Peake & Cousins (No 3)
[2019] FamCAFC 119
•15 July 2019
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 | of | 2014 |
| APPEAL NUMBER: | SOA | 91 | of | 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 August 2018 and 1 November 2018.
This appeal has been listed for hearing for some time. On 4 June 2019, that is last month, Austin J dealt with several Applications in an Appeal filed by the mother. His Honour ordered that the Court provide some trial transcripts and granted leave to the mother to amend her Notice of Appeal so as to include her appeal from orders that were made on 12 December 2018.[1] There was no indication then that the mother would seek an adjournment.
[1]Peake & Cousins (No. 2) [2019] FamCAFC 95.
On Friday last, the last working day before the hearing of this appeal today, the mother sought to file an Application in an Appeal seeking three orders supported by an affidavit. The Registry refused to accept the Application in an Appeal for filing and we were informed from the well of the Court this morning by the Southern Appeal Registrar that that refusal was based on the fact that the application was not in the correct form and was incomplete in that it did not contain all relevant documents.
That is clearly so, given that the third of the orders sought in the application is to adduce evidence on appeal by way of email correspondence in relation to Skype communication between the parties. None of the email correspondence is actually attached to the application or the affidavit material, therefore it is unknown precisely what information was sought to be relied on by way of further evidence. Be that as it may, even if the application had been accepted for filing several other things follow.
The first order sought is an order for an adjournment of the appeal to the next sittings of the Full Court of the Family Court after the conclusion of Federal Circuit Court of Australia (“the Federal Circuit Court”) contempt proceedings that have been brought by the mother. The mother says that this is necessary because there needs to be a “testing” of the evidence that the father gave in the subject contravention proceedings. However, review of the transcript of the trial proceedings reveals that the mother was given, and took, the opportunity to cross-examine the father and test him on his evidence given in the contravention proceedings. Those proceedings are self-contained, that is, they have been heard and determined and the trial judge has made his orders and the appeal today is for the mother to have the opportunity to agitate the complaints she wishes to make about his Honour’s determination.
The contempt application that the mother seeks to bring in the Federal Circuit Court is likewise a self-contained proceeding and presumably will be dealt with by that Court in the usual course.
In my judgment, there is no basis shown sufficient for this appeal to be adjourned and the application for an adjournment should be refused.
With respect to the other orders sought by the mother in her application, it was confirmed that we, in fact, have the trial transcript of 14 November 2018, as do the parties, so there is no need for any formal order to be made in that respect and the mother will be at liberty to refer to that transcript.
The third order sought in relation to further evidence was, in the end result, not pressed by the mother when it was pointed out to her that Austin J had determined that application last month by orders dated 4 June 2019, and specific reference was made at [61] of his Honour’s reasons for judgment delivered the same day.
For my part, for these reasons, I would refuse the filing of the Application in an Appeal, or, in the alternative, I would accept it for filing and dismiss it.
Ainslie-Wallace J
I agree with the orders proposed by Kent J and his reasons for making them.
Strickland J
Yes I too agree with the orders proposed by Kent J and the reasons provided for those orders.
The orders of the Court are:
1.The appellant have leave to file and rely on the Application in an Appeal and the affidavit in support dated 3 July 2019.
2.The appellant’s Application in an Appeal, filed by leave today, be dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Kent JJ) delivered on 15 July 2019, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 22 July 2019
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