Cousins & Peake (No 3)
[2023] FedCFamC2F 925
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cousins & Peake (No 3) [2023] FedCFamC2F 925
File number(s): MLC 4941 of 2014 Judgment of: JUDGE GLASS Date of judgment: 31 July 2023 Catchwords: FAMILY LAW – PARENTING – where agreement was reached as to the allocation of parental responsibility and children’s living arrangements – where parties’ older child spends no time with his mother – amount of time the younger child should spend with his mother - regulation of mother’s interactions with children’s schools – whether father’s sole parental responsibility for the children should be fettered.
FAMILY LAW – VEXATIOUS PROCEEDINGS ORDERS – mother has frequently instituted and conducted vexatious proceedings – order made.
Legislation: Australian Passports Act 2005 s 11
Family Law Act 1975 (Cth) ss 60CC, 60B, 60CA, 61DA, 65DAC, 102Q 102QB, 102QE, 102NA
Federal Circuit and Family Court of Australia Rules 2021 r 5.0
Cases cited: Agambar & Agambar [2021] FedCFamC1A 1
Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256
Carter & Wilson (2023) FedCFamC1A 9
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Grier & Grier (2023) FLC 93-135
Keskin & Keskin & Anor (2019) FLC 93-932
Maclean & Greenwood (2022) FedCFamC1A 200
Manifold & Alderton (2021) FLC 94-015
Mazorski & Albright (2007) 37 Fam LR 518
McCall v Clark (2009) FLC 93-405
Muldoon & Carlyle (2012) FLC 93-513
Mulvaney & Lane (2009) FLC 93-404
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Oram & Lambert (2019) FLC 93-886
Peake & Cousins (No 2) [2018] FamCA 1056
Pencious & Searle (2017) FLC 93-805
Potier v Attorney General (NSW) (2015) 89 NSWLR 284
Reeves & Grinter [2017] FamCAFC 19
Rogers v The Queen (1994) 181 CLR 251
SCVG (2020) FLC 93-967
Tibb & Sheean (2018) 58 Fam LR 351
Division: Division 2 Family Law Number of paragraphs: 171 Date of last submission/s: 25 July 2023 Date of hearing: 17-20, 25 July 2023 Place: Melbourne Solicitor for the Applicant: Self-Represented Litigant Counsel for the Respondent: Mr Eidelson Solicitor for the Respondent: MacGregor Solicitors 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:
31 JULY 2023
THE COURT ORDERS THAT:
1.All previous parenting orders in relation to the children X born in 2008 and Y born in 2010 (collectively, “the children”) be and are hereby discharged.
2.The Father have sole parental responsibility for the children.
3.The children live with the Father.
4.The child X born in 2008 (“X”) spend time and communicate with the Mother in accordance with his wishes.
5.The child Y born in 2010 (“Y”) spend time and communicate with the Mother:
(a)on each alternate weekend from the conclusion of school on Friday (or 4pm if a non school day) until 4pm on Sunday;
(b)from 4pm on Christmas Eve until 4pm on Christmas Day in 2023 and each odd numbered year thereafter;
(c)from 4pm on Christmas Day until 4pm on Boxing Day in 2024 and each even numbered year thereafter;
(d)with Y at liberty to telephone the Mother at any reasonable time using the existing private mobile phone that has been provided to Y by his Mother; and
(e)as otherwise agreed between the parties in writing.
6.The children’s time with the Mother be suspended to facilitate Y spending time with the Father as follows:
(a)from 4pm on Christmas Day until 4pm on Boxing Day in 2023 and each odd numbered year thereafter; and
(b)from 4pm on Christmas Eve until 4pm on Christmas Day in 2024 and each even numbered year thereafter.
7.Unless otherwise agreed by the parties in writing, where changeover does not occur at Y’s school, it will occur at the McDonalds at E Street, Suburb F.
8.The Father be at liberty to suspend Y’s time with the Mother for no more than two weekends per calendar year for the purpose of interstate or overseas travel provided that the following conditions are met:
(a)the proposed weekends to be suspended fall within school holiday periods; and
(b)the Father provides the Mother with 60 days’ written notice of the proposed suspension of time.
9.Within 7 days of the conclusion of any period of travel involving the exercise of Order 8:
(a)the Father provide the Mother with no less than two options for make-up time with Y;
(b)the Mother provide her written response within a further 7 days; and
(c)if one of the proposed options is accepted, the Father do all acts and things to facilitate Y’s make-up time with the Mother.
10.Save for in the event of an emergency, the parents use email as their primary means of
communication concerning the children.
11.The Father do all acts and things to:
(a)ensure the children are engaged with a suitably qualified child psychologist/therapist for ongoing emotional and psychological support on a non-reportable basis; and
(b)forthwith inform the Mother of any serious health issues, serious injuries or hospitalisations of the children or either of them.
12.The parents be and are authorised by these Orders to:
(a)receive copies of the children’s school reports, school photos and any other formal notice or communication from the children’s schools at their own expense, if any;
(b)have access to Compass or other like platforms concerning the children to which parents ordinarily have access;
(c)attend Y’s school events to which parents are ordinarily invited at their own expense, if any; and
(d)request reports on the children’s progress from any medical practitioner treating the children at their own expense, if any, with such request to be made no more than every 90 days save for in the event of an emergency.
13.The parents be and are hereby restrained from:
(a)denigrating the other parent or any member of their family and/or household in the presence of hearing of the children, or permitting any other person to do so;
(b)denigrating the children or either of them;
(c)involving the children in any disputes between the parents; and
(d)contacting any employer of the other parent, family member of the other parent, school or extra curricular activity provider attended by the children or either of them to denigrate the other party (including via social media).
14.The Mother be and is hereby restrained from:
(a)participating in the children’s psychological/therapy sessions unless she is specifically requested to do so in writing by the children’s psychologist/therapist in consultation with the children;
(b)contacting or liaising with the children’s treating medical practitioners (other than as provided for in Order 12(d), unless she is specifically requested to do so by the children’s treating practitioners;
(c)engaging the children with any alternate medical or allied health professionals save for those nominated by the Father;
(d)save for in the event of an emergency, sending more than one message to the Father via email per fortnight concerning the children; and
(e)save for in the event of an emergency, sending more than one email per fortnight to the children’s schools and/or extra-curricular activity providers (or either of them) NOTING THAT for the purpose of this restraint, an email to teachers and/or employees at the children’s school and/or extra-activity providers constitutes an email to the children’s school and/or extra-curricular activity providers.
15.Upon no less than 15 days’ written notice from the Father, the Mother do all acts and things and sign all documents to facilitate the children or either of them applying for Australian passports NOTING THAT pursuant to s11(1)(a) of the Australian Passports Act 2005 only the Father’s consent is required for such passport to be issued.
16.The Father be permitted to take the children or either of them outside of the Commonwealth of Australia only for the purpose of holidays during the children’s time with him upon providing the Mother with no less than 30 days’ written notice of same, including with details of the proposed destination country and itinerary.
17.The Father do all acts and things to provide a copy of these Orders to the children’s schools within 7 days of the date of these Orders and/or within 7 days of the children’s commencement at any new school.
18.The Father do all acts and things to provide a copy of these Orders and the Family Report of Court Child Expert Ms J dated 6 July 2023 to the children’s treating General Practitioner within 7 days of the date of these Orders and thereafter be at liberty to provide copies of same to any new General Practitioner, medical practitioner or allied health practitioner treating the children or either of them.
19.The Father do all acts and things to cause the children to attend upon the Independent Children’s Lawyer’s office at a time agreed with the Independent Children’s Lawyer for the purpose of explaining the relevant provisions of these Orders to the children.
20.The Independent Children’s Lawyer be discharged following her explanation of the Orders to the children.
21.Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”):
(a)the Mother be prohibited from instituting proceedings in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act; and
(b)the Mother be restrained from serving any application for leave to institute proceedings under the Act on the Father prior to the grant of any such leave.
22.All extant applications be dismissed.
AND IT IS NOTED THAT:
A.The parties consented to the making of the above Orders on 18 and 19 July 2023, save for paragraphs 1, 5(a), 14(e), 21 and 22.
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 this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
Arising for determination are applications brought pursuant to Parts VII and XIB of the Family Law Act 1975 (“the Act”).
PARENTING MATTERS
The parenting proceedings concern two children, X, now 15 years of age, and Y, now 13 years of age. Their parents separated in 2014 and have been involved in litigation about them almost ever since.
Since December 2019, the children have lived with their father, Mr Cousins, his wife and their three children, O, P and Q.
Interim Orders currently provide for the children to spend time with their mother, Ms Peake. Y spends the ordered two nights on alternate weekends with Ms Peake. However, X has not spent time with his mother for an extended period of time.
At the commencement of the final hearing, Ms Peake proposed that both children live with her and spend no time with Mr Cousins for six months. Thereafter, she proposed that they spend one night with their father each alternate weekend, increasing to two nights from Term 2 next year and three nights from Term 3. She sought sole parental responsibility for both children.
On the second day of trial, during her cross-examination, Ms Peake gave evidence that her prosecution of the proceedings was not in the children’s best interests. She expressed a desire to discontinue her application. She was afforded an extended opportunity to speak with a duty lawyer and thereafter advised the Court that she sought to modify her proposal. She then consented to Orders that provide for both children to live with Mr Cousins, for X to spend time and communicate with her in accordance with his wishes, and for Mr Cousins to have sole parental responsibility for X.
Ms Peake was thereafter given leave to amend her proposal to seek the parties have equal shared parental responsibility for Y, and for Y to spend time with her each alternate weekend for three nights, for half school holiday periods and at Christmas. The particulars of her amended proposal are contained in Exhibit A1.
Further negotiations thereafter took place between the parties with the result that agreement was reached in relation to the preponderance of issues arising for determination. On the third day of hearing, further consent Orders were pronounced in terms of that agreement, including that Mr Cousins have sole parental responsibility for both children. Remaining for determination is an application for several orders made jointly by Mr Cousins and the Independent Children’s Lawyer, and an application for several orders sought by Ms Peake.
The following further orders are sought by Ms Peake (errors as per original):
·All previous parenting orders in relation to the children X born in 2008 and Y born in 2010 (collectively, “the children”) be and are hereby discharged, except for the consent orders for his application and enrolment at R School and his continuing education by consent at S School.[1]
·The child Y born in 2010 (“Y”) spend time and communicate with the Mother on each alternate weekend from the conclusion of school on Friday (or 4pm Thursday if a non school day) until 4pm on Monday (or 9am Tuesday if a non school day).[2]
·During school term holidays from the conclusion of school (or 3.30 p.m.) until 4.30 pm, on the second Saturday of the said holidays. First week of Half the School Terms Holidays, from the conclusion of school (or 3.30pm) until 12pm on Saturday, and in the event that the holidays are at least three weeks duration, a further period of four days from 10.00 a.m. on the Monday of the third week until 4.30 p.m. on the Thursday of the third week.[3]
·During the long summer holidays on alternate year
(a)From on odd numbered year, from 12pm, 29 December until 12pm, 10 days later.
(b)on even numbered year, from 12pm on 5 January to 12pm, 10 days later.[4]
·The Father do all acts and things to Specialist Paediatric Endocrinologist review appointments annually for the children.[5]
·The Mother is permitted to the children or either of them outside of the Commonwealth of Australia, for the purpose of holiday, with the Father’s consent not to be unreasonably withheld. The Father shall provide the Australian Passports for that purpose.[6]
[1] Exhibit A1, paragraph 1.
[2] Exhibit A1, paragraph 4.
[3] Exhibit A1, paragraph 5(a).
[4] Exhibit A1, paragraph 6.
[5] Exhibit A1, paragraph 11(b).
