Cousins & Peake (No 2) - [2022] FedCFamC2F 1660

Federal Circuit and Family Court of Australia
(DIVISION 2)
Cousins & Peake (No 2) [2022] FedCFamC2F 1660

File number(s): MLC 4941 of 2014

Judgment of: JUDGE GLASS

Date of judgment: 2 December 2022

Catchwords:
FAMILY LAW – CONTEMPT APPLICATIONS – where there is no prima facie case – applications dismissed

FAMILY LAW – COSTS – where the circumstances justify orders for costs in favour of the Respondent and the Independent Children’s Lawyer

Legislation:
Family Law Act 1975 (Cth) ss 102NA, 112AP(1)(a), 112AD, 117(1), 117(2), 121, 121(9)

Federal Circuit Court Rules 2001 (Cth) r l5A.l6, 16A.16

Cases cited:
DAI & DAA (2005) FLC 93-215

De Roma & De Roma [2013] FamCA 566

Ibbotson & Wincen (1994) FLC 92-496

Kramer & Another & Ward (2017) FLC 93-817

Lenova & Lenova (Costs) [2011] FamCAFC 141

M & M (1990) FLC 92-106

Mallory & Mallory [2020] FamCAFC 62

Medlow & Medlow (2017) FLC 93-796

Peda & Feaster & Anor (2019) FLC 93-890

Re JJT & Ors; ex parte Victoria Legal Aid (1998) 195 CLR 184

Redmond & Redmond & Ors (2013) FLC 93-557

Sahari & Sahari (1976) FLC 90-086

Stradford & Stradford (2019) FLC 93-888

Tate & Tate (2002) FLC 93-107

Witham & Holloway (1995) 183 CLR 525

Zamir & Zamir [2022] FedCFamC1A 193

Division: Division 2 Family Law

Number of paragraphs: 40

Date of last submission/s: 28 November 2022

Date of hearing: 28 November 2022

Place: Melbourne

Counsel for the Applicant: Ms Wiener

Solicitor for the Applicant: Brendan Rothschild Legal Group

Counsel for the Respondent: Ms Teicher

Solicitor for the Respondent: PFJS Lawyers

Counsel for the Independent Children's Lawyer: Mr Heggie

Solicitor for the Independent Children's Lawyer: Southern Family Law
ORDERS

MLC 4941 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PEAKE

Applicant

AND:
MR COUSINS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE GLASS

DATE OF ORDER:

28 November 2022

THE COURT ORDERS THAT:
1.The Applicant’s Contempt Applications filed on 20 December 2018, 3 July 2019 and 1 July 2022, be dismissed.
2.The Applicant pay the Respondent’s costs fixed in the sum of $8,557.50.
3.The Applicant pay the Independent Children’s Lawyer costs fixed in the sum of $3,329.00.
4.Payments referred to in paragraphs 2 and 3 herewith, be stayed for a period of 60 days from the date of these Orders.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by…

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 & Peake (No 2)

Details

AGLC: Cousins & Peake (No 2) [2022] FedCFamC2F 1660
Case: [2022] FedCFamC2F 1660
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Peake brought three contempt applications against Mr Cousins and Mrs Cousins. The applications were dismissed by Judge Glass, and Ms Peake was ordered to pay costs to Mr Cousins and the Independent Children's Lawyer. The Court found that Ms Peake had not established a prima facie case in relation to any of the allegations of contempt. The Court concluded that Ms Peake's complaints related to matters that had been subject to judicial determination and that she had other means available to address her concerns about Mr Cousins' disclosure. The Court also found that Ms Peake had not elucidated how the alleged conduct interfered with or undermined the authority, performance or dignity of the courts of justice or those who participated in their proceedings. The Court held that the availability of well-established means by which Ms Peake could have addressed her concerns about Mr Cousins' disclosure meant that the Court's authority, performance and dignity were preserved.

The Court also found that the circumstances justified an order for costs in favour of Mr Cousins and the Independent Children's Lawyer. Ms Peake had been wholly unsuccessful in the proceedings, and her pursuit of the unmeritorious applications had delayed the determination of outstanding applications for parenting orders. The Independent Children's Lawyer had also been put to the expense of participating in proceedings that were unsuccessful and should not have been prosecuted. The Court fixed Mr Cousins' costs at scale and the Independent Children's Lawyer's costs at a sum less than scale, being the actual costs incurred. The payments were to be stayed for a period of 60 days from the date of the orders.

Orders