Cousins & Peake (No 2)

In the matter of Cousins & Peake (No 2), the Federal Circuit and Family Court of Australia (Division 2) delivered a judgment on 2 December 2022. The case involved three applications for contempt filed by Ms Peake against Mr Cousins, which were dismissed by the Court. Ms Peake also filed an application against Mrs Cousins for failure to comply with a subpoena, which was similarly unsuccessful. The Court further considered applications for costs by Mr Cousins and the Independent Children's Lawyer, both of which were successful. The Court found that Ms Peake had not established a prima facie case for any of the contempt applications, as the alleged conduct did not constitute interference with the administration of justice or contumacious defiance of court orders. Additionally, the Court found that the circumstances justified awarding costs to Mr Cousins and the Independent Children's Lawyer, despite Ms Peake's financial circumstances as a student.

In its judgment, the Court outlined the legal principles regarding contempt applications and the criteria for making orders for costs. The Court emphasised that contempt applications are serious matters that require proof beyond reasonable doubt and that contempt must involve an interference with the administration of justice or defiance of court orders. The Court found that Ms Peake's allegations did not meet these criteria, as the matters complained of had already been subject to judicial determination, and other remedies were available to Ms Peake to address her concerns.

Regarding the costs applications, the Court noted that while each party generally bears their own costs, the Court has discretion to order costs if circumstances justify it. The Court found that the circumstances in this case justified awarding costs to Mr Cousins and the Independent Children's Lawyer, as Ms Peake's applications were wholly unsuccessful and had caused unnecessary delay in the determination of other pending applications. The Court fixed the costs at scale for Mr Cousins and at a sum less than scale for the Independent Children's Lawyer, based on the actual costs incurred.