[6] Exhibit A1, paragraph 17 as amended orally.
The following further orders are sought by the Independent Children’s Lawyer and Mr Cousins:
·All previous parenting orders in relation to the children X born in 2008 and Y born in 2010 (collectively, “the children”) be and are hereby discharged.[7]
·The child Y born in 2010 (“Y”) spend time and communicate with the Mother on each alternate weekend from the conclusion of school on Friday (or 4pm if a non school day) until 4pm on Sunday.[8]
·The Mother be and is hereby restrained from save for in the event of an emergency, sending more than one email per fortnight to the children’s schools and/or extra-curricular activity providers (or either of them) NOTING THAT for the purpose of this restraint an email to teachers and/or employees at the children’s school and/or extra-activity providers constitute an email to the children’s school and/or extra-curricular activity providers.[9]
[7] Exhibit ICL1, paragraph 1.
[8] Exhibit ICL1, paragraph 5(a).
[9] Exhibit ICL1, paragraph 14(e).
Evidentiary matters
The parties were granted leave to rely on documents despite not complying with the Court’s filing directions. Pursuant to that grant of leave, Ms Peake relied on the following documents:
·Further Amended Initiating Application filed 12 July 2023;
·Affidavit of Mr T filed 14 July 2023; and
·Affidavit of Ms Peake filed 15 July 2023 (without annexures).
Mr Cousins relied on his trial Affidavit filed 30 June 2023. The Independent Children’s Lawyer relied on her Outline of Case filed 14 July 2023 and the documents referred to therein.
Ultimately the only witness who gave oral evidence was Ms Peake. She elected not to cross‑examine Mr Cousins. She also chose not to call the family therapist, Ms U, despite having successfully requested the issue of a subpoena to her for that purpose. She also failed to cross‑examine the single expert psychiatrist, Dr G, and the family report writer, Ms J. Those elections were made by Ms Peake despite her having been warned at the commencement of the trial of the consequence of failing to cross-examine a witness and my emphasising to her the importance of doing so if she challenged the evidence of any witness.
During Ms Peake’s cross-examination, it became apparent that she disputed not only Mr Cousins’ evidence, but also the evidence of Dr G and Ms J in substantial ways. She was reminded on several occasions that she would have the opportunity to cross-examine those witnesses and put her version to them. She nevertheless declined to do so.
Ms Peake was prohibited from personally cross-examining Mr Cousins as a result of an earlier Order made pursuant to section 102NA of the Act. She had previously accessed the Commonwealth Family Violence and Cross-Examination of Parties Scheme administered by Victoria Legal Aid. She chose not to avail herself of that scheme for the purpose of this trial.
Ultimately, the evidence of Mr Cousins, Dr G and Ms J was unchallenged. Whilst Ms Peake contradicted their evidence in multiple key respects, her failure to cross-examine them deprives the Court of the typical forensic basis upon which their evidence might be rejected. Nevertheless, their evidence may still be rejected. Because of the incompatibility between the contradictions between Ms Peake’s evidence and that of Mr Cousins, Dr G and Ms J, a basis must be found to prefer one version over another.[10]
[10] Agambar & Agambar [2021] FedCFamC1A 1 at [24] and the cases there cited.
I prefer the evidence of Mr Cousins, Dr G and Ms J to Ms Peake’s evidence. Ms Peake’s oral evidence was replete with inconsistencies and contradictions. To take but a few examples:
·Ms Peake was asked about an interim hearing before a Registrar on 23 May 2022. She gave evidence “there was no hearing”. When it was put to her that there must have some hearing, she maintained “there was no hearing”. When it was observed that there were Orders made that day that were described as not being by consent, she maintained “there was no hearing”. That repeated evidence was entirely inconsistent with both the Court record and her subsequent evidence that Counsel for the Independent Children’s Lawyer made submissions to the Court on that occasion.
·It was put to Ms Peake that at the same hearing, she accused the Senior Judicial Registrar of attempting to blackmail her. Ms Peake gave evidence “that’s right”. It was next put to her that it was a very serious allegation to accuse a judicial officer of the court of intending to blackmail her. She gave evidence “I did not say blackmail”. When the question was repeated, she gave evidence “if that was true, which it’s not”.
·Ms Peake gave evidence that Ms J had fundamentally misrepresented Ms Peake’s proposal as articulated to her. It was subsequently put to Ms Peake that she had accused Ms J of “making fundamental errors” in the preparation of her report. Ms Peake gave evidence that “I denied that”. Very shortly thereafter, she gave entirely contradictory evidence that “I don’t deny that it is fundamentally wrong” and confirmed that she did allege Ms J made fundamental errors. When given opportunity to explain the inconsistency, Ms Peake claimed that she thought she was being asked about the Independent Children’s Lawyer. The explanation was fanciful and I reject it.
·Ms Peake was asked questions about a Contravention Application filed by her in February 2020. It was put to her that it was inappropriate to then allege parental alienation, to which she responded “I did not do that”. In direct contradiction of that evidence, the Affidavit filed by her in support of the application, alleged parental alienation in its first and other paragraphs.
·Ms Peake was asked whether she was able to control her behaviour when writing messages berating Y. She responded “No”. She was then asked how often she is out of control, to which she gave evidence “I’ve never been out of control”. The two answers cannot be reconciled. She subsequently gave evidence that her telling Y that she might disown him was an “overreaction”, which I take to be an acknowledgment that she was out of control.
Ms Peake was frequently non-responsive to the questions asked of her. She regularly failed to let Counsel finish a question before commencing to speak. Questions needed to be repeated to her on several occasions, and she required multiple directions to answer the questions she had been posed. When inconsistencies in her evidence were put to her, she sought to retrospectively change her evidence or allege that she did not understand the question. I found those explanations to be generally fanciful. For reasons I will subsequently give, I reject Ms Peake’s extraordinary allegations of family violence which are entirely inconsistent with multiple proposals she has subsequently made to the Court. That rejection is consistent with my general preference for the unchallenged evidence of Mr Cousins, Dr G, and Ms J.
Ms Peake submits that Mr Cousins must be lying in relation to his present concerns because he left the children in Ms Peake’s care after Dr G’s first report in 2014. I find no such inconsistency in Mr Cousins’ conduct given the passage of time. It does not support a rejection of his evidence.
Despite the extensive litigious history between the parties, Ms Peake repeatedly asserted that “the evidence has never been tested”. She has now had the opportunity to challenge the evidence of Mr Cousins and the professionals recently involved with her family. Surprisingly, given her refrain, she chose not to do so. Her own evidence has now been tested. It has been found wanting.
Statutory framework
The applications fall to be determined by reference to Part VII of the Act. I am guided by the objects of that Part and the principles underlying those objects.[11] The children’s best interests are the paramount consideration.[12] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
[11] Family Law Act 1975 (Cth), s 60B.
[12] Family Law Act 1975 (Cth), s 60CA.
I am to apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them.[13] The presumption does not apply if there are reasonable grounds to believe either of the children’s parents have engaged in child abuse or family violence. It may be rebutted by evidence that satisfies me that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them.
[13] Family Law Act 1975 (Cth), s 61DA.
If I am satisfied that the children’s parents should have equal shared parental responsibility for them, I am required to consider whether the children spending equal time with each of their parents is in their best interests and reasonably practicable. If I am not so satisfied, I am required to consider whether the children spending substantial and significant time with each of their parents meets those same two statutory criteria.[14]
[14] Family Law Act 1975 (Cth), s 65DAA.
It is convenient to first address the section 60CC considerations before turning to the presumption contained in section 61DA and, if applicable, the matters prescribed by section 65DAA of the Act.
Primary considerations
The benefit to the children of having a meaningful relationship with both of their parents
It is agreed that both X and Y will continue to live with Mr Cousins, and thereby continue to have the benefit of having a meaningful relationship with him.
It is also agreed that X will spend time with Ms Peake only in accordance with his wishes. X has not spent time with Ms Peake since approximately May 2022, and it appears to be conceded that he is unlikely to do so in the near future. X’s parents and the Independent Children’s Lawyer all support that outcome which will now not afford him the opportunity to benefit from having a meaningful relationship with both of his parents. I agree that it is not in X’s best interests to be ordered to spend time with Ms Peake contrary to his expressed views, a matter to which I will return.
Y is currently spending time with Ms Peake on alternate weekends for two nights. Both the Independent Children’s Lawyer and Mr Cousins seek a continuation of that arrangement. Ms Peake seeks to extend that alternate weekend time to three nights (or four in the event of an adjacent public holiday). She also proposes that Y spend extended school holiday time with her.
The adjective “meaningful” in this context is qualitative and not strictly quantitative.[15] It is not clear that affording Y the opportunity to spend an additional night with his mother on alternate weekends will significantly improve the quality of their relationship. However, the prospect of Y having the opportunity to spend extended holiday time with Ms Peake will afford significantly greater opportunities for him to spend time with his mother.
[15] Mazorski & Albright (2007) 37 Fam LR 518 at [26]; McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at [115] and [121].
The question arising then is the extent to which that extended time proposed by Ms Peake will be beneficial and advantageous to Y into the future.[16] The further benefit to Y of spending extended time with Ms Peake is to be considered in light of any findings pursuant to other statutory considerations.[17]
[16] G & C [2006] FamCA 994 at [72]; McCall & Clark at [117]–[119]; Mulvaney & Lane (2009) FLC 93-404 at [89]; Oram & Lambert (2019) FLC 93-886 (“Oram & Lambert”) at [148].
[17] Oram & Lambert at [160].
The tragedy of this case is that the biggest risk to Y continuing to having a meaningful relationship with both of his parents derives not from whether or not he enjoys another night with his mother each fortnight and time during school holidays, but from Ms Peake’s own behaviour towards him. Ms J’s unchallenged opinion is that Ms Peake’s “continuous litigious approaches and behaviour may lead to a negative impact upon her relationship and time with Y if continued”.[18] Dr G’s unchallenged opinion is as follows:
Without intervention, I am very concerned that [Ms Peake] is on a path to estrangement from the children and she clearly is a mother who cares deeply for the children, no matter her difficulties with managing that.[19]
[18] Family Report of Ms J dated 6 July 2023 (“Family Report”), paragraph 78.
[19] Affidavit of Dr G filed 12 April 2023, page 14.
X is now estranged from his mother. For reasons upon which I will expand, that estrangement is essentially a function of Ms Peake’s conduct towards to him. Ms Peake has also sent a multitude of messages to Y that she accepted in cross-examination were “appalling”. Y has expressed suicidal ideation during Ms Peake’s barrages of messages to him on more than one occasion. Nevertheless, Ms Peake has studiously avoided engaging in psychiatric assessment and psychological treatment which she has been recommended to undertake on multiple occasions. As Dr G opines, absent that intervention, the current trajectory is one which has a likely outcome of Y also becoming estranged from his mother.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Both parties in these proceedings have made allegations of family violence. It is also suggested in various ways that the parents have neglected, or psychologically or emotionally abused the children. However, in circumstances where it is common ground that the children will live with Mr Cousins and that Y will spend at least some unsupervised overnight time with Ms Peake, I infer that it is not contended the children are at an unacceptable risk of harm in the relevant sense in those basal arrangements. For that reason, I will consider the allegations by reference to the relevant additional considerations.
