Cooper and Oakley
[2012] FamCAFC 186
•9 November 2012
FAMILY COURT OF AUSTRALIA
| COOPER & OAKLEY | [2012] FamCAFC 186 |
| FAMILY LAW – APPEAL – Application to adduce further evidence – where the appellant sought to adduce further evidence – where the appellant had served an affidavit containing that evidence on the other parties – where, contrary to the Family Law Rules 2004, the appellant did not serve an application to adduce further evidence with that affidavit – where an application was served on the day of appeal hearing – where that application was not in the form prescribed by the Family Law Rules 2004 – where the evidence sought to be adduced was of a similar nature to that before the Federal Magistrate at first instance – application to adduce further evidence refused. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Ms Cooper |
| RESPONDENT: | Mr Oakley |
| INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
| FILE NUMBER: | BRC | 8588 | of | 2008 |
| APPEAL NUMBER: | NA | 8 | of | 2012 |
| DATE DELIVERED: | 9 November 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Thackray and Murphy JJ |
| HEARING DATE: | 9 November 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 December 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1422 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Edwards |
| SOLICITOR FOR THE APPELLANT: | Bradley Munt & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Shoebridge |
| SOLICITOR FOR THE RESPONDENT: | Stephens & Tozer Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lyons |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
Orders
The application to grant leave to adduce further evidence be refused.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cooper & Oakley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 8 of 2012
File Number: BRC 8588 of 2008
| Ms Cooper |
Appellant
And
| Mr Oakley |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Murphy J
At the commencement of the hearing of the appeal in this matter, an application was made to adduce further evidence by the appellant.
That application had been foreshadowed in an affidavit that had been forwarded to the solicitors for the respondent and the Independent Children’s Lawyer, such affidavit having been forwarded out of time. The affidavit was not accompanied by an application in accordance with the Family Law Rules 2004 (“the Rules”). Indeed, no such written application was received by the respondent father or the Independent Children’s Lawyer until today.
Leaving aside the formal requirements of the Rules and, in particular, those contained within r 22.39, the affidavit of the appellant and the affidavit of her instructing solicitor taken together do not, in my view, adduce any evidence by which this Court is persuaded that the discretion should be exercised (CDJ v VAJ (1998) 197 CLR 172).
I am not persuaded that the evidence sought to be adduced on behalf of the appellant meets the criteria referred to in that decision of the High Court or, indeed, the criteria of new evidence at all. It seems that the evidence consists of yet further allegations of precisely the same type examined by the Federal Magistrate in his Reasons.
For my part, I would dismiss the application.
Thackray J
I agree. I have nothing to add.
May J
I agree with the Reasons of Murphy J. I have nothing to add. The application to grant leave is refused.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray and Murphy JJ) delivered on 9 November 2012.
Associate:
Date: 13 November 2012
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