Appellant Seeks to Reopen Appeal, Present New Evidence in Parenting Order Dispute
Cogger & Druce (No 2) [2023] FedCFamC1A 11 (16 February 2023)
The appellant is dissatisfied with the court's decision regarding parenting orders, which transitioned her child from her primary care to the respondent's sole care and responsibility. She filed an application to reopen the appeal, aiming to include previously excluded evidence and introduce new evidence that could potentially impact the trial and appeal outcomes.
Facts:
The appeal in question stems from final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on June 3, 2022. These orders provided for the parties' child to transition from the appellant's primary care to the respondent's sole care and sole parental responsibility, with the child spending supervised time with the appellant. A Notice of Appeal was filed by the appellant on July 1, 2022, containing eight grounds, many of which were incoherent, functioning more as a litany of complaints about the trial process and legal representation than as cogent arguments.
When the matter appeared before an appeal judicial registrar on August 9, 2022, an order was made requiring the appellant to file and serve an amended Notice of Appeal detailing clear errors of law or principle. The appeal was set for a hearing on September 28, 2022. Despite this order, the appellant failed to file the amended Notice of Appeal and instead filed an Application in an Appeal on September 15, 2022, seeking to adjourn the hearing and permission to file an Amended Notice of Appeal and Summary of Argument, citing her lack of legal knowledge and recent acquisition of legal aid representation.
On September 19, 2022, the application to adjourn the hearing was denied, but orders were made allowing the appellant to file an Amended Notice of Appeal and Summary of Argument by September 21, 2022. The appellant complied, reducing the grounds of appeal to three, which were unrelated to the original grounds. Both the respondent and the Independent Children's Lawyer filed responsive Summary of Argument documents, and the appeal proceeded as scheduled on September 28, 2022, with judgment reserved.
Issue:
The main issue in this case is the appellant's dissatisfaction with the final parenting orders made by the Federal Circuit and Family Court of Australia. The orders involved the child transitioning from the appellant's primary care to the respondent's sole care and sole parental responsibility, with the appellant having supervised time with the child.
Applicable law:
Baghti & Baghti and Ors (No 2) [2014] FamCAFC 204 - provides that 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."
Analysis:
The appellant filed an application to reopen the appeal and submitted a comprehensive affidavit in support, which included numerous annexures. Key points from the affidavit include:
a) The appellant became self-represented due to financial constraints.
b) The appellant wished to include previously excluded evidence from the trial record.
c) New evidence emerged since the appeal that could have impacted both the trial and appeal outcomes, including subpoenaed documents.
d) The appellant sought to rely on grounds from the original Notice of Appeal filed on July 1, 2022, specifically grounds 1, 2, 6, 7, and 8.
The affidavit mainly contained the appellant's submissions for a potential re-hearing of the appeal and further evidence she wanted to introduce. The Application in an Appeal was heard by a judge on November 17, 2022, and orders were made for written submissions, with the application to be determined in chambers based on the submitted documents.
Conclusion:
The application filed on November 7, 2022, in an appeal was dismissed, and the respondent's costs associated with this application were reserved for the appeal.
Case: Cogger & Druce [2022] FedCFamC1F 405
Judgment of: ALDRIDGE, KARI & BRASCH JJ
Counsels:
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