Additional Considerations
Any views expressed by the children and any factors (such as their maturity or level of understanding) that are relevant to the weight to be given to their views
X reported to Ms J that he no longer spent time with Ms Peake because of what happened in 2022. He stated that Ms Peake “would get upset with him and his brother if they forgot to call her during the week as they were meant to”.[20] He recalled that Ms Peake, during his weekend time with her, would “yell and call him and [Mr Cousins] names”, [21] including calling him “liar, manipulator and gas lighter”.[22] X discussed the emails Ms Peake had sent him which contained similar comments. He described feeling like he was “walking on eggshells” and worrying that his mother would “just crack it” at him.[23] What he reported caused him to be most upset, was getting blamed for any type of behaviours by Y that were not approved by Ms Peake and her saying that X had instigated or thought of them. He recalled that usually on the drive back to changeover, Ms Peake would “project her negative feelings about [Mr Cousins] onto him”.[24] He expressed his initial great upset at experiencing this behaviour, although had later learnt to ignore it. He attributed the deterioration in Ms Peake’s behaviour towards him as being the result of him growing closer to Mr Cousins.
[20] Family Report, paragraph 49.
[21] Family Report, paragraph 49.
[22] Family Report, paragraph 49.
[23] Family Report, paragraph 50.
[24] Family Report, paragraph 50.
X also reported to Ms J that Ms Peake had historically called Mr Cousins a “deadbeat dad”, “liar” and “playtime father”, contrary to X’s own experience of his father.[25] He also recalled Ms Peake telling him that Mr Cousins had manipulated others “to destroy her”.[26]
[25] Family Report, paragraph 53.
[26] Family Report, paragraph 53.
Tellingly, none of the matters X referred to as being causative of the cessation of his willingness to spend time with his mother, related to anything other than Ms Peake’s treatment of him. So much is inconsistent with Ms Peake’s allegation that X’s estrangement from her is the result of what she describes as “parental alienation”. I accept Ms J’s unchallenged opinion that the information she gathered did not support Ms Peake’s allegation. The evidence before me does not support a contrary conclusion.
X clearly expressed to Ms J that he wanted to live with Mr Cousins and not spend any time with Ms Peake. X is 15 years old. Ms J opines that X’s decision seeks “to distance himself from his mother to protect his own emotional well-being”.[27] Ms J recommends that his views are given weight. It is common ground that his views about seeing his mother should now be determinative.
[27] Family Report, paragraph 73.
With respect to Y, Ms J reports as follows:
In respect to his views and wishes about future parenting arrangements, [Y] expressed that he liked it how things are. He however spoke of wanting to spend school holiday time with [Mr Cousins] rather than [Ms Peake] as he liked being at his father’s home more. [Y] reported that he believed his mother would be upset with his wishes and she wanted to do ‘fifty fifty.’
At this point in the interview, [Y] continued to present upset and tearful therefore the writer made a decision to end the interview.[28]
[28] Family Report, paragraphs 58 and 59.
Mr Cousins deposes to Y wanting to spend only one night with Ms Peake each alternate weekend. He avers to him reiterating that request repeatedly over the last twelve months. It is nevertheless Mr Cousins’ proposal that Y continue to spend two nights per fortnight with Ms Peake. Through his Counsel, he expresses his confidence in the recommendations of Ms J.
Ms Peake has previously berated Y for not expressing his views to an earlier family report writer. I will shortly return to those messages. She made no submissions about why it is that I should place reduced weight on Y’s expressed views.
Given the distress exhibited by Y in expressing his views and his concern about his mother being upset with his wishes, I do consider that weight should now be afforded to them.
The nature of the children’s relationships with each of their parents and other people, including any grandparent or other relative
The children currently live with Mr Cousins. Mr Cousins has remarried and has three children with Mrs Cousins, two boys currently seven years old, and another boy currently four years old. The children enjoy playing with their younger brothers.
Mr Cousins deposes to having a very close relationship with the children. Ms J opines that the children “appear happy and content in the care of [Mr Cousins] and the relationship between them presented as positive and comfortable”.[29] That evidence is unchallenged and I accept it.
[29] Family Report, paragraph 78.
X reported to Ms J that his living environment with Mr Cousins is positive and spoke of a “positive and close” relationship with his younger siblings.[30] He described a greatly improved relationship with Mr Cousins over recent years, and reports being able to go to him with any concerns. He considers Mrs Cousins to be a positive parental figure.
[30] Family Report, paragraph 48.
Y reported to Ms J a “positive living environment with [Mr Cousins]”,[31] and spoke of a positive and close relationship with Mrs Cousins and his half-siblings.
[31] Family Report, paragraph 56.
It is common ground that X has refused to spend time with Ms Peake since May 2022. He is effectively estranged from her. I accept Mr Cousins’ unchallenged evidence that Ms Peake’s temper and vicious comments towards the children has strained her relationship with them.
Ms J opines that Y’s relationship with Ms Peake is presently different to X’s and “would enable the ongoing relationship and time between [Y and Ms Peake] with lesser exposure to emotional turmoil”.[32] Nevertheless, Y’s interaction with Ms Peake during the family report assessments involved limited eye contact and Y being non-responsive to some of Ms Peake’s questions of him.
[32] Family Report, paragraph 78.
Mr Cousins submits that Y loves his mother, and it is agreed that Y will continue to spend alternate weekend time with her.
The extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children to spend time with them, and to communicate with them
It is not suggested that either party has failed to take relevant opportunities. Both parents have participated in relevant decision-making, spent time, and have communicated with the children.
The extent to which each of the children’s parents has fulfilled or failed to fulfil their obligations to maintain the children
Ms Peake pays no child support for the children, although she gives uncontradicted evidence that she is not assessed to pay any. Mr Cousins’ unchallenged evidence is that Ms Peake has never paid child support for the children.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents, or any other child or other person, including grandparent or other relative, with whom the children have been living
No significant change is now proposed with respect to the children’s living arrangements. Nevertheless, Ms Peake’s proposal would have the effect of separating Y from not only his full sibling, X, but also Mr and Mrs Cousins, as well his half siblings, for extended periods of time during school holidays.
The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect their right to maintain personal relations and direct contact with both parents on a regular basis
No such difficulties or expenses are raised by either party.
The capacity of each of the children’s parents and any other person, including any grandparent or other relative of the children, to provide for the needs of the children, including emotional and intellectual needs
Mr Cousins has been primarily responsible for the care of the children for more than three years. They are meeting expectations at school and excelling in several subjects. Ms J opines that there is little information available to indicate that the children’s needs are being neglected in the care of Mr Cousins. The evidence before me does not support a different conclusion. Mr Cousins’ capacity to provide for the children’s needs, and particularly their emotional needs, is vastly superior to Ms Peake’s.
Ms Peake has been psychiatrically assessed on two occasions by Dr G. She disputed Dr G’s opinions. Despite repeatedly indicating an intention to challenge his evidence in cross‑examination, she ultimately decided not to cross-examine him at all. I find no basis for Ms Peake’s assertion in oral evidence that Dr G was unable to perform his professional functions appropriately, free from influence. I also find no basis to reject his expert opinion.
In November 2014, Dr G opined as follows:
[Ms Peake] suffers from periods of increased distress with evidence of depression which best fit the pattern of [a mental condition].
…
It may be that the stress of the issues relating to [Mr Cousins] have caused distress and impairment in functioning as part of her [mental condition], or, less likely, another disorder such as a [mental illness] is emerging.
I believe that the concerns warrant follow-up by a psychiatrist to do further longitudinal assessment to either be confident that a [mental illness] is not present or emerging, or to treat such a disorder if evident. I would envisage that monitoring and review over a 6-month period would help clarify the issue.
…
Also of concern is [Ms Peake]'s repeated contacted with [Mr Cousins] which in my opinion reflects being overly emotionally invested in the relationship despite the separation and I believe that her psychological input, which should continue, should address this because I believe that this significant level of conflict has potential to impact on the care of the children either directly or indirectly.[33]
[33] Report of Dr G dated 5 November 2014, pages 4 to 5.
Ms Peake took no steps to follow-up with a psychiatrist for longitudinal assessment. Despite conceding that Dr G’s first report raised very serious concerns about her, she gave evidence that she did not do so because she did not agree with Dr G’s report. She sought no alternative opinion.
Dr G again assessed Ms Peake in March 2023. He then opined as follows:
There were no clear delusions evident, although she exhibited paranoia about the process, including beliefs that the conduct of the independent children's lawyer and the senior judicial registrar was racist and biased towards her.[34]
…
As per my previous report, I believe that [Ms Peake] suffers from personality vulnerabilities.
In my opinion, she has demonstrated, in her conduct of this matter, [mental health issues], although a diagnosis of [mental health issues] per se would require a longer period of longitudinal assessment, and I repeat my earlier recommendation that she should have some further assessment by a psychiatrist to determine whether there is indeed an underlying [mental] disorder.
….
She has, in my opinion previously suffered from [a mental illness], and in my opinion there is a degree of ongoing anxiety related to the Court matters.[35]
[34] Affidavit of Dr G filed 12 April 2023, page 8.
[35] Affidavit of Dr G filed 12 April 2023, page 13.
Despite that report being made available to Ms Peake several months prior to the commencement of the final hearing, she again took no steps to obtain longitudinal assessment by a psychiatrist. Despite disputing Dr G’s conclusions, she also took no steps to obtain any further opinion in relation to her mental health.
Ms Peake denied that she had expressed beliefs to Dr G that the conduct of the Independent Children’s Lawyer and the Senior Judicial Registrar was racist towards her. She denied the topic had been discussed and claimed that Dr G’s report is inaccurate. She failed to cross‑examine Dr G despite arrangements having been made for her to do so. I find no basis to reject Dr G’s evidence. I accordingly find that Ms Peake accused both the Independent Children’s Lawyer and Senior Judicial Registrar to be racist and biased towards her. The allegations are scandalous and I accept Dr G’s unchallenged characterisation of them as paranoid.
In Dr G’s opinion, Ms Peake’s mental health deficiencies are directly impacting on her parenting capacity. He opines as follows:
… I have no doubt that her personality vulnerabilities are having a detrimental effect on her parenting and her ability to conduct the current proceedings.
…
Her correspondence with the children attached in the affidavit material reveals an inability to shield them from conflict with her father and indicates a degree of emotional harm by her comments towards them. In my opinion, this reflects her inability to manage the process and contain her distress and behaviour.
… she has evidenced an inability to emotional separate from [Mr Peake] (sic) and the Court proceedings.[36]
[36] Affidavit of Dr G filed 12 April 2023, page 13.
It was put to Ms Peake in cross-examination that it would be an extremely concerning matter for the Court that her parenting is affected by her underlying vulnerabilities. She was non‑responsive to the question. She maintained that she “did not agree” with the report, also asserting subsequently that it was “untested”. To repeat, it was ultimately untested at her election. Ms Peake gave evidence that in her former profession as a medical professional, she has referred people to obtain second and third opinions. She agreed that she had not done so in relation to her own mental health, despite it having been recommended by Dr G.
Dr G makes the following recommendations to Ms Peake in his recent report:
Psychological input, in my opinion, is critical and should provide further assessment of personality and intervention to encourage her to manage any concerns about the children in an appropriate way, focus on improving her communication with the children, including, importantly, not discussing their father with them.
I recognise that it is going to be difficult for [Ms Peake] to read and consider the recommendations of this report and engage in this treatment as she lacks insight into the nature and impact of her behaviour; but it is critical to her health and the wellbeing of the children.[37] (emphasis added)
[37] Affidavit of Dr G filed 12 April 2023, pages 13-14.
Despite the critical nature of the treatment recommended by Dr G, Ms Peake gave evidence she has not taken steps to obtain psychological treatment. Although she subsequently asserted she had done so, she was unable to identify the psychologist upon whom she claims to have attended. I prefer her earlier evidence given that inability.
