Peake and Cousins (No. 2) - [2018] FamCA 1056

FAMILY COURT OF AUSTRALIA

PEAKE & COUSINS (NO. 2)

[2018] FamCA 1056

FAMILY LAW – CHILDREN – Contravention – where both parties, as litigants representing themselves, bring allegations of breaches of orders – where the Applicant alleges breached that relate to incidents from some years before – abuse of process – where respondent is denied electronic communication without reasonable excuse as applicant leaves the children responsible for effecting the communication – breaches proved.

FAMILY LAW – JUDGMENTS – Stay – where Judge recuses herself after making orders and transfers application for stay pending appeal to Case Management Judge – where there is no basis to grant the stay.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Federal Circuit Court Rules 2001 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Cousins & Peake [2018] FamCA 671
Cousins & Peake (No. 2) [2018] FamCA 729
Neil v Nott [1994] HCA 23; 68 ALJR 509; 121 ALR 148
Peake & Cousins [2018] FamCA 496
Peake & Cousins [2018] FamCAFC 241
Peake & Cousins [2017] FamCAFC 181
Peake & Cousins [2016] FCCA 2856
R v Nicholson [1951] VLR 273
Walters & Carson [2017] FamCAFC 128

APPLICANT:

Ms Peake

RESPONDENT:

Mr Cousins

INDEPENDENT CHILDREN’S LAWYER:

Southern Family Law

FILE NUMBER:

MLC

4941

2014

DATE DELIVERED:

12 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

13-14 November and 7 December 2018

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Southern Family Law

Orders

7 DECEMBER 2018

The comprehensive reasons for judgment arising from the orders that follow this day, be published as soon as possible.
MS PEAKE sign a bond within the meaning of section 70NEC of the Family Law Act 1975 (Cth) (“the Act”) to be executed in front of a Registrar of this Court by no later than 4:00 pm on Friday, 14 December 2018.
If Ms Peake, declines to execute the said bond, the Registrar report to the Court to that effect, and the matter be relisted for further hearing as soon as practicable.
In relation to the contravention application in which the respondent is MR COUSINS, the two allegations prosecuted by the applicant MS PEAKE are found proved but dismissed as of minimal significance and not appropriate to apply any of the exercise of power set out in section 70NED of the Act.
In respect of the remaining interim applications before the Court, the matters are adjourned to a date to be fixed and judgment is reserved to be published as quickly as possible.

12 DECEMBER 2018

Save as to the specific orders mentioned hereafter, the application in a case filed by the mother on 7 August 2018 (as amended on 28 August 2018) is dismissed.
The appealed orders of the Honourable Justice Bennett (paragraphs 7, 8 and 20) made on 31 July 2018 are stayed until the determination of the…

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 (No. 2)

Details

AGLC: Peake and Cousins (No. 2) [2018] FamCA 1056
Case: [2018] FamCA 1056
Decision Date: 12 December 2018

CaseChat Overview and Summary

In *Peake and Cousins (No. 2)*, Cronin J considered contravention applications brought by both Ms Peake (the applicant) and Mr Cousins (the respondent). Ms Peake alleged breaches of court orders by Mr Cousins, some relating to incidents from several years prior, and also raised issues of abuse of process. Mr Cousins also brought contravention allegations against Ms Peake.

The court was required to determine whether the contravention allegations brought by Ms Peake against Mr Cousins were proved, and if so, what orders should be made. It also had to consider Mr Cousins' contravention application against Ms Peake. Furthermore, the court dealt with an application for a stay of certain orders pending an appeal.

Cronin J found that two of Ms Peake's contravention allegations against Mr Cousins were proved, but dismissed them as being of minimal significance and not warranting the exercise of the court's powers under section 70NED of the *Family Law Act 1975* (Cth). The court also noted that Ms Peake had denied Mr Cousins electronic communication without reasonable excuse, leaving the children responsible for this communication. The contravention application brought by Mr Cousins against Ms Peake was dismissed. The court also addressed an application for a stay of orders made by Justice Bennett, which was granted until the determination of Ms Peake's appeal. Ultimately, most extant applications were transferred to the Federal Circuit Court.

Orders

Orders of the court

7 DECEMBER 2018

The comprehensive reasons for judgment arising from the orders that follow this day, be published as soon as possible.

MS PEAKE sign a bond within the meaning of section 70NEC of the Family Law Act 1975 (Cth) (“the Act”) to be executed in front of a Registrar of this Court by no later than 4:00 pm on Friday, 14 December 2018.

If Ms Peake, declines to execute the said bond, the Registrar report to the Court to that effect, and the matter be relisted for further hearing as soon as practicable.

In relation to the contravention application in which the respondent is MR COUSINS, the two allegations prosecuted by the applicant MS PEAKE are found proved but dismissed as of minimal significance and not appropriate to apply any of the exercise of power set out in section 70NED of the Act.

In respect of the remaining interim applications before the Court, the matters are adjourned to a date to be fixed and judgment is reserved to be published as quickly as possible.

12 DECEMBER 2018

Save as to the specific orders mentioned hereafter, the application in a case filed by the mother on 7 August 2018 (as amended on 28 August 2018) is dismissed.

The appealed orders of the Honourable Justice Bennett (paragraphs 7, 8 and 20) made on 31 July 2018 are stayed until the determination of the mother’s appeal.

The application in a case filed by the mother on 7 September 2018 is dismissed.

In respect of the contravention application of the mother against the father filed 28 August 2018:

(a) All allegations not pressed are struck out;

(b) Of the allegations pressed, (34), (43) and (45) are struck out;

(d) Allegations (30) and (31) are struck out for duplicity; and

(e) Allegation (22) is proved but dismissed as trifling.

The contravention application filed by the mother on 28 August 2018 is otherwise dismissed.

The contravention application filed by the father on 10 August 2018 is otherwise dismissed.

That pursuant to s33B of the Family Law Act 1975 (Cth) all extant applications (save for the stay application filed on 12 December 2018) are transferred to the Federal Circuit Court at Melbourne to be listed on a date to be advised.

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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