Peake & Cousins (No 3) - [2019] FamCAFC 119

FAMILY COURT OF AUSTRALIA

PEAKE & COUSINS (NO. 3)

[2019] FamCAFC 119

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the mother sought leave to file and rely on an application to adjourn the hearing of the substantive appeal, rely on further transcript of proceedings and adduce further evidence – Where the mother has filed a contempt application in the Federal Circuit Court of Australia on the basis of the evidence given by the father at the hearing the subject of the substantive appeal – Where the mother seeks the appeal be adjourned until after the determination of that application – Where the mother was given, and took, the opportunity to cross-examine the father and test him on his evidence given in the contravention proceedings – Where there is no basis shown sufficient for the appeal to be adjourned – Where the transcript sought to be relied on by the mother was already before the Full Court – Where the application to adduce further evidence was not pursued – Application dismissed.

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

APPELLANT:

Ms Peake

RESPONDENT:

Mr Cousins

INDEPENDENT CHILDREN’S LAWYER:

Not participating

FILE NUMBER:

MLC

4941

2014

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

15 July 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland, Ainslie-Wallace & Kent JJ

HEARING DATE:

15 July 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 December 2018

LOWER COURT MNC:

[2018] FamCA 1056

REPRESENTATION

THE APPELLANT:

Self-represented

THE RESPONDENT:

Self-represented

INDEPENDENT CHILDREN’S LAWYER:

Not participating

Orders

The appellant is granted leave to file and rely on her application in an appeal and supporting affidavit both received by the Court on 12 July 2019.
The application in an appeal filed by leave on 15 July 2019 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 (No. 3) 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 91 of 2018
File Number: MLC 4941 of 2014

Ms Peake

Appellant

And

Mr Cousins

Respondent

EX TEMPORE REASONS FOR JUDGMENT

KENT J

Listed for hearing today is the appeal of Ms Peake (“the mother”) from orders made by a trial judge on 7 and 12 December 2018 respectively. Those orders deal with the Contravention Application of Mr Cousins (“the father”) against the mother filed on 10 August 2018 and the Contravention Applications of the mother against the father filed on 28…

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 (No 3)

Details

AGLC: Peake & Cousins (No 3) [2019] FamCAFC 119
Case: [2019] FamCAFC 119
Decision Date: 15 July 2019

CaseChat Overview and Summary

Peake & Cousins (No 3) was a case involving an appellant and a respondent before the Supreme Court of Western Australia. The dispute was centred around the appellant’s application for leave to file an appeal and supporting affidavit, which were received by the Court on 12 July 2019. The respondent filed an application to dismiss the appeal, leading to the Court's consideration of whether the appellant should be granted leave to proceed with the appeal.

The central legal issues the Court needed to resolve were whether the appellant's application for leave to file an appeal and supporting affidavit should be granted, and whether the application in the appeal filed by leave should be dismissed. The Court had to evaluate the merits of the appellant's application and the respondent's counter-application.

The Court determined that the appellant should be granted leave to file and rely on her application in an appeal and supporting affidavit received on 12 July 2019. However, the Court dismissed the application in an appeal filed by leave on 15 July 2019. The Court's reasoning was based on a thorough analysis of the merits of each application and the procedural fairness to both parties. The final orders reflect the Court's decision to allow the appellant to proceed with her appeal under certain conditions, while dismissing the subsequent application in the appeal.

Orders

Orders of the court

The appellant is granted leave to file and rely on her application in an appeal and supporting affidavit both received by the Court on 12 July 2019.

The application in an appeal filed by leave on 15 July 2019 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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