Ms Peake gave evidence that she understood the meaning of the word critical, and agreed it imports a notion of urgency and a requirement for serious attention. Ms Peake apparently sought to justify her failure to obtain any psychological treatment by reference to her evidence that Dr G did not express any concerns to her during the consultation. Any such failure provides no basis for Ms Peake to ignore his written recommendations both in 2014 and 2023. Her failure in that respect reflects very poorly on her capacity to provide for her children’s emotional needs given the negative impact of her behaviour upon them.
Ms J also opines that it would likely be “imperative” that Ms Peake undertake further mental health assessment.[38] She goes on to observe that without psychological support, it is “uncertain and worrisome if [Ms Peake] will have the ability to recognise the impact of her behaviour upon the children and her parenting capacity”.[39] Ms Peake’s evidence to the Court amply demonstrated her lack of recognition of the impact of her behaviour on her children.
[38] Family Report, paragraph 75.
[39] Family Report, paragraph 75.
Dr G concludes his recent report as follows:
In my opinion, [Ms Peake] needs to be able to demonstrate, with intervention, that she is able to work positively in the co-parenting relationship and stop her voluminous communications and her repeated and protracted legal manoeuvres.
Without intervention, I am very concerned that [Ms Peake] is on a path to estrangement from the children and she clearly is a mother who cares deeply for the children, no matter her difficulties with managing that.[40]
[40] Affidavit of Dr G filed 12 April 2023, page 14.
As has already been discussed, X is effectively estranged from his mother, having spent no time with her since May 2022. On 12 May 2022, Ms Peake sent the following email to X. It was copied to the Independent Children’s Lawyer, Mr Cousins and others. Despite its length, it is necessary to set it out in full:
Dear [X],
Actually, we had discussed last weekend that, due to your escalating aggressive and disrespectful attitude and behaviour towards me, I will have to set firm boundaries for you as your parent, whereby you will need to respectfully advise me with reasonable advance notice, of your intention to either call and/or spend time with me.
I can then either approve or disallow it. I do not want [Y] to be continually affected by your enabled poor attitude and behaviour and also often, I would have to book activities or trips well in advance for the weekends. Hence I do not want to continue to reward coercive control or abusive behaviour from my own child.
Since it is Thursday evening, and it was discussed that you would need to provide to me reasonable notice by Wednesday evening at the very latest, and no advanced notice had been received from you as a courtesy and respect, to seek my permission to spend time for this weekend, I had simply presumed it was a given that [Y] and I would spend quality time on our advanced planned activities.
We had also discussed that if you want to seriously repair our relationship without the constant threats, blame or vitriol or false allegations, as what [Ms U] stated during our last session that "you are simply the mouth piece", with ongoing counselling with [Ms U], then it is for you to call her to make further appointments (I have provided to you her buisness card and details).
I had also discussed with you on how you would propose to contribute towards the high out of pocket costs (after Medicare Rebates from your Medicare Mental Health Plan) for the sessions (approximately $120 per hour after Medicare rebate). I had proposed to you that one way for you to contribute would be to earn pocket money through chores and the monetary value that you would placed on certain types of chores.
We discussed last weekend that within a healthy relationship, there needs to be two people who are willing to compromise with forgiveness on both sides. You cannot threaten or force anyone else to want to have a relationship with you. [Ms U] pointed out to you that you have been overly exposed to adult issues and have become the mouth piece and that it should be easy for me to forgive you if I continue to remember that you are only the mouth piece.
I love you unconditionally and with all my heart. I have always sacrificed and did my utmost best for you and [Y], by fighting to get you into [R School].
I fully appreciate and understand that as a teenager, you want to push back with your own identity and are entering a rebellious phase. But I also can identify the insidious nature of coercive control and learnt behaviour that perpetuate that vicious cycle, from which I left many years ago.
Hence, sweetie, my firm boundaries will remain for you as were discussed. There is no need to send me further emails to advise that you are not wanting to spend time. As per our discussion, please only send Mum in advance your intentions if and when you wish to call me or spend time with me. I will either confirm or deny permission.
Please give the shared phone to [Y] to be in charged of going forward, and please do not hold the phone to ransom to restrict my relationship, with your brother. Please also keep adult issues that you are being told inappropriately away from [Y]. My ongoing relationship with you is different and separate from my ongoing relationship with [Y].
I love with you all my heart.
Mum.[41] (emphasis added)
[41] Exhibit R2.
Ms Peake denied that the email was very disturbing, that it was aggressive, or that it showed a lack of parental insight. I reject her evidence. It is each of those things. She is therein accusing her own child of family violence towards her. She is therein placing conditions upon the circumstances in which X’s own mother might permit him to see her. She is making it his problem to fund therapy to improve their relationship.
In oral evidence, Ms Peake asserted that she had insight into the reason why her relationship with X had broken down. I reject her evidence. No such insight was evident from the way in which she gave her evidence or conducted her case, even if she reluctantly admitted, when pressed, that the email would not have made X feel really good and expressed regret about how she approached the Mother’s Day incident. Ms Peake took no responsibility for X’s response to her email. Instead, she blamed Mr Cousins for the breakdown in her relationship with X. So much is inconsistent with X’s report to Ms J and the unchallenged expert evidence before the Court.
Ms Peake was asked where the email was she sent to X apologising for things she wrote. She initially gave evidence “that will be presented”. It was not. It was later put to her that there had been no apology from her in her subsequent emails. She eventually conceded that she did not apologise to him, asserting that “I did not know that I had anything to apologise for”. That evidence is also inconsistent with Ms Peake having any insight into the impact of her behaviour on X. It reflects very poorly on her capacity to provide for her children’s emotional needs.
Ms Peake made multiple assertions that the Independent Children’s Lawyer lacked impartiality. In particular, she gave evidence that Ms Hams had made a recommendation to the Court on 23 May 2022 “without any evidence”. The allegation is fanciful. Ms Peake herself copied her disturbing and aggressive email to X on 12 May 2022 to Ms Hams.
Also inconsistent with Ms Peake developing any insight into the impact of her own behaviour, she made an objection to Counsel for Mr Cousins reading to her from her own email to X dated 22 July 2022 in the following terms:
It is too emotionally traumatic for you to have emotional tantrums in public in the parking lot of McDonald’s. It also feeds into your egocentric need to be the focus of attention, to feel entitled and to learn behaviour of coercive control.[42]
Ms Peake objected to this passage being read on the basis that it was “argumentative”. Ironically, it was her own words to X that were being quoted to her that she then claimed to be argumentative. I reject her evidence that she was not attacking and criticising her son by email.
[42] Exhibit R3, page 1.
Ms Peake reluctantly agreed in cross-examination that she had exposed X to the legal proceedings. Her email to him dated 22 July 2022 included the following passage:
So rather that traumatise you further, it is these difficult decisions that Mum would have to make when I file my amended final orders for trial in November 2022, to ensure you are no longer used, and to give you a reprieve, from being further abused by your Dad for his court case.[43]
Not only is that passage remarkable for its direct exposure of X to the proceedings, it also makes the false allegation that the extant court proceedings were Mr Cousins’ case, rather than the one initiated by Ms Peake. It also alleges Mr Cousins of abusing X. X was then in Mr Cousins’ care as a result of Orders to which Ms Peake consented in December 2019. Contrary to Ms Peake’s evidence, I find her email to be an attempt to poison X’s mind about Mr Cousins.
[43] Exhibit R3, page 3.
Ms Peake’s lack of capacity to provide for her children’s emotional needs is also demonstrated by the immediately following passage from the same email:
It is not because I love you less than [Y] or have "abandoned" you when you see that I am spending thousands to fight only for [Y] now and not for you in 2019. I have done my very best for you. There are other children who may need me more as well.[44]
[44] Exhibit R3, page 3.
Ms Peake agreed in cross-examination that X was in crisis at the time she sent that email. Contrary to her evidence, the email suggests to him that he is replaceable. She reluctantly conceded that he may have heard the email as:
Well, I’ve had it with you, son. There are other kids I’m going to give my time to. They need me more than you.
Ms Peake’s email of 22 July 2022 also included the following passage:
Your behaviour and action during the past few months have gone against all of our tradition, values, and cultural and family upbringing and it has been a dishonour to your grandparents' memory and sacrifices.[45]
X’s maternal grandparents have passed away. Ms Peake conceded that the comment was hard hitting. I accept Counsel for Mr Cousins’ characterisation of the email as being a very heavy statement for X to wear.
[45] Exhibit R3, page 3.
Ultimately, Ms Peake conceded that her emails to X were not in his best interests. She thereby concedes that she has acted contrary to her children’s best interests. Absent any retraction of her comments, apology from her to X, or psychological treatment of her, there is no basis to conclude that she now has a greater capacity to provide for her children’s emotional needs.
Ms Peake also copied X’s school into her disturbing, aggressive, and critical emails to him. She did not seek X’s permission to do so. She admits that was a breach of his human rights. For Ms Peake’s emails to X to be publicised to his school without obtaining his permission also reveals an extremely poor capacity in Ms Peake to provide for her children’s emotional needs.
Regrettably, it is not just X who has borne the brunt of his mother’s reactivity and anger. Ms Peake and Y had an extensive text message exchange on 7 February 2020, when Y was 9 years old. The entirety of the exchange, as produced by Ms Peake, is contained in Exhibit ICL6. It was an exchange that begins with Y apologising for forgetting his watch at school.
The following exchange commenced at 4:01pm (text as per original, underlining emphasis added):
[Ms Peake]: I'm not happy at all
[Y]: I can get it back
[Ms Peake]: So you r at [Mr Cousins’] without your watch ??
[Ms Peake]: It is very expensive
[Ms Peake]: I do not trust you with anything anymore
[Y]: :(
[Ms Peake]: I asked you not to brag or show anyone
[Ms Peake]: Not even [Mr Cousins]
[Y]: I didn't
[Ms Peake]: You disobeyed me over and over
[Ms Peake]: You showed the kids
[Ms Peake]: None of their business
[Ms Peake]: I bought it for your safety
[Ms Peake]: Not a play thing
[Y]: They found out them selfs
[Ms Peake]: Just like you are stuck at your dad due to your actions
[Y]: I didn't play on it
[Ms Peake]: You will need to learn the consequence
Ms Peake is therein berating nine year old Y for forgetting his watch at the school office. She conceded in oral evidence that the man she is referring to in the messages is Mr Cousins. She describes buying the watch for his safety, and expressing displeasure at the fact Y is at his father’s home without the watch. Contrary to Ms Peake’s evidence, her messages suggest to Y that he is unsafe at his father’s home.
After some other messages, the following exchange continued from 4:05pm (text as per original, underlining emphasis added, noting that V is X’s Country W name):
[Ms Peake]: Pls ask [V] to take from you and I will confiscate permanent
[Ms Peake]: Permanently
[Ms Peake]: You will need to start to learn consequences
[Y]: Including [Z]
[Ms Peake]: Too easy with me all your life
[Ms Peake]: No
[Ms Peake]: Just the watch
[Ms Peake]: Then you are on your own
[Ms Peake]: Let [Mr Cousins] take care of you and your future
[Ms Peake]: You're one of 5 [Y]
[Ms Peake]: Roll with the flow
[Ms Peake]: I wand your watch to be return to me next week
[Ms Peake]: Permanently
[Y]: Okay
[Ms Peake]: Where is it now?
[Ms Peake]: You think that you will get angry at me [Y]?
[Ms Peake]: I might disown you before then! I am very disappointed
Ms Peake’s comments to Y that he is stuck at his father’s due to his actions, and telling him to let his father take care of him, are extraordinary representations to make in the context of Ms Peake having consented in December 2019 to the children living with Mr Cousins. Ms Peake reluctantly conceded that her messages would have made Y feel sad.
