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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Cousins & Peake (No 3)

Details

AGLC: Cousins & Peake (No 3) [2023] FedCFamC2F 925
Case: [2023] FedCFamC2F 925
Decision Date

CaseChat Overview and Summary

The proceedings in the Federal Circuit and Family Court of Australia (Division 2) involved a parenting dispute between Mr Cousins and Ms Peake concerning their two children, X and Y. The case, Cousins & Peake (No 3), was heard by Judge Glass and resulted in comprehensive parenting orders and a vexatious proceedings order. The court determined that Mr Cousins should have sole parental responsibility for the children, with the children living with him. The court also ordered that X spend time and communicate with Ms Peake in accordance with his wishes, while Y was to have supervised weekend visits with Ms Peake and limited holiday time. The court further restrained Ms Peake from excessive communication with the children's schools and extra-curricular activity providers. Additionally, the court granted a vexatious proceedings order, prohibiting Ms Peake from instituting further proceedings without leave, due to her history of vexatious litigation. This decision aimed to protect the children from ongoing parental conflict and litigation.

Orders