COUSINS & PEAKE

[2019] FamCA 94

FAMILY COURT OF AUSTRALIA

COUSINS & PEAKE [2019] FamCA 94

FAMILY LAW – CONTRAVENTION – where the mother is directed to enter into a bond but declines to do so – monetary penalty applied.

FAMILY LAW – STAY OF ORDERS – where the mother appeals – where there is no evidence or submission that justifies a stay pending appeal.

Family Law Act 1975 (Cth)

House v The King [1936] HCA 40; (1936) 55 CLR 499

APPLICANT: Mr Cousins

RESPONDENT: Ms Peake

FILE NUMBER: MLC 4941 of 2014

DATE DELIVERED: 8 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 February 2019

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. Pursuant to s 70NEB(1)(da) of the Family Law Act 1975 (Cth), Ms Peake is fined two penalty units.

2. The payment of the said penalty is stayed to 30 June 2019.

3. The application in a case filed 12 December 2018 is dismissed.

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

And

Ms Peake

REASONS FOR JUDGMENT

1. By her application in a case filed on 12 December 2018, the applicant seeks that all orders be stayed.  The difficulty with that application, of course, is that the orders of 12 December include, for example a stay of the orders of Bennett J.  Accordingly, I would be being asked to stay the orders that I previously made.

2. The issue here is the contravention finding that led to the order that I made on 7 December, requiring Ms Peake to enter into a bond.  I am satisfied she understood what a bond was, and I set time limits for the execution of the bond.  She has declined to enter into that bond.  The operative order today is that, having rejected the opportunity to enter into a bond, and having me previously rejected any other possible option under the Act, I was left with no option other than to impose a monetary penalty.

3. The provisions in the Act provide a maximum penalty for this case of 10 penalty units, which is approximately $2100.  Having regard to her financial position, as a student, living effectively on Centrelink benefits, she has minimal income, and she has no property, because she is currently an undischarged bankrupt.  That is not a basis to ignore the fact that the contravention has been found to have been proved.  I gave her an opportunity to avoid the prospect of any other form of inconvenience by way of a penalty, and she has rejected all.

4. The only penalty left is a penalty which recognises the fact that people cannot simply ignore Court orders.  Taking into account her financial position, I impose a penalty of two penalty units, which I stay until 30 June 2019.

5. Returning, then, to the application in relation to the stay of all orders, in reality, the only order that is of any significance is the order that I have just made.  A Court does not grant lightly a stay of its orders, and the onus rests with Ms Peake to establish that it is appropriate in the circumstances to stay the orders’ operation.

6. The Rules of the Court do not set out what sort of things are relevant in determining that stay, and I have had no assistance from Ms Peake.  Other than she says that it would be unfair for the Court to impose the penalty, she is disputing not only the fairness of the hearing, but also the finding that she had breached the order.  With respect, all of those submissions are misguided; it is the orders that are to be appealed.

7. The authorities, have indicated that some of the considerations include whether refusing a stay would render her appeal nugatory.  There is nothing in this case that would indicate that that is the case.

8. There is also the question of the entitlement of the other party to the fruits of their judgment at first instance:  in this case, Mr Cousins.  The parties have been before the Court on a number of occasions, and it is time for this case to be brought to a head.  Mr Cousins is entitled to know that he was successful in his application, and until such time as an appeal court sets that aside, the decision should stand.  In my view, he is entitled to walk away today knowing that his position was accepted.

9. The Court is also obliged to consider the merits of the appeal.  A notice of appeal, in this case, has been placed on the Court file, and, with respect to Ms Peake, it is what I could only describe (and I do not mean this in a pejorative sense) a stream of consciousness.  I have no understanding of what the grounds are going to be that are ultimately be argued, and to the extent that the grounds are pleaded in the Notice of Appeal, no doubt, they will have to be amended prior to any appeal.

10. It is difficult for me, therefore, particularly as the trial judge, to make any comment as to whether or not the appeal has merit;  but, bearing in mind that the contravention hearing culminated in a finding of fact of a discretionary nature based on the evidence, it is hard for me to see how the appellant, or the applicant in this case, can succeed, bearing in mind the principles of the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499.

11. In my view, the merits of the appeal are doubtful, which is not what I previously indicated in respect of the hearing relating to the stay concerning Bennett Js orders, and I do not intend to repeat what I said there.  In this case, the situation seems to me to be entirely different.

12. There has been no delay, in this case, in seeking the stay; and in that sense, the appellant/applicant cannot be criticised.  I am told that the appeal is to be heard either in March or June; but that presumably will depend upon whether or not the applicant provides proper grounds for appeal, other than the ones that I currently read.  In my view, the appeal is not likely to be far away, but that is that is just another factor for me to take into account in the exercise of my discretion.

13. The primary basis upon which I refuse a stay here is that such refusal would not render the appeal nugatory, and, to the extent that my determination in December was wrong, and the order today inappropriate, no doubt, the appeal court can rectify that situation without any prejudice to Ms Peake.  The application, therefore, is refused, and the application in a case filed 12 December 2018 is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 February 2019.

Associate: 

Date:  27 February 2019