After some further messages, Ms Peake raised with Y the topic of his interview for the preparation of an earlier family report with Consultant AA, in proceedings to determine Ms Peake’s application to relocate internationally with the children. The following series of messages were sent by Ms Peake from 4:12pm (text as per original, underlining emphasis added):
[Ms Peake]: And yet when I ask you to do things and say things to [AA] for your own future you said the opposite
[Ms Peake]: Go with the flow !!
[Ms Peake]: No use crying to me now
[Ms Peake]: You continue to not listen
[Ms Peake]: Like the watch
[Ms Peake]: I spent lots of money to make sure that watch keeps you safe
[Ms Peake]: You do not appreciate anything or my effort
[Ms Peake]: Well then [Y] enjoy trips to [the shops] and be given crumbs
[Ms Peake]: My efforts have been wasted
Ms Peake expressed regret in the witness box for having sent the message about the children being given crumbs. She agreed that it was appalling. However, the appalling messages did not then cease.
After some further messages, the following exchange commenced at 4:16pm (text as per original, underlining emphasis added):
[Y]: How do you change
[Y]: Like
[Y]: Be gratful
[Y]: Because I wish I could change
[Y]: Yes you may think that I am being sorry to myself
[Ms Peake]: When you go hungry and thirsty
[Ms Peake]: And not loved
[Ms Peake]: When no one is there for you when you need someone
[Ms Peake]: Then you will realise what you have lost
[Y]: I did a serious conversation with [X]
[Y]: I lost everything
[Y]: Including myself
[Y]: About me wanting to kill myself
[Y]: I just wish I could change
[Ms Peake]: Stop watching your inappropriate You Tube videos
[Ms Peake]: And playing your computer games
[Y]: I also told [X] want to do if i wanted to chang
[Y]: *change
[Y]: But, mummy, how do I change
[Y]: How do I be grateful and not a spoiled brat who cares about nothing
[Y]: Or a b#### #
[Y]: It's hard
[Y]: I'm bad
[Ms Peake]: Firstly stop being a drama king
Ms Peake agreed that her response to Y’s suicidal ideation was totally lacking in empathy and was very dismissive. She went on to write to him (text as per original):
[Ms Peake]: This is real life
…
[Ms Peake]: You don’t get do overs
….
[Ms Peake]: You didn’t care who you live with
[Ms Peake]: You said so yourself
….
[Ms Peake]: Stop feeling sorry for yourself
[Ms Peake]: Own your consequences
Ms Peake agreed that those messages also displayed a lack of empathy. Whilst she claimed in oral evidence that she has always taken responsibility, she agreed she had made no such claim in her affidavit material.
Ms Peake did go on to write messages to Y including (text as per original):
[Ms Peake]: You are not bad
[Ms Peake]: There are kids worse off than you
[Ms Peake]: Kids homeless hungry unloved
[Ms Peake]: You need to go and talk to [Mr Cousins] and voice what you need
[Ms Peake]: both of you
When Ms Peake was initially confronted with the above correspondence with Y, as attached to an affidavit of Mr Cousins filed in May 2022, she gave repeated evidence that the correspondence was incomplete, was selectively extracted by Mr Cousins, alleging that it is a “fraudulent copy”. When her version of the correspondence was subsequently brought to her attention, I gave her an opportunity to tender her version of the exchange. Somewhat extraordinarily, this precipitated Ms Peake making an application for me to recuse myself on the grounds of apprehended bias. Albeit that application was based on other allegations, I am left with the impression that the timing of the application was an attempt to distract from her baseless allegations that Mr Cousins’ extract of the text messages was fraudulent. Having now compared the documents, there is no foundation for the allegation. The only difference between them was that Mr Cousins’ extract concluded 7 messages prior to Ms Peake’s. As will be observed, this is not the only unfounded allegation of fraud made by Ms Peake.
Ms Peake agreed in oral evidence that her children would not have forgotten discussing Y’s suicidal ideation with each other. Despite expressing remorse for her appalling messages to Y, which she now admits were wholly lacking in empathy, she agreed that she has never apologised to the children for sending them. She sought to justify that failure by giving evidence “I have no way on a routine basis to get in contact with [Y]”. That evidence is fanciful given Y has always spent regular time with Ms Peake and currently spends alternate weekends with her.
It will be recalled that Dr G opined that Ms Peake’s correspondence with the children indicates a degree of emotional harm. Ms Peake gave evidence that she has reflected on her actions and undertaken “intelligence counselling with the school to have more empathy towards dealing with a child who might be in that situation”. That evidence does not permit any conclusions to be drawn about the efficacy of any such counselling. She has not engaged with the psychiatric assessment or psychological treatment that has been recommended by Dr G. There is no evidentiary foundation for a conclusion that Ms Peake is capable of, or will, modify her behaviour in the future. It is behaviour that not only fails to meet her children’s emotional needs, but in fact harms them. As Ms J opines, her “behaviour towards them and in their presence is seemingly having a damaging impact upon their mental health and well-being.”[46]
[46] Family Report, paragraph 72.
Consistent with Ms J’s opinion, Mr Cousins gives unchallenged evidence that Ms Peake’s parenting approach has damaged both children. He deposes that they “both displayed signs of chronic stress and anxiety, manifesting in physical tics, nail biting, incontinence, severe shyness, sleeping with stuffed animals, and fear of decision-making.”[47] The negative impact of Ms Peake’s behaviour on her children could not be more palpable.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of their parents, and any other relevant characteristics of the children
[47] Affidavit of Mr Cousins filed 30 June 2023, paragraph 21.
Both children are performing within expectations at school, and excelling in some of their subjects. Y plays sports each week. X plays sports several times a week and has grown in confidence and self-assurance as a result.
If the children are Aboriginal children or Torres Strait Islander children, their right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order will have on that right
The children are not Aboriginal or Torres Strait Islander children.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of their parents
It is to Mr Cousins’ substantial credit that despite his reservations about the emotional impact on Y of his relationship with his mother, he is prepared to adopt Ms J’s expert recommendation. In light of the impact of Ms Peake’s behaviour on the children, and X’s current estrangement from her, I find his proposal to reflect very well on his attitude to the responsibilities of parenthood.
Ms Peake gave oral evidence that she always believed that she would lose her current application. She also gave oral evidence that her prosecution of the current application was not in her children’s best interests. Her actions have seen the children exposed to further expert assessment and appear to have resulted in the loss of their therapeutic relationship with Ms U, upon whom they had attended. Fancifully, Ms Peake repeatedly asserted that it was Mr Cousins who was dragging the children through the proceedings and submitted he was dragging them through what she described to be a nightmare. Ms Peake’s attitude in prosecuting a parenting application contrary to her children’s best interests is extremely troubling.
Despite Ms Peake’s extensive litigation in this Court over nearly a decade, she fails to adhere to its orders, its rules and procedures. She has failed to make any attempt to comply with costs Orders made 28 November 2022. On 16 February 2022, some weeks after X commenced at R School, Ms Peake sent to the school copies of documents from these proceedings, including orders, affidavits, case outlines, and applications. She acknowledged she did not seek the Court’s permission to provide those documents to the school and conceded that her actions were not in the children’s best interests.
Ms Peake was directly asked whether she was apologetic for sending the documents to R School. She answered “I am apologetic”. She indicated she was apologetic to the Court, X and Mr Cousins. However, she acknowledged she has never sent any correspondence to apologise. Despite agreeing that the children’s school should be a sanctuary for them, Ms Peake sought to explain her conduct as being a “reaction” and the other contents of her email to be an “overreaction”. Her conduct, not only being unable to control her reactivity at the time of sending the email, but also in the subsequent period of not apologising for doing so, reflects very poorly on her attitude to the responsibilities of parenthood.
In July 2022, Ms Peake emailed X, again copied to his school, including the following statements (text as per original):
During 2019, I had also discussed with you that Mum had to rebuild our future and to pave your path to financial security and tertiary education to prevent a repeat of your "homelessness" at having to play camping while you slept in a tent (you do remember all those times dont you [X]). I have previously told you that my position will pave your path easier into certain university courses.[48]
Ms Peake gave oral evidence that it was totally inappropriate for her to raise a period of homelessness with X in the manner she did. More concerning was her subsequent evidence that “I could have stopped myself”. So much indicates that she was not reacting or overreacting in that moment, rather, making a considered decision to raise a wholly inappropriate topic in her correspondence with her son. So much also reflects very poorly on her attitude to the responsibilities of parenthood, as does her repeated messaging to the children in relation to the court proceedings.
[48] Exhibit ICL 7, page 3.
Other aspects of Ms Peake’s oral evidence were consistent with what Dr G opines to be her paranoia about the litigious process. Without Dr G’s consent, she recorded her appointment with him in March 2023. She sought to justify her conduct by alleging that he may have spoken to Ms Hams who may have influenced him against her. She gave oral evidence that it would have been respectful to ask Dr G’s permission to record the interview. The corollary is that she admits her conduct was disrespectful.
Ms Peake, both in her opening remarks, and in her oral evidence, claimed that Ms J had misunderstood her proposal for the children. Ms Peake’s evidence in relation to the topic lacked consistency and congruity. Ms Peake acknowledged that she understood the very reason the Court made Orders for the filing of her amended proposal and her affidavit material well in advance of expert assessments, was to ensure that the experts clearly understood her proposal and the evidence she relied on. She nevertheless failed to comply with that direction. When the inconsistency between her non-compliance and acting in her children’s best interests was put to her, she asserted that “everything” she has “done and filed has been either to defend vexatious allegations or for the best interests of the children”. That evidence is fanciful. Ms Peake herself thereafter acknowledged that her non-compliance with Court directions was inconsistent with acting in her children’s best interests and she had no excuse for it. Her non‑compliance is consistent with a general lack of capacity to prioritise and attend to her children’s best interests.
Ms Peake gives the following evidence in her affidavit under the heading “Responses to the Family Consultant’s Report”:
I say the Family Consultant did not have the benefit of my Trial Affidavit evidence.
Hence, she was only able to use inaccurate facts and false allegations. She did not assess in depth of severe consequences of family violence, parental alienation, and psychological abuse of the children while in [Mr Cousins]’s care.
The email to [X] that have been used by [Mr Cousins] and relied upon by the Family Consultant was a part of a longer correspondence that she had not been privy to make a completer and more accurate conclusion.[49]
As Ms Peake acknowledged in oral evidence, it was entirely her fault that Ms J did not have her affidavit evidence. Her expressed apologies both to Ms J and to the Court do nothing to assuage the Court of the view that Ms Peake’s failure to comply with its orders, directed to ensuring the best possible decision can be made in the children’s best interests, reflects poorly on her capacity to prioritise and attend to those interests.
[49] Trial Affidavit of Ms Peake filed 15 July 2023, paragraph 146.
Also consistent with her failure to prioritise her children’s best interests, Ms Peake gave oral evidence that her main concern in recent times has been to defend her innocence in relation to Intervention Order and criminal proceedings brought against her. She agreed that, what was more important to her, was clearing her name in proceedings in the State Courts, rather than focusing on these parenting proceedings and her children’s best interests. Thereby, Ms Peake has prioritised her own reputational interests over the interests of her children. So much reflects negatively on her attitude to the responsibilities of parenthood.
Ms Peake makes an extraordinary allegation against the family therapist, Ms U, in her trial affidavit:
On or around May 2022, by telephone when [Ms U] called in relation to [Y]’s birthday week on behalf of [Mr Cousins] and Ms Ham, ICL, she attempted to exhort higher payments from me for what she deemed “favourable” clinical notes. I refused.[50]
She agreed in oral evidence that she was accusing Ms U of being an extortionist. It is a scandalous allegation. Ms Peake subpoenaed Ms U to give evidence but then chose not to call her to put the allegation to her. I do not accept Ms Peake’s evidence that Ms U is an extortionist.
