to reopen the appeal.
In support of the application, the appellant filed a lengthy affidavit which included voluminous annexures, one of which was a separate affidavit of 89 pages identified as the affidavit that the appellant wished to file in the event that the appeal was reopened and leave was given to file further evidence.
Significantly, in the affidavit filed in support of the application, the appellant variously set out:
(a)She was now self-represented as she did not have the “financial capacity for any further legal representation” (at [3]).
(b)She wished to rely on further evidence “previously improperly excluded from the trial record” (at [4]).
(c)She considered that new evidence had come to light since the appeal which would have impacted the outcome of both the trial and the appeal (at [5]). That evidence is identified under the heading “Further Evidence that May be Sought by the Court” and included the issuing of subpoena to obtain documents (at [74]–[77]).
(d)She wished to “rely on grounds previously put to the Appeal Court, and hone in on particular material errors” (at [7]); identifying the grounds now sought to be relied upon as those contained in the original Notice of Appeal filed on 1 July 2022, and in particular grounds 1,2,6,7 and 8 (at [33]).
The balance of the affidavit does not appear to set out any evidence in support of the application. Rather it contains the appellant’s submissions in support of any re-hearing of the appeal together with further evidence that the appellant wishes to adduce in the appeal, both of which are in support of those grounds of appeal that she now seeks to agitate.
The Application in an Appeal came before a judge on 17 November 2022. On that day, orders were made for the filing of written submissions with a view to the Application in an Appeal being heard and determined in chambers on the papers.
Discussion
The application to reopen the appeal can be dealt with in very short compass.
As identified in Baghti & Baghti and Ors (No 2) [2014] FamCAFC 204 at [15]:
15.In the context of applications to reopen an unperfected judgment or order, it has long been held that “the jurisdiction is not to be exercised for the purposes of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put” (Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300, per Mason CJ at 303).
With that in mind, the insurmountable hurdle for the appellant, against the procedural background we have recited, is that she now seeks to reopen the appeal with a view to abandoning the grounds of appeal that were relied on and argued at the hearing of the appeal on 28 September 2022 and to replace them with some of the grounds of appeal she had originally contended and abandoned.
As noted earlier, there are significant shortcomings in the grounds of appeal which the appellant now seeks to propound. They do not cover the same ground as those that were argued at the hearing of the appeal. If the application was granted the appeal would, in effect, need to start again with further submissions from the respondent and the ICL, and a further hearing. That would be unfair to the respondent and the ICL who would also incur further costs. There is no suggestion that the appellant is in a position to reimburse them for the extra costs involved.
It is difficult to see how any of the original grounds would have any reasonable prospect of success – a position recognised by the appellant herself when she abandoned them.
In all of the circumstances that we have referred to, we do not consider that the appellant has advanced any basis to reopen the appeal.
In circumstances where we are of the view that the application to reopen the appeal fails, and because the application to adduce further evidence is in support of those grounds of appeal that the appellant now wishes to argue, it follows that there should be no extension of time granted for the appellant to file an application to lead further evidence in the appeal.
Conclusion and costs
For all of the reasons we have given, the Application in an Appeal is to be dismissed.
The respondent has sought an order for costs in the event that the application was dismissed. While we accept that with reference to those factors contained in s 117(2) of the Family Law Act 1975 (Cth) the appellant has been wholly unsuccessful in this application, we consider it appropriate to reserve any consideration of the costs of this application to the disposition of the appeal.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Kari & Brasch. Associate:
Dated: 16 February 2023
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