PEAKE & COUSINS - [2018] FamCAFC 241

FAMILY COURT OF AUSTRALIA

PEAKE & COUSINS

[2018] FamCAFC 241

FAMILY LAW – APPLICATIONS IN AN APPEAL – Expedite appeal hearing – Review decision of appeal registrar – Extension of time to file notice of appeal – Where the applicant indicated that she wished to withdraw these applications – Applications dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Reopen Appeal – Where the applicant seeks to reopen the hearing of an appeal alleging fraudulent suppression of evidence, contravention of full and frank obligations of disclosure, perjury and contempt of court by the respondent in the lower court – Where the application heard by this Court was for leave to appeal – Where the application was dismissed on the basis that there was no merit in the grounds of appeal which formed the basis on which leave to appeal was sought – Where the application is misconceived – Where there is no basis to reopen the hearing of the appeal for the reasons proffered by the applicant – Where the matters being raised by the applicant are matters for the lower court – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Peake

RESPONDENT:

Mr Cousins

FILE NUMBER:

MLC

4941

2014

APPEAL NUMBERS:	SOA	103	of	2016
SOA	55	of	2018
SOA	70	of	2018

DATE DELIVERED:

3 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

3 December 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

Family Court of Australia

LOWER COURT JUDGMENT DATE:

9 November 2016

31 July 2018
2 July 2018

LOWER COURT MNC:

[2016] FCCA 2856
[2018] FamCA 671
[2018] FamCA 496

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person by telephone link

Orders

The Application in an Appeal filed on 24 September 2018 in appeal no. SOA 70 of 2018 be dismissed.
The Applications in an Appeal filed on 24 September 2018 and 25 September 2018 in appeal no. SOA 55 of 2018 be dismissed.
The Application in an Appeal filed on 25 October 2018 in appeal no. SOA 103 of 2016 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Numbers: SOA 103 of 2016, SOA 55 of 2018 and SOA 70 of 2018
File Number: MLC 4941 of 2014

Ms Peake

Applicant

And

Mr Cousins

Respondent

EX TEMPORE REASONS FOR JUDGMENT

There are a number of Applications in…

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.

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Details

AGLC: PEAKE & COUSINS [2018] FamCAFC 241
Case: [2018] FamCAFC 241
Decision Date: 3 December 2018

CaseChat Overview and Summary

The matter before the court involved three applications by the appellant, seeking various reliefs in relation to ongoing family law proceedings. The applications were made in relation to appeals lodged in the Supreme Court of South Australia. The first application sought an expedited hearing of the appeal, a review of a decision by the appeal registrar, and an extension of time to file a notice of appeal. The second and third applications sought to reopen the hearing of the appeal, alleging fraudulent suppression of evidence, contravention of full and frank disclosure obligations, perjury, and contempt of court by the respondent in the lower court.

The court was required to determine whether the applications should be dismissed. The appellant had indicated that she wished to withdraw the applications for an expedited hearing and the review of the registrar's decision, but the court nonetheless considered the merits of the applications. The court also needed to assess whether the application to reopen the hearing of the appeal was misconceived, and whether the matters raised by the appellant were matters for the lower court.

The court found that the applications were misconceived and dismissed them. The court noted that the appellant had indicated a wish to withdraw the applications for an expedited hearing and the review of the registrar's decision. However, the court still considered the merits of the applications and found that there was no merit in the grounds of appeal which formed the basis on which leave to appeal was sought. The court also found that the application to reopen the hearing of the appeal was misconceived, as the matters being raised by the appellant were matters for the lower court. The court dismissed all three applications, and noted that the form of the orders was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The Application in an Appeal filed on 24 September 2018 in appeal no. SOA 70 of 2018 be dismissed.

The Applications in an Appeal filed on 24 September 2018 and 25 September 2018 in appeal no. SOA 55 of 2018 be dismissed.

The Application in an Appeal filed on 25 October 2018 in appeal no. SOA 103 of 2016 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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