[50] Trial Affidavit of Ms Peake filed 15 July 2023, paragraph 148.
Ms Peake’s general attitude to the proceedings and her engagement with them, reflects very poorly on her attitude to the responsibilities of parenthood. I accept Mr Cousins’ insightful evidence that Ms Peake “has proven again and again that her vendetta in court sadly outweighs her judgment as a parent”.[51] Mr Cousins’ attitude to the responsibilities of parenthood is vastly superior to Ms Peake’s.
[51] Affidavit of Mr Cousins filed 30 June 2023, paragraph 49.
I accept Ms J’s unchallenged opinion that:
… there are substantial concerns that [Ms Peake]'s apparent persistent confrontations and threatened actions against other professionals that are directly involved in the children’s daily lives has and will have a detrimental impact upon them and their needs. The volume of material identified particularly in regards to the communication with the children’s schools may be viewed to be verging on harassment. It also takes up a considerable amount of the schools time which effectively is taken away from a focus upon the children’s needs. Whilst [Ms Peake] may believe that she is undertaking her parenting role in advocating for the children and their needs there are significant concerns that if both parents are required to make decisions that pertain to the children, [Ms Peake]'s pattern of behaviour towards these professionals will likely severely disrupt any future intervention in regards to the children and their well-being. It is suggested that any Orders that are made particularly in respect to future psychological support for the children that this will need to restrict [Ms Peake]'s capacity to communicate with such services.[52]
[52] Family Report, paragraph 80.
Both Mr Cousins and the Independent Children’s Lawyer propose an order that would restrain Ms Peake from sending no more than one email per fortnight to the children’s schools and/or extra-curricular activity providers. Not only is such a restraint necessary to address the unchallenged concerned raised by Ms J, it is consistent with Ms Peake’s own evidence that the children’s schools need to be a sanctuary for them. Given her inability to moderate her own reactivity, I find the order sought to be in the children’s best interests.
Any family violence involving the children or a member of their family
Mr Cousins denies that he subjected Ms Peake to family violence. In cross-examination, Ms Peake agreed that her Trial Affidavit alleges that she was the victim of extraordinary family violence and that Mr Cousins subjected her to physical, verbal, emotional, sexual, financial and psychological abuse. She also gave evidence he was coercive and controlling of her and financially controlled her. Ms Peake gave the following evidence:
COUNSEL FOR [MR COUSINS]: …. it makes no sense that you, who loves her children, who would throw herself on hot coals to protect her children, correct?
[MS PEAKE]: Yes
COUNSEL FOR [MR COUSINS]: Yes, who would put her children before everyone else, correct?
[MS PEAKE]: Yes
COUNSEL FOR [MR COUSINS]: Yes, first priority, it just makes no sense whatsoever?
[MS PEAKE]: I saw their suffering.
COUNSEL FOR [MR COUSINS]: Let me finish the question. It just makes no sense whatsoever that these allegations could be true, because if they were true, you would be like a fierce lion, fighting for them no matter what, [Mr Cousins] would be the last person you would ever agree to leave the children with, and the last person you would ever agree to give sole parental responsibility to, that’s the truth, isn’t it?
[MS PEAKE]: Yes
Ms Peake maintained her allegations of extraordinary family violence as being true. Entirely inconsistently with her evidence, she had, in December 2019, consented to orders that provided for her children to live with Mr Cousins, and for him to have sole parental responsibility upon her departure from Australia.
As was suggested to her by Counsel for Mr Cousins in cross-examination, there are two very likely possibilities in seeking to reconcile her allegations of family violence with her actions in December 2019. Firstly, that everything in Ms Peake’s Trial Affidavit is a figment of her poor mental health and that she is a person suffering from the emergence of a delusional psychosis, as opined by Dr G. Secondly, that Ms Peake is simply a “bold-faced liar” on oath. Ms Peake denied both alternatives in evidence.
Ms Peake variously sought to explain the inconsistency between her allegations of family violence and her consent to the Orders in December 2019. She referred to having a very lucrative job offer in the United States and complained of what she described as her “protracted homelessness”. It is telling that to the extent she lacked financial security, despite litigating in the Victorian Civil and Administrative Tribunal (“VCAT”) in approximately 2017 about her right to practice as a medical professional, she refused to undertake a performance assessment as a prerequisite to her re-registration. As a result, she has not since worked as a medical professional.
Ms Peake gave evidence that she was legally advised that due to how strongly X then wanted to live with her, the children would vote with their feet when they were mature enough. She referred to being requested to pay a further $50,000 for her own future legal fees. She sought to minimise the allegations by suggesting that the violence was directed towards her, although conceded that the children were exposed to it. She referred to her consent being a legal strategy to bind the hands of the Court in her application to relocate with the children overseas. I am not satisfied that any of those matters would lead a capable mother to consent to the children living with the monster she agreed she alleges Mr Cousins to be.
Significantly, none of those explanations address the subsequent points in time at which she proposed that the children live with Mr Cousins. When she initiated these proceedings in December 2021, she proposed that the children live each alternate week with Mr Cousins. She formally maintained that position throughout the proceedings until a few days before the trial, some 18 months later. Her attempt to reconcile that position with her allegations of extraordinary family violence was illogical.
Perhaps even more strikingly, Ms Peake herself proposed, part way through her cross‑examination, that the children live with Mr Cousins, and he be afforded sole parental responsibility for them. When the inconsistency between that position and her allegations was put to her, she gave the following illogical evidence:
Because I haven’t been able to cross-examine [Mr Cousins] on any of his allegations and I’ve been hampered to present my case as effectively and I want to be able to – just like in 2019, so that – remove myself as much as possible. So that it’s – they don’t observe it any longer. If he feels – it has always been a competition of [Mr Cousins] having to win at everything, of controlling and having to win everything. If he feels like he has won this, perhaps the children won’t be exposed to it anymore.
Ms Peake’s assertions of extraordinary family violence are incredulous in light of her repeated assertions to this Court that it is in the children’s best interests to be in Mr Cousins’ substantial care. They are inconsistent with other parts of her evidence, including that she was “totally unaware of [Mr Cousins’] anger” until after the parties’ separation.[53] They are inconsistent with her own text message to Mr Cousins in March 2014 that she “honestly had never felt physically threatened” by him in all the years they were together.[54] Given Ms Peake’s evidence was also generally lacking in reliability, I reject her allegations of family violence perpetrated by Mr Cousins. The evidence does not permit me to determine whether they are a product of her poor mental health or her wilfully giving false evidence.
If a family violence order applies, or has applied, to the children or a member of their family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court, or in proceedings for, the order, and any other relevant matter
[53] Affidavit of Ms Peake filed 15 July 2023, paragraph 10.
[54] Exhibit A6, page 37 of 96.
There is a lengthy history of family violence orders between the parties. The evidence now before me does not particularise that history to any significant extent and does not permit me to draw any inferences from the making of those orders.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
If history is any guide, there is a strong likelihood that Ms Peake will initiate further proceedings in relation to the children, despite her evidence that she would accept the outcome of these proceedings. Parenting proceedings were first initiated in the Court by Mr Cousins in 2014 which resulted in final parenting Orders being made in October 2015. Ms Peake subsequently prosecuted proceedings in relation to child support for the children which were determined in November 2016. Ms Peake initiated new parenting proceedings in April 2018 which were finalised upon the making of final Orders in December 2019. Ms Peake initiated these parenting proceedings in December 2021. She has also unsuccessfully prosecuted a number of contempt and contravention applications.
Any other relevant fact or circumstance
Not relevant.
Parental responsibility
Whilst none of the parties ultimately proposed an order for equal shared parental responsibility, it is nevertheless presumed that such an order is in the children’s best interests.[55] The extensive litigation between these parties in the nine and half years since their separation is demonstrative of an inability for the parties to comply with the mandatory requirements of section 65DAC of the Act.[56] Their intractable conflict is inconsistent with a capacity to comply with that statutory obligation.[57] I accordingly find the presumption to be rebutted, as it is not in the children’s best interests for their parents to have equal shared parental responsibility for the children.[58]
[55] Family Law Act 1975 (Cth), s 61DA; Goode & Goode (2006) FLC 93-286 at [51].
[56] Tibb & Sheean (2018) 58 Fam LR 351 at [70] per Murphy & Cronin JJ.
[57] Manifold & Alderton (2021) FLC 94-015 at [109].
[58] Family Law Act 1975 (Cth), ss 61DA(4).
Consent Orders have been pronounced providing for Mr Cousins to have sole parental responsibility for the children. It is accordingly unnecessary to consider whether the children spending equal time or substantial and significant time with each of their parents is in their best interests and reasonably practicable.
It is Ms Peake’s application that not all previous orders be discharged. In particular, she seeks that interim Orders continue for Y’s “application and enrolment at [R School] and his continuing education by consent at [S School].” Although those Orders are not themselves styled to be interim Orders, they were made at a review of a determination of interim parenting applications on 5 August 2022. Ms Peake’s application in its current form will not achieve the result she seeks. Whether I expressly discharge previous interim orders or not, they are automatically discharged upon this final determination of the proceedings.[59]
[59] Federal Circuit and Family Court of Australia Rules 2021 rule 5.01; Keskin & Keskin & Anor (2019) FLC 93-932 at [31] and the cases there cited.
The result Ms Peake seeks could only be achieved by now making final Orders in the same terms as the interim Orders. I take that to be her application. The apparently relevant interim Orders that have been pronounced are as follows:
3. The child [Y] born [in] 2010 (“[Y]”) attend [S School] from the commencement of 2023 if he is provided with a firm offer of enrolment by that school.
…
5. The parties do all acts and things required to facilitate [Y] applying for and, if offered enrolment, attending [R School] from year 9.[60]
[60] Orders made 5 August 2022, paragraphs 3 and 5.
Inconsistently with her current position, Ms Peake’s earlier conduct has impeded the children attending upon their ordered education. Mr Cousins gives unchallenged and uncontradicted evidence that Ms Peake attempted to sabotage Y’s enrolment at S School “by contacting the school registrar and other administrators to tell them that he was ineligible, alienating me as the Father with personal attacks, and confusing the school preferences and her non‑participation in approving any potential offer.”[61] I accept his evidence.
[61] Affidavit of Mr Cousins filed 30 June 2023, paragraph 30.
Mr Cousins also gives evidence that Ms Peake’s disruption and sabotage caused Y to lose the opportunity to test for a Select Entry Accelerated Leaning class in accordance with interim Orders of this Court. In particular, he deposes that Ms Peake “indicated twice in writing (24 July 2023 & 25 July 2023) that she would pay for the exam and bring him to [S School] SEAL test, only to change course after the deadlines were missed”.[62] I also accept that unchallenged evidence.
[62] Affidavit of Mr Cousins filed 30 June 2023, paragraph 32.
Ms Peake’s position is that Mr Cousins ought generally have sole parental responsibility for both children. In effect she seeks to fetter that parental responsibility by the remaking of previous Orders in relation to Y’s enrolment. Y is currently in Year 7. Assuming he completes Year 12, he has a further five full years of schooling ahead of him. The making of the orders sought by Ms Peake will mean that he cannot change schools in those five years without Mr Cousins making a further application to the Court in the absence of agreement between the parties. The children have been subjected to extensive litigation throughout their lives. Even Ms Peake acknowledged the importance of that litigation concluding upon the determination of these proceedings. I do not find it to be in the children’s best interests for orders to be made that increase the likelihood of future litigation between the parties. I accept Mr Cousins’ unchallenged evidence that “any negotiation on behalf of the children and their best interests is quite simply impossible” with Ms Peake.[63]
[63] Affidavit of Mr Cousins filed 30 June 2023, paragraph 35.
