PEAKE & COUSINS - [2017] FamCAFC 181

FAMILY COURT OF AUSTRALIA

PEAKE & COUSINS

[2017] FamCAFC 181

FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT DEPARTURE – ENFORCEMENT – Where the applicant seeks leave to appeal orders discharging all previous departure orders providing for the payment of financial support for the children and orders for enforcement – Where the facts in support of the application are inadequate and it is necessary to consider the proposed grounds of appeal to determine if leave should be granted – Where although there is a denial of procedural fairness the circumstances are such that an order for a new trial would be futile – Where the other proposed ground is incompetent – Where there is no merit in either of the proposed grounds of appeal – Application for leave to appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent did not appear at the hearing and no application for costs has been made – Pursuant to r 22.53 of the Family Law Rules 2004 (Cth) the respondent has 28 days in which to file an application for any legal costs incurred.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth) ss 102A

Family Law Rules 2004 (Cth) r 22.53

Bahonko v Sterjov (2008) 166 FCR 415
Bass & Bass and Anor [2016] FamCAFC 64
Stead v State Government Insurance Commission (1986) 161 CLR 141

APPLICANT:

Ms Peake

RESPONDENT:

Mr Cousins

FILE NUMBER:

MLC

4941

2014

APPEAL NUMBER:

SOA

103

2016

DATE DELIVERED:

6 September 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

5 April 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 November 2016

LOWER COURT MNC:

[2016] FCCA 2856

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

No Appearance

Orders

The application for leave to appeal filed on 23 March 2017 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 Number: SOA 103 of 2016
File Number: MLC 4941 of 2014

Ms Peake

Applicant

And

Mr Cousins

Respondent

REASONS FOR JUDGMENT

Introduction

On 23 March 2017 Ms Peake (“the mother”) filed an Amended Notice of Appeal seeking leave to appeal, and if leave is granted, to appeal the orders made by Judge Bender on 9 November 2016. The application for leave and the appeal, if leave is granted, are opposed by Mr Cousins…

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 & COUSINS

Details

AGLC: PEAKE & COUSINS [2017] FamCAFC 181
Case: [2017] FamCAFC 181
Decision Date: 6 September 2017

CaseChat Overview and Summary

In this family law appeal, the applicant sought leave to appeal orders that had been made in the Family Court, discharging all previous orders for the payment of financial support for the children and enforcement of those orders. The applicant was appealing against the decision of a single judge of the Family Court who had dismissed the applicant's appeal against the orders. The primary judge had declined to grant leave to appeal and the applicant now sought leave from the Full Court to appeal that decision.

The legal issues in this case related to the grounds upon which the applicant sought leave to appeal and whether those grounds were sufficient to warrant the grant of leave. The applicant's grounds for appeal were that the primary judge had denied procedural fairness and that the orders were incompetent. The Full Court needed to consider whether these grounds were sufficient to warrant the grant of leave to appeal.

The Full Court found that the facts in support of the application were inadequate and that it was necessary to consider the proposed grounds of appeal to determine if leave should be granted. The Full Court found that although there was a denial of procedural fairness, the circumstances were such that an order for a new trial would be futile. Additionally, the Full Court found that the other proposed ground of appeal was incompetent. The Full Court found that there was no merit in either of the proposed grounds of appeal. Therefore, the application for leave to appeal was dismissed.

The respondent did not appear at the hearing and no application for costs had been made. Pursuant to rule 22.53 of the Family Law Rules 2004 (Cth), the respondent has 28 days in which to file an application for any legal costs incurred.

Orders

Orders of the court

The application for leave to appeal filed on 23 March 2017 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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