Peake and Cousins - [2018] FamCA 496

FAMILY COURT OF AUSTRALIA

PEAKE & COUSINS

[2018] FamCA 496

FAMILY LAW – PRACTICE AND PROCEDURE – Application for expedition – Where the mother seeks her application be expedited – Application refused.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Ms Peake

RESPONDENT:

Mr Cousins

FILE NUMBER:

MLC

4941

2014

DATE DELIVERED:

2 July 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

Written Submissions in Chambers

REPRESENTATION

THE APPLICANT:

Self-represented

THE RESPONDENT:

Self-represented

Orders

The mother’s application for an expedited final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym < Peake & Cousins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4941 of 2014

Ms Peake

Applicant

And

Mr Cousins

Respondent

REASONS FOR JUDGMENT

The mother who is the applicant in the substantive proceedings makes an application seeking the expedition of the final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”).
On 2 May 2018 Registrar Sudholz made an order that all extant applications are adjourned to a date to be fixed before me to determine whether to expedite the final hearing. The orders also provided:
2.That by 4 pm on16 May 2018, the party seeking the expedited hearing file and serve a summary of argument in bullet point form, setting out the matters upon which the determination is to be made.
3.That within 7 days of receipt of the applicant’s summary of argument, the responding party, file and serve a document indicating his support of or objection to the application for expedition.
4.That all parties file the documents required by these orders by email to the Associate to the Honourable Justice Johns at …
…
6.That in the event the matter is not expedited it be adjourned to a date to be fixed before the Senior Registrar to determine the interim application, specifically the request for interim relocation in paragraph 4 of the Applicant’s application.
On 4 May 2018 the mother filed her summary of argument. That document is headed:-
APPLICATIONS for:
A. Expedited Abridgement Final Hearing for temporary International Relocation (non-immigration visas) to the USA with the children of the marriage,
B. Sole Parental Responsibility for all major long-term children’s issues,
I will not be considering the mother’s application for sole parental responsibility. The only application for determination by me pursuant to the orders of Registrar…

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 Peake and Cousins

Details

AGLC: Peake and Cousins [2018] FamCA 496
Case: [2018] FamCA 496
Decision Date: 2 July 2018

CaseChat Overview and Summary

In *Peake and Cousins*, heard by Johns J in the Federal Circuit and Family Court of Australia, the mother sought an expedited final hearing. The dispute concerned parenting arrangements for the parties' child.

The central legal issue before the court was whether the mother had satisfied the criteria for an expedited final hearing under rule 12.10A(1) of the *Family Law Rules 2004* (Cth). This rule permits the court to expedite a hearing in circumstances where there is a risk of harm to the child or a party, or where there are other compelling reasons.

Johns J dismissed the mother's application, finding that the threshold for an expedited hearing had not been met. The judge's reasoning focused on the absence of evidence demonstrating the necessary urgency or risk contemplated by rule 12.10A(1). The court applied the principles governing the exercise of discretion to expedite proceedings, requiring a clear and compelling case to be made out.

Orders

Orders of the court

The mother’s application for an expedited final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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