Further, I have found Mr Cousins to generally have a far superior capacity to provide for the children’s needs and a markedly superior attitude to the responsibilities of parenthood. Given the agreed position that he is best placed to make all other decisions about major long term issues affecting the children, I have no basis to doubt that any educational decisions he makes for Y, will be in his best interests. I find no basis to fetter that decision-making responsibility as sought by Ms Peake.
Ms Peake also seeks an order in the following terms:
The Father do all acts and things to Specialist Paediatric Endocrinologist review appointments annually for the children.[64] (as per original)
[64] Exhibit A1, paragraph 11(b).
Ms Peake sought to explain that what she sought was for Mr Cousins to obtain a referral from a general practitioner for such reviews to occur each year. She was non responsive to the Court’s question of what happens if the general practitioner refuses to provide such a referral. Implicit in the relief sought is a suggestion that Mr Cousins will fail to obtain necessary medical assessment or treatment for the children. I reject the inference. I find no basis upon which to conclude that Mr Cousins will neglect to obtain necessary or recommended medical attention for the children. Further, such an order is likely to contribute to further disputation between the parties. I conclude that the relief sought by Ms Peake is not in the children’s best interests.
Conclusions
It is Ms J’s recommendation that the Court consider Y spend time with Ms Peake “in line with the current arrangement”.[65] That current arrangement is consistent with Mr Cousins’ and the Independent Children’s Lawyers’ proposal. Ms Peake seeks Y spend additional time with her, which is accordingly not supported by Ms J.
[65] Family Report, paragraph 85.
I am, of course, not bound by the opinion of an expert witness, and I am required to consider and give appropriate weight to the totality of the evidence presented.[66] However, such evidence, if suitably qualified and based on appropriate foundation, will carry substantial weight.[67] The failure to follow the recommendation of an expert generally requires some explanation, and a demonstration that the matters raised have been properly taken into account.[68]
[66] Grier & Grier (2023) FLC 93-135 at [88]; Maclean & Greenwood (2022) FLC 94-117 at [33]; Carter & Wilson (2023) FLC 94-129 at [50] per Bennett J; Reeves & Grinter [2017] FamCAFC 19 at [15].
[67] Muldoon & Carlyle (2012) FLC 93-513 at [105] and the cases there cited.
[68] Vigano & Desmond (2012) FLC 93-509 at [87] and the cases there cited.
Ms Peake’s submissions did not engage with Ms J’s recommendations nor the basis for them. I accept Mr Cousins’ submission that the Family Report is totally explanatory of the dynamics of this family. I also agree with his submission that it is an excellent Family Report. I find no basis to give it reduced weight.
I conclude that the children’s best interests are served by Y continuing to spend time with Ms Peake in accordance with the existing alternate weekend arrangements. I am not satisfied that his best interests are met by extending that alternate weekend time, or providing for extended time during school holidays. I am unable to conclude that such extended time would be beneficial and advantageous to him.
Ms Peake seeks an order that she be permitted to travel overseas with Y. Given my conclusion that Y spending extended holiday time with her is not in the children’s best interests, there will simply be no opportunity for Ms Peake to travel overseas with Y during the ordered time with him. For that reason, I also conclude that her application for overseas travel is not in the children’s best interests.
In considering the parents’ attitude to the responsibilities of parenthood, I have articulated the reasons for my conclusion that it is in the children’s best interests for Ms Peake to be restrained from sending more than one email to the children’s schools and/or extra-curricular activity providers.
VEXATIOUS PROCEEDINGS
Mr Cousins and the Independent Children’s Lawyer jointly apply for a vexatious proceedings order pursuant to Part XIB of the Act.
Pursuant to section 102QB of the Act, I relevantly have a discretion to make an order prohibiting Ms Peake from instituting proceedings, or proceedings of a particular type, under the Act if I am satisfied that she has “frequently instituted or conducted vexatious proceedings in Australian courts or tribunals”.[69] I am entitled to have regard to proceedings “instituted (or attempted to be instituted) or conducted”[70] therein. The adjective “frequently” imports a relatively low threshold. Both the quality of the vexatiousness of the proceeding and its nature inform the assessment of frequency.[71]
[69] Family Law Act 1975 (Cth) s 102QB(1)(a).
[70] Family Law Act 1975 (Cth) s 102QB(6)(a).
[71] Potier v Attorney General (NSW) (2015) 89 NSWLR 284 at [114], [115] and [118], quoted with approval in Pencious & Searle (2017) FLC 93-805 (“Pencious & Searle“) at [73].
Pursuant to section 102Q of the Act, vexatious proceedings are defined to include:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Proceedings in relation to courts and tribunals include “an incidental proceeding in the course of or in connexion with a proceeding”.[72]
[72] Family Law Act 1975 (Cth), ss 4(1), ss 102Q.
The relief sought is extreme, depriving as it does, every citizen’s ordinary right to recourse to legal remedies.[73]
[73] Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (“OTiB v Gargan (No 2)”) at [2], quoted with approval in Pencious & Searle at [75].
Ms Peake has long been on notice of the possibility that a vexatious proceedings order may be made against her. In December 2018, Justice Cronin determined several applications between the parties. His Honour observed as follows:
…having heard and determined this multi-faceted dispute, it is evident to me that the mother is obsessive about issues that should have been resolved a long time ago and vindictive towards the father. She described her pathway as “seeking justice”, but in reality, she wastes an enormous amount of time which the Courts have to provide, but they do so at the expense and delay to other litigants. The Judges next hearing the foreshadowed proceedings (including the Full Court proceedings) might contemplate the use of s 102QB(3) of the Family Law Act 1975 (Cth) (“the Act”) to stop this waste of Court time.
The parenting and associated dispute has to be seen in the context of final parenting orders that the parties consented to, and requested the Federal Circuit Court to make, on 13 October 2015. The finality of those orders did not last long.
Since 2015, and particularly in 2018, there have been a number of hearings, most of which feature in these reasons. A fair reading of the judgments shows that the mother is at best misguided and, at worst, obsessive to the point of malevolence.[74]
[74] Peake & Cousins (No 2) [2018] FamCA 1056 (“Peake & Cousins (No 2)”) at [3]–[5].
On 17 February 2022, whilst representing himself, Mr Cousins filed an Application in a Proceeding seeking, amongst other things, that Ms Peake be “declared a vexatious litigant”.[75] Whilst that application was inaccurately described as an application for interim relief,[76] it again drew Ms Peake’s attention to the prospect of such an application being made.
[75] Application in a Proceeding of Mr Cousins filed 17 February 2022, paragraph 11.
[76] Family Law Act 1975 (Cth), ss 102QB(5).
Whilst Mr Cousins’ and the Independent Children’s Lawyer’s applications were not formally made until the fourth day of this final hearing, the potential for such applications was drawn to Ms Peake’s attention from the first day of trial. Due to the trial not being concluded in the allocated time, an adjournment of four days occurred between the fourth and fifth days of trial. Ms Peake addressed the Court in relation to the application on the fifth hearing day,[77] and I am satisfied that Ms Peake had ample time to respond to the application. She sought no adjournment of the application. Further, by the conclusion of the fourth day of hearing, both Mr Cousins and the Independent Children’s Lawyer had clearly articulated the totality of the proceedings relied on for the purpose of the application.[78]
[77] Family Law Act 1975 (Cth), ss 102QB(4).
[78] Pencious & Searle at [141].
Current Parenting Proceedings
Ms Peake initiated these proceedings in 2021. She gave oral evidence: “I have always believed that I would lose.” When she was asked about her continued prosecution of her application she gave evidence that “I don’t believe it has been in [the children’s] best interests in the last few months”. What follows is that Ms Peake prosecuted proceedings, not only that she believed she would lose, but also proceedings that she believed to be contrary to the children’s best interests. The paramount consideration in these proceedings is those very best interests. Her prosecution of the proceedings is accordingly improper in the sense of being for a purpose other than that for which the proceedings are designed and exist.[79]
[79] SCVG (2020) FLC 93-967 at [44] and the case there cited.
Despite giving evidence on the second day of hearing that “I really don’t want to prosecute [the proceedings] anymore”, Ms Peake did not withdraw her application. The trial thereafter continued on the basis of a further amended application by her. So much was a continuation of the prosecution of these proceedings for an improper purpose.
Ms Peake has made an extensive number of applications within the current proceedings. Aside from her Initiating Application seeking final orders and the various amendments of that application, she has filed 7 Applications in a Proceeding and 2 Applications for Review. She seeks to justify many of those steps by an assertion that they were merely procedural applications. Even if that were so, procedural steps in the course of properly instituted proceedings are still capable of being an abuse of the Court’s process.[80] Here, those incidental applications were made in proceedings that were improperly prosecuted. They are accordingly vexatious in the relevant sense.
[80] Rogers v The Queen (1994) 181 CLR 251 at 286 per McHugh J, quoted in Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 at [15] per Gleeson CJ, Gummow, Hayne & Crennan JJ.
Contempt Applications
Ms Peake has initiated and prosecuted a multitude of contempt applications under the Act. Tellingly, Justice Cronin made the following observation in December 2018:
In addition to the parenting dispute that culminated in the orders of 13 October 2015, there have also been proceedings in the Federal Circuit Court in relation to child support issues and an appeal by the mother against orders made in that court. The Full Court dismissed the mothers appeal. The mother recently sought to “re-open” the child support issue in the Full Court. Strickland J dismissed her application on 3 December 2018. The mother had then lodged a contempt application against the father in this Court which relates to his lack of discovery and “perjury” in the Federal Circuit Court. That application should have been in the Federal Circuit Court if it had some prospect of success. The supporting material I have read shows little apparent prospect having regard to the authorities in respect of contempt. The mother withdrew the contempt application only to indicate she will re-issue it in the Federal Circuit Court.[81] (emphasis added, footnotes omitted)
[81] Peake & Cousins (No 2) at [7].
On 20 December 2018, Ms Peake re-filed the contempt application referred to by his Honour as having little apparent prospect of success. Despite several opportunities to withdraw the application, Ms Peake continued to prosecute it. It was dismissed as it did not disclose a prima facie case.[82] I am satisfied it was instituted and pursued without reasonable ground. That it was prosecuted despite the lack of merit identified by Justice Cronin some four years prior, with the consequential delay to the determination of Ms Peake’s own parenting application, suggests it was brought for a wrongful purpose. I am satisfied it was a vexatious proceeding.
[82] Cousins & Peake (No 2) [2022] FedCFamC2F 1660 (“Cousins & Peake (No 2)”).
Ms Peake prosecuted a contempt application against Mrs Cousins for allegedly failing to comply with a subpoena. Ms Peake adduced no evidence of what steps she had taken to enforce the subpoena. It was also dismissed for a lack of prima facie case. [83] It was prosecuted without reasonable ground and was accordingly vexatious.
[83] Cousins & Peake (No 2).
Ms Peake also prosecuted a contempt application against Mr Cousins for contraventions of orders and an alleged breach of section 121 of the Act. Again, the application was dismissed for a lack of prima facie case.[84] It was also prosecuted without reasonable ground and was also accordingly vexatious.
[84] Cousins & Peake (No 2).
On 16 December 2022, Ms Peake lodged an appeal against the Orders dismissing her Contempt Applications. She failed to comply with directions for the filing of material in that application with the result that it was dismissed.
Ms Peake has made other Contempt Applications. On 1 July 2022, she filed a Contempt Application against Ms Hams alleging the following:
As an officer of the court under the Legal Profession Uniform Law Application Act 2014 (Vic), and in her professional obligations under s68LA of the Family Law Act 1975 (C’th) as the ICL, despite possessing prior knowledge, Ms Kristy Hams fails to bring it to the attention of the Honourable Court the Respondent Father’s intentions to contravene the Order 9(a) of the Federal Circuit Court and Family Court of Australia Court Orders 23 May 2022 of the Senior Judicial Registrar to restrict the Applicant Mother to time to be spent with the child, [X].
