Peake & Cousins - [2023] FedCFamC1A 21

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Peake & Cousins [2023] FedCFamC1A 21

Appeal from: Cousins & Peake (No 2) [2022] FedCFamC2F 1660

Appeal number: NAA 260 of 2022

File number: MLC 4941 of 2014

Judgment of: AUSTIN J

Date of judgment: 7 March 2023

Catchwords: FAMILY LAW – APPEAL – Application in an appeal – Supplementary appeal book – Where the applicant seeks an extension of time to file – Where there can be no prejudice as the appeal book itself is not yet ready – Relief from transcript – Where the applicant inconsistently seeks both relief from the burden to file a transcript and an extension of time to comply – Where the applicant’s grounds of appeal are likely to be more easily assessed with the transcript available – Where the applicant is granted a 10 day extension to file both the transcript and the supplementary appeal book – Application otherwise dismissed.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.18, 13.22

Cases cited: Peake & Cousins (No.2) [2019] FamCAFC 95

Number of paragraphs: 19

Date of hearing: 7 March 2023

Place: Newcastle (via video link)

The Applicant: Litigant in person

The Respondent: Did not participate

The Independent Children's Lawyer: Did not participate

ORDERS

NAA 260 of 2022
MLC 4941 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS PEAKE

Applicant

AND:
MR COUSINS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

AUSTIN J

DATE OF ORDER:

7 MARCH 2023

THE COURT ORDERS THAT:
1.The time for the applicant’s compliance with Orders 2 and 4 made by the appeal registrar on 8 February 2023 is extended until 4.00 pm on Friday 17 March 2023.
2.Otherwise, the Application in an Appeal filed on 24 February 2023 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peake & Cousins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

The applicant is appealing from the orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 28 November 2022 dismissing the three contempt applications she brought against the respondent and ordering her to pay the costs of both the respondent and the Independent Children’s Lawyer (“the ICL”) in respect of the contempt applications.
On 8 February 2023, the appeal registrar made procedural orders which, relevantly, permitted and required the applicant to file and serve a supplementary contested…

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 [2023] FedCFamC1A 21
Case: [2023] FedCFamC1A 21
Decision Date

CaseChat Overview and Summary

The appeal in this matter was brought by Ms Peake, who was acting as a litigant in person. The appeal was against the dismissal of three contempt applications she had brought against Mr Cousins, and an order that she pay the costs of the respondent and the Independent Children’s Lawyer in respect of the contempt applications. The respondent did not participate in the appeal and the Independent Children's Lawyer did not participate in this matter. The appeal registrar had made orders which required the applicant to file a supplementary contested appeal book by 22 February 2023 and to email the digital transcript of the hearing to the appeal registrar by 1 March 2023. The applicant sought an extension of time to file the supplementary contested appeal book and to file the digital transcript. She also sought an order for the appeal registry to provide her with the digital transcript.

The primary legal issues in this appeal concerned whether the applicant could be granted an extension of time to file the supplementary contested appeal book and the digital transcript. The applicant had argued that she had been ill, which was the basis of her request for an extension of time. The court had to consider whether the applicant’s illness was sufficient to warrant an extension of time. The court also had to consider the applicant’s inconsistent requests for the appeal registry to provide her with the digital transcript and for an extension of time to file the transcript. The court had to consider whether the applicant had demonstrated exceptional circumstances that would warrant the court assuming the financial responsibility to acquire the transcript.

The court considered the applicant’s affidavit and the email correspondence between the applicant and the appeal registrar. The court found that the applicant’s illness was sufficient to warrant an extension of time to file the supplementary contested appeal book, as the appeal book itself was not yet ready and there would be no prejudice to the respondent and the Independent Children’s Lawyer if the filing was delayed. The court also found that the applicant had not demonstrated exceptional circumstances that would warrant the court assuming the financial responsibility to acquire the transcript. However, the court granted the applicant an extension of time to file the digital transcript. The applicant would have until 17 March 2023 to file both the supplementary contested appeal book and the digital transcript.

The court dismissed the applicant’s application in an appeal in all other respects. The court ordered that the time for the applicant’s compliance with Orders 2 and 4 made by the appeal registrar on 8 February 2023 was extended until 4.00 pm on Friday 17 March 2023. Otherwise, the application in an appeal filed on 24 February 2023 was dismissed.

Orders