FAMILY COURT OF AUSTRALIA
| PEAKE & COUSINS | [2019] FamCAFC 55 |
| FAMILY LAW – APPEAL – Where the trial judge found the mother was in contravention of final parenting orders made by consent in October 2015 – Where the trial judge ordered the mother to attend a post-separation parenting program by way of penalty pursuant to s 70NEB(1)(a)(i) of the Family Law Act 1975 (Cth) – Where the trial judge also made interlocutory parenting orders in the substantive proceedings – Where many of the mother’s stated grounds of appeal were so lacking in particulars of the errors purportedly asserted as to not constitute proper grounds of appeal – Where the mother’s grounds of appeal were based primarily upon four central assertions of error – Where nothing to which the mother directed attention on appeal demonstrated appellable error on the part of the trial judge – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 60I, 69ZM, 69ZN, 69ZQ, 70NBA, 70NEB(1)(a)(i) Family Law Rules 2004 (Cth) rr 2.02, 7.03 |
| APPELLANT: | Ms Peake |
| RESPONDENT: | Mr Cousins |
| FILE NUMBER: | MLC | 4941 | of | 2014 |
| APPEAL NUMBER: | SOA | 55 | of | 2018 |
| DATE DELIVERED: | 27 March 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Kent, Watts & Austin JJ |
| HEARING DATE: | 27 March 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 July 2018 (amended 24 January 2019) |
| LOWER COURT MNC: | [2018] FamCA 671 |
REPRESENTATION
| THE APPELLANT: | In person (via video link) |
| THE RESPONDENT: | In person |
Orders
The mother have leave to file and rely upon her Amended Notice of Appeal and Amended Summary of Argument annexed to her affidavit filed 12 March 2019 and her Supplementary Appeal Book.
The appeal be dismissed.
There be no order as to costs of the appeal.
Note: The form of the order is subject to the entry of…
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- AGLC
- Peake and Cousins [2019] FamCAFC 55
- Case
- [2019] FamCAFC 55
- Decision Date
CaseChat Overview and Summary
The court had to decide if the mother's amended notice of appeal and summary of argument were filed within a reasonable time and if they provided sufficient grounds for the appeal to proceed. The court also considered whether the father would be prejudiced if the mother was allowed to amend her notice of appeal and summary of argument. The court had to balance the mother's right to appeal against the father's right to a fair trial.
The court found that the mother's amended notice of appeal and summary of argument were not filed within a reasonable time and did not provide sufficient grounds for the appeal to proceed. The court also found that the father would be prejudiced if the mother was allowed to amend her notice of appeal and summary of argument. The court held that the mother's amended notice of appeal and summary of argument did not raise any new issues or arguments that were not already considered by the primary judge. The court dismissed the mother's appeal and made no order as to the costs of the appeal.
Orders
Orders of the court
1.
The mother have leave to file and rely upon her Amended Notice of Appeal and Amended Summary of Argument annexed to her affidavit filed 12 March 2019 and her Supplementary Appeal Book.
2.
The appeal be dismissed.
3.
There be no order as to costs of the appeal.
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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