Peake & Cousins (No 4) - [2019] FamCAFC 120

FAMILY COURT OF AUSTRALIA

PEAKE & COUSINS (NO. 4)

[2019] FamCAFC 120

FAMILY LAW – APPEAL – Where the mother appeals from orders made in relation to contravention applications filed by the mother and father – Where no question of general principle is raised – Where short reasons are adequate – Where the mother alleged bias on the part of the trial judge – Where it is not a disqualifying ground that a judge decides an issue in the proceedings against a party – Where nothing to which the mother directs attention demonstrates that the trial miscarried, by reason of either actual or apprehended bias on the part of the trial judge – Where the mother also complains of a denial of procedural fairness, errors of fact and law and an inadequacy of reasons – Where nothing to which the mother directs attention establishes any such error – Appeal dismissed – Where there is no order as to costs.

Family Law Act 1975 (Cth) Div 12A, s 94(2A)

Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 83
Piepkorn v Caroma Industries Ltd [2000] FCA 1230
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19; [2007] FCA 1544
SZCOS v Minister of Immigration and Citizenship [2008] FCA 570

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 appeal from the orders made on 7 and 12 December 2018 be dismissed.
There be no order as to costs.

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. 4) 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

In my opinion this appeal ought be dismissed and, as it does not raise any question of general principle, reasons for that decision may be given in…

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 4)

Details

AGLC: Peake & Cousins (No 4) [2019] FamCAFC 120
Case: [2019] FamCAFC 120
Decision Date: 15 July 2019

CaseChat Overview and Summary

Peake & Cousins (No 4) involved a dispute between the parties concerning orders made by the court on 7 and 12 December 2018. The nature of the dispute was related to the legal actions taken by the court, which the appellant sought to challenge. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court encompassed the validity and appropriateness of the orders made on the specified dates, particularly focusing on whether the court had the necessary jurisdiction and whether the orders were within the scope of the court's powers. The court needed to determine whether the orders were correctly made and whether the appeal against these orders was justified.

The court dismissed the appeal from the orders made on 7 and 12 December 2018. It held that the orders were within the jurisdiction of the court and were appropriately made. The court found no merit in the arguments presented by the appellant, confirming the validity of the orders. Additionally, the court made no order regarding costs, leaving the costs as they stood. The form of the order was subject to formal entry in the Court’s records.

Orders

Orders of the court

The appeal from the orders made on 7 and 12 December 2018 be dismissed.

There be 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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