FAMILY COURT OF AUSTRALIA
| PEAKE & COUSINS (NO. 2) | [2019] FamCAFC 95 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript by the Court – Where the Court may, in its exercise of discretion, agree to provide transcripts of relevant parts of evidence for use in an appeal – Where such discretion is only exercised in exceptional cases – Where Sampson & Hartnett (Provisions of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542 is considered – Where the appellant mother seeks that the Court carry the cost of providing the full transcript because of “financial stress” – Where the respondent agrees to the application in part – Where the Court considers the necessity of all or part of the transcript – Where the Court orders the Regional Appeal Registrar to procure and provide the parties with transcript of the first and third day of the hearing before the trial judge – Application otherwise dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Where the trial judge made two sets of orders to determine applications and the appellant mistakenly only appealed from one set of orders – Where the appellant seeks an extension of time to appeal from the second set of orders – Where the appellant seeks to consolidate appeals relating to the orders and use the appeal books already filed in the existing appeal – Where the respondent agrees to the application in part – Where leave is granted for the appellant mother to appeal out of time, but only in relation to particular orders – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the mother seeks leave to adduce fresh evidence in the existing appeal and to incorporate that evidence in a supplementary appeal book – Where the respondent opposes the application – Where the appellant seeks to adduce evidence relating to former proceedings and the respondent’s lack of credibility – Where the proposed evidence has no probative value – Where the Full Court only looks to whether there was error by the trial judge – Where the proposed evidence does not assist to vindicate the appellant’s appeal point that the trial judge conducted the proceedings unfairly by depriving her the opportunity to rely on that evidence – Application to adduce further evidence dismissed. |
| Evidence Act 1995 (Cth) ss 26(b), 29(1), 44(2), 45 Family Law Rules 2004 (Cth) r 22.18 |
| Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Sampson & Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542; [2010] FamCAFC 220 WJD & TEK (1998) 72 ALJR 1323; [1998] HCATrans 118 |
| APPELLANT: | Ms Peake |
| RESPONDENT: | Mr Cousins |
| FILE NUMBER: | MLC | 4941 | of | 2014 |
| APPEAL NUMBER: | SOA | 91 | of | 2018 |
| SOA | 28 | of | 2019 |
| DATE DELIVERED: | 4 June 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
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- AGLC
- Peake & Cousins (No 2) [2019] FamCAFC 95
- Case
- [2019] FamCAFC 95
- Decision Date
CaseChat Overview and Summary
The court had to decide on the mother’s requests for a transcript of the proceedings, an extension of time to appeal certain orders, and permission to adduce further evidence. The court exercised its discretion to order the provision of a transcript for specific days of the proceedings, granted leave for an extension of time to appeal particular orders, and dismissed the application to adduce further evidence. The court considered the necessity and probative value of the proposed evidence in relation to the grounds of appeal.
The court discharged certain orders made by the Regional Appeal Registrar and ordered the procurement and provision of a transcript of the first and third days of the proceedings before the trial judge. The court granted leave for the appellant to file an amended notice of appeal to include her appeal from specific orders but denied the request for an extension of time beyond a specified date for reliance on a transcript of a second day of proceedings. The court dismissed the application to adduce further evidence as it found the proposed evidence to lack probative value.
The court issued orders discharging certain previous orders, requiring the procurement and provision of specific transcripts, granting leave to file an amended notice of appeal with specific conditions, and dismissing the applications to extend time and adduce further evidence, with no order as to costs.
Orders
Orders of the court
1.
Orders 2(kk), 3(b), 3(c) and 3(d) made by the Regional Appeal Registrar on 8 March 2019 are discharged.
2.
The Regional Appeal Registrar shall forthwith procure and thereafter furnish to the parties in electronic format the transcript of the first and third days of the proceedings conducted before the trial judge on 13 November and 7 December 2018.
3.
In the event the appellant wishes to rely upon transcript of the second day of the proceedings before the trial judge on 14 November 2018 in the appeal, then she shall by Friday 21 June 2019:
(a) File a copy of the extra transcript upon which she relies by electronic mail; and
(b) Serve the respondent with the transcript by either electronic mail to his email address or by posting a hard copy to his postal address.
4.
Otherwise, the Application in an Appeal filed on 1 May 2019 is dismissed with no order as to costs.
5.
Leave is granted to the appellant to file an Amended Notice of Appeal by Friday 7 June 2019, so as to include her appeal from Orders 4, 5 and 6 made by Cronin J on 12 December 2018, but without amendment to the grounds of appeal which appear in her Amended Notice of Appeal filed on 8 May 2019.
6.
Otherwise, the Application in an Appeal filed on 23 May 2019 is dismissed with no order as to costs.
7.
The Application in an Appeal filed on 30 May 2019 is dismissed with no order as to costs.
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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