PEAKE & COUSINS
[2018] FamCAFC 241
•3 December 2018
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 | of | 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 |
| 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).
|
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 an Appeal before the court today filed by Ms Peake (“the applicant”). Three of those applications though the applicant has indicated that she wishes to withdraw, and I propose to formally dismiss those applications. They are the Application in an Appeal filed on 24 September 2018 in appeal no. SOA 70 of 2018, and the Applications in an Appeal filed respectively on 24 September 2018 and 25 October 2018 in appeal no. SOA 55 of 2018.
Mr Cousins (“the respondent”) has taken part in the hearing by way of telephone link from the United States.
The application left to deal with is an Application in an Appeal filed on 25 October 2018 in appeal no. SOA 103 of 2016. In that application the applicant seeks orders “to re-open the Appeal File SOA 103/2016 on the basis of fraudulent suppression of evidence, contravention of Full and Frank Obligations for Disclsoure (sic) and allegations of Perjury and Contempt of Court on the part of the Respondent”.
There is an affidavit in support of that application filed on the same date where general assertions are made, suggesting that there is new evidence which has come to light as a result of other proceedings, and which allegedly demonstrates that the respondent has, to use the terminology from the application, fraudulently suppressed evidence, contravened full and frank obligations for disclosure, and committed perjury and contempt of court, in the lower court.
In general terms the allegations relate to the respondent’s finances and financial position as presented to the court at first instance, whose orders were the subject of the appeal. Indeed it was an application for leave to appeal, and if leave was granted, an appeal against orders made by the primary judge, Judge Bender, on 9 November 2016, following the hearing of applications by the applicant in relation to child support.
The application for leave to appeal was heard by this Court, judgment was delivered on 6 September 2017, and the application for leave to appeal 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.
The applicant has also sought to file a further affidavit in support of the application to reopen. It is a lengthy affidavit which has not been accepted for filing by the court, but I have read the document in anticipation of an application by the applicant for leave to rely on that affidavit. What it does is provide the detail of the allegations made by the applicant in relation to the evidence that was presented to the primary judge, resulting in the orders of 9 November 2016.
The applicant has also sought today that the Application in an Appeal filed by her on 25 October 2018 be adjourned. The reasons for that are to enable her to file and serve the affidavit that I have just had regard to, secondly, as she put it, to provide procedural fairness to the respondent so that he will have time to address the allegations made in that affidavit as to his financial circumstances in the context of the evidence that was provided to the primary judge, and thirdly, because the applicant says she has filed, or is about the file, an application alleging contempt in the lower court in relation to these very same matters.
However, the application is misconceived and I propose to dismiss it, not adjourn it.
To repeat, the appeal was against orders made on 9 November 2016 by the primary judge, those orders relating to child support. The appeal has been heard and determined. There is no basis to reopen the hearing of the appeal for the reasons put by the applicant, namely her allegations in relation to the veracity of the evidence put before the primary judge by the respondent in relation to his financial circumstances.
Those matters are matters that the applicant has to raise with the lower court, not with the Appeal Court, and she has actually started that process by, as she tells me, filing an application alleging contempt.
I certify that the preceding eleven (11) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 3 December 2018.
Associate:
Date: 5 December 2018
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