Cousins and Peake (No 2) - [2018] FamCA 729

FAMILY COURT OF AUSTRALIA

COUSINS & PEAKE (NO 2)

[2018] FamCA 729

FAMILY LAW – STAY PENDING APPEAL – interim parenting decision.
FAMILY LAW – CASE MANAGEMENT – a number of outstanding applications.
FAMILY LAW – COURTS AND JUDGES – Recusal of judicial officer.

APPLICANT:

Mr Cousins

RESPONDENT:

Ms Peake

INDEPENDENT CHILDREN’S LAWYER:

Ms Ham

FILE NUMBER:

MLC

4941

2014

DATE DELIVERED:

29 August 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

29 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No Appearance

SOLICITOR FOR THE APPLICANT:

THE RESPONDENT:

In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Southern Family Law

Orders

I refer this matter to the Case Management Judge, to be fixed before another Judge on the issue of the mother’s application for the stay of my orders made on 31 July 2018.
I recuse myself from further dealing with this matter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cousins & Peake has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4941 of 2014

Mr Cousins

Applicant

And

Ms Peake

Respondent

AND

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

REVISED FROM EX-TEMPORE

Introduction

This matter comes before me as an urgent matter initiated by the mother’s application in a case filed on 7 August 2018 (“the mother’s application”) and her amended application filed today (“the mother’s amended application”).
The mother appears in person.
The father does not appear. At 6:48 am today the father sent an email to the Melbourne Case Co-ordinators stating[1] “I won’t be able to attend the hearing today as I have interstate travel for work. I note that [Ms Peake] only served me with her amended application at 11:55 p.m. last night”. The mother’s amended application is stamped as having been lodged on the Portal at 11.50 p.m. last night and, by operation of Rule 25.05(2) of the Family Law Rules 2004, is taken to have been filed today. The mother assures me that the father was punctually served with the application filed 7 August 2018 so I accept that the father has adequate notice of orders sought in the mother’s application filed 7 August 2018. No request been received from the father to appear by electronic means.
[1] Exhibit “C4”
Ms Kristy Hams, solicitor, appeared in her capacity as newly appointed independent children’s lawyer without having had an opportunity to familiarise herself with the matter.
In the result,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cousins and Peake (No 2)

Details

AGLC: Cousins and Peake (No 2) [2018] FamCA 729
Case: [2018] FamCA 729
Decision Date: 29 August 2018

CaseChat Overview and Summary

In the matter of *Cousins and Peake (No 2)*, Bennett J of the Family Court of Australia considered an application by the mother for a stay of orders previously made by the Court on 31 July 2018. The specific nature of the dispute between the parties, beyond the mother's application for a stay, is not detailed in the provided text.

The central legal issue before Bennett J was whether to grant the mother's application for a stay of the existing orders. This required the Court to consider the grounds upon which a stay might be granted and the merits of the mother's case in seeking such relief.

Ultimately, Bennett J determined that it was appropriate to recuse himself from further dealing with the matter. Consequently, the Judge referred the application for the stay of orders to the Case Management Judge, with the direction that it be fixed before another Judge. The formal orders reflect this decision, indicating that the mother's application for a stay will be heard by a different judicial officer.

Orders

Orders of the court

I refer this matter to the Case Management Judge, to be fixed before another Judge on the issue of the mother’s application for the stay of my orders made on 31 July 2018.

I recuse myself from further dealing with this matter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.