As an officer of the court under the Legal Profession Uniform Law Application Act 2014 (Vic), and in her professional obligations under s68LA of the Family Law Act 1975 (C’th) as the ICL, despite possessing prior knowledge, Ms Kristy Hams fails to bring it to the attention of the Honourable Court the Respondent Father’s intentions to allegedly contravene the Order 10(a) of the Federal Circuit Court and Family Court of Australia Court Orders 23 May 2022 of the Senior Judicial Registrar to not collect the child, [Y], pursuant to the abovementioned orders.
As an officer of the court under the Legal Profession Uniform Law Application Act 2014 (Vic), and in her professional obligations under s68LA of the Family Law Act 1975 (C’th) as the ICL, Ms Kristy Hams conspires with the Respondent Father to allegedly contravene Order 11(a) of the Federal Circuit Court and Family Court of Australia Court Orders 23 May 2022 of the Senior Judicial Registrar for the child, [Y] to spend part of his birthday [in] 2022 with the Applicant Mother.
As an officer of the court under the Legal Profession Uniform Law Application Act 2014 (Vic), the ICL, Ms Kristy Hams misled the court in the filing of her subpoena to Victoria Police for the Respondent Father’s alias names, “[Mr Cousins]”.
It can readily be observed that the failure by one party to bring something to the Court’s attention could hardly ever be seen as a contempt of Court, particularly when other parties have an opportunity to bring matters to the Court’s attention themselves. To use Mr Cousins’ name on a subpoena is also incapable of being characterised as contemptuous. To allege a conspiracy between Mr Cousins and Ms Hams is a most extraordinary allegation. Nevertheless, Ms Peake declined to prosecute her application. It was an application that caused harassment and annoyance and was brought without any apparent reasonable basis. It was vexatious. That it was subsequently discontinued does not alter that characterisation.
Not only were Ms Peake’s multiple contempt applications prosecuted without reasonable ground, they had the consequence that these proceedings were delayed. She sought to explain her decision in an email to the Court dated 2 August 2022. That email included the following representations, clearly reflecting her pursuit of the contempt applications for purposes other than for which the proceedings are designed and exist, thereby comprising an abuse of process:
This Honourable Court has unreasonably delayed my access to justice by delaying the setting of a trial date for the original Contempt Applications. It has denied my human rights to be judged by a fair, impartial and competent court. Justice is never stale.
This Honourable Court has turned a blind eye to wilful disobedience of its authority and erosion of public confidence with its bias and prejudice, despite multiple Royal Commissions and Law Reforms. My children will be adults in a very short time, yet my association with this Honourable Court may continue for many years if I choose to work in its jurisdiction. Hence it is my duty to agitate for continual change for the best interests of other children who may come before this Honourable Court.
The Contempt Applications are also to agitate for change in this Honourable Court, especially in relation to statutory obligations of the ICL and as a court officer under her legal board registration to not mislead the court and to comply with her statutory obligations.
I understand that my intention to prosecute the Contempt Applications will delay the parenting proceedings.[85] (emphasis added)
[85] Exhibit ICL13.
Consistent with Ms Peake viewing the proceedings as being of significance for unrelated parties, she posted the following on Facebook:
For the parents who are going through high conflict custody battles, [Ms Peake] is more than happy to render free advice on her own experience and on how to draft affidavits, file subpoenas and applications and most importantly share strategies and tactic….[86]
[86] Exhibit A6, page 74 of 96.
Contravention Application
As has been observed, the Court made final parenting Orders with Ms Peake’s consent in December 2019 providing for the children to live with Mr Cousins from January 2020. In February 2020, Ms Peake made a Contravention Application in relation to a three day period during which the children did not communicate with her. The cessation of their communication came immediately after the exchanges between Ms Peake and Y that have been quoted above in which Y expressed suicidal ideation at 9 years of age. Contrary to her evidence, I find that the interruption of the communication between Ms Peake and the children to have been entirely protective of them.
Ms Peake gave oral evidence that her application was “not appropriate”. The evidence supports a conclusion that the Application was vexatious in the sense of being instituted for a wrongful purpose or without reasonable ground. That Ms Peake subsequently withdrew the application does not affect its vexatious character.
VCAT proceedings regarding Dr G
In June 2023, Ms Peake made an application naming herself, Y and X as applicants in a suit brought against Dr G in VCAT. The claim sought a payment of $20,000, comprising “$3,900 report, $16,100.00 special damages, indemnity and compensatory damages”.[87] The problem is described in the application as “Breach of confidence and intent to breach contract, Breach of contract, Misleading or deceptive conduct”.[88] The problem is particularised as follows:
On or around February 2023, [Dr G] of [BB Centre] was consulted by Ms Kristy Ham of Southern Family Law as the Independent Children's Lawyer, to accept the brief to be the expert witness under Rules 7 (1) of the Family Law Rules 2021, for final trial on 17 - 19 July 2023 in the the [sic] family law proceeding MLC4941 /2014 [Cousins] v [Peake]. [Dr G] accepted the brief with its full legal and statutory obligation as the expert witness to attend final trial for the intention of cross examination. However, subsequent to the acceptance of the brief and full payment, [Dr G] proceeded to organise to be absent from Australia for the entire month of July 2023 with wilful intent to breach the contract of service and/or allegedly fraudulently accepted the brief fully knowing in advance that he would be absent from Australia and this would not be able to fulfill his legal and statutory obligations to attend final trial as the expert witness at final trial on 17 - 19 July 2023.[89] (emphasis added)
[87] Exhibit ICL 4, page 4.
[88] Exhibit ICL4, page 3.
[89] Exhibit ICL 4, pages 4–5.
The terms of the application are extraordinary. Ms Peake alleges that Dr G taking a holiday is somehow fraudulent. She conceded in oral evidence that she made the application before a cause of action even existed. Not only did it have no basis when it was made, it did not subsequently acquire one. Dr G was available to give evidence remotely during the scheduled final hearing. Ms Peake also conceded that she named the children as applicants contrary to their best interests.
The application was made by Ms Peake without reasonable ground, in a way that suggests seeking to harass, annoy, cause delay, or detriment. It also is a vexatious proceeding.
Conclusions
In December 2018, Justice Cronin observed as follows:
The court file itself indicates the problematic nature of the parties relationship in that there are over 170 documents contained in a box, all relating to hearings which number somewhere between 15 and 20 over the space of three years.[90]
[90] Peake & Cousins (No 2) at [10].
The court file now requires four boxes to contain it and includes in excess of 300 documents. Since December 2018, there appears to have been in the vicinity of 40 days on which the matter has been before the Court. The preponderance of those Court events have been the result of applications of one sort or another made by Ms Peake. They have deprived other litigants of the opportunity to have their matters heard.
Rather than retreating since Justice Cronin’s determination, Ms Peake has taken strident steps forward to continue to litigate and re-litigate dispute after dispute. As Mr Cousins submits, she appears to be unable to take a step backwards, nor reflect on the impact of her conduct on the people around her, most significantly in this context, her very own children and their father.
I have not relied on a multitude of other applications Ms Peake has initiated, which appear, on the evidence before me, may properly also be described as vexatious. Those matters comprise four other VCAT applications and several Magistrates Court proceedings. Tellingly, Ms Peake considered them all to be “with regards to the children”. To the credit of both the Independent Children’s Lawyer and Mr Cousins, forensic decisions were made to limit the number of applications formally relied on in support of the application.
On the basis of the proceedings to which I have referred, I am amply satisfied that Ms Peake has frequently instituted and conducted vexatious proceedings in Australian courts and tribunals. The discretion to grant the relief sought is accordingly available. The considerations relevant to its exercise are unconfined.[91]
[91] OTiB v Gargan (No 2) at [12].
Justice Perram has observed that “although the ways in which unreasonable grounds may manifest themselves are myriad, one form to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters”.[92]
[92] OTiB v Gargan (No 2) at [7].
Ms Peake’s conduct during this trial repeatedly demonstrated her failure to accept the finality of any determination. She repeatedly sought to re-agitate procedural rulings that had been made by the Court. Her submissions made repeated complaints about earlier judicial determinations.
More fundamentally, Ms Peake has failed to recognise the finality of the previous parenting proceedings, including those concluded by way of final Orders made in December 2019. She made this representation to one of the children’s schools by email on 27 February 2021:
I raised [X] and his brother [Y] by myself as a single mother until 2020. We had final court parenting orders in 2015 (attached below) and the boys lived with me full time.
The consent court orders of 2019 is very new and fresh due to our need for me to rebuild quicker for the boys' future financial security after protracted family court litigation initially for custody when the boys were so young ([X] 5 and [Y] 3) and then recently to relocate them to the USA with me. We see it as as interim until [X] and [Y] can decide for themselves as the court did not listen to their expressed wishes during the proceeding.[93] (as per original, emphasis added)
[93] Exhibit ICL 2.
Ms Peake expressed during her cross-examination on the second day of trial an intention to withdraw her application. She was afforded an opportunity to obtain legal advice with respect to that intention. She did not do so, instead seeking to amend her application. So much undermines my confidence in her evidence that she would accept the finality of these proceedings and conclude peripheral litigation. Also contrary to her assertion, she indicated an intention to commence proceedings in the Supreme Court of Victoria against Victoria Police for their actions arising from Intervention Orders between the parties.
If indeed Ms Peake adheres to her stated intention of accepting the finality of these proceedings, then the relief sought against her will have no work to do. If, however, she attempts to commence further proceedings, the relief will have the effect of her requiring leave to do so.[94] So much will preserve finite judicial resources and protect Mr Cousins from the endless unmeritorious litigation which he has endured for years. Most importantly, it will shield X and Y from further litigation. As Ms J observes:
…. for the majority of their childhood, the children have experienced significant parental discord and lengthy conflict between the parents. Long term exposure to parental conflict may contribute to the long term impact upon the children’s emotional and psychological well-being as they continue through their adolescences and into adulthood. This can be shown through an increased risk to their educational attainment, ability to socialise with others as well as their own mental health. Both parents have identified that the children are already displaying signs of anxiety and whilst this may be caused by various reasons, in part it is likely as a result of the ongoing parental conflict and litigation. [Y]’s presentation during his interview was concerning with a sense that he did not wish to talk about the current family dynamics and [X]’s own recognition of socialisation difficulties may both indications of such impacts.[95]
[94] Family Law Act 1975 (Cth) s 102QE.
[95] Family Report, paragraph 69.
Dr G also emphasises the importance, not only to Ms Peake’s mental health, but also to the welfare of the children, of the proceedings being brought to an end. The Court should accede to Mr Cousins’ plea to “end this nearly 10-year nightmare for my family, but especially, for these two children”.[96] Ms Peake also gives evidence that the children are being dragged through a nightmare, although she misattributes it to Mr Cousins’ actions. As Mr Cousins says, it is long overdue that all of this ends “so that these two children can finally start to heal”.[97]
[96] Affidavit of Mr Cousins filed 30 June 2023, paragraph 51.
[97] Affidavit of Mr Cousins filed 30 June 2023, paragraph 51.
I am satisfied Ms Peake’s vexatious conduct warrants the extreme relief now jointly sought by both Mr Cousins and the lawyer appointed to represent her children’s best interests. As the Independent Children’s Lawyer submits, in the event Ms Peake seeks leave to institute further proceedings, in order to protect the children’s primary carer, any such application should not be served on Mr Cousins unless leave is granted.
I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 31 July 2023
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