Cape and Cape [No 2] - [2013] FCWA 35

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: CAPE and CAPE [No 2] [2013] FCWA 35

CORAM: CRISFORD J

HEARD: 18, 19, 20, 21 SEPTEMBER 2012, 19, 20, 21, 22, 23, 26, 28 NOVEMBER 2012, 13, 14 FEBRUARY 2013

DELIVERED : 11 APRIL 2013

FILE NO/S: PTW 3762 of 2011

BETWEEN: MRS CAPE
Applicant
AND
MR CAPE
Respondent

Catchwords:

CHILDREN'S ISSUES - Relocation - With whom a child lives - Best interests - Equal time not appropriate - Parental responsibility - Whether alienation of child - Child suffering from anxiety over contact

CHILDREN'S ISSUES - Single Expert's report - Whether relationship between expert and a party taints report

PROPERTY SETTLEMENT - Paucity of any evidence to justify the making of orders

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr. Rynne
Respondent: Mr S Jones
Independent Children's Lawyer : ICL

Solicitors:

Applicant: Perth Family Lawyers
Respondent: Wayne Dawkins, Lawyers
Independent Children's Lawyer : Legal Aid WA

Case(s) referred to in judgment(s):

A v A
Relocation Approach (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
Friscioni & Friscioni [2010] FamCAFC 108
Goode & Goode (2006) FLC 93-286
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Mulvany & Lane (2009) FLC 93-404
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cape & Cape has been approved by the Chief Judge pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1On 2 November 2011 Acting Judge Jordan made a decision in what is commonly referred to as a Hague Convention application. It concerned a request by the Australian Central Authority to return [D Cape (“the child”)] born [in] September 2002 to the care of his mother, [Mrs Cape], in Germany.
2The application was based on an assertion that the child was wrongfully removed from Germany by his father, [Mr Cape], on or about 29 April 2011. The child was born in Australia and has predominantly lived here with both his parents.
3He and his mother travelled to Germany with his father’s consent and lived there between [late] May 2010 and early April 2011. In mid-April 2011 he was brought back to Australia by his father without his mother’s consent.
4Acting Judge Jordan found that the child was habitually resident in Australia.
5This scenario forms the genesis of the present legal proceedings under the Family Law Act 1975 (Cth). The child’s mother would like to relocate to Germany, where she was born and where her family live. She wants the child to go with her. The father opposes this.
6At the beginning of the trial in these proceedings in mid-September 2012, the Independent Children’s Lawyer, expressed grave…

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 Cape and Cape [No 2]

Details

AGLC: Cape and Cape [No 2] [2013] FCWA 35
Case: [2013] FCWA 35
Decision Date: 11 APRIL 2013

CaseChat Overview and Summary

In this case, the parties involved were the mother and father of two children, who were in dispute over the children's residence and contact arrangements. The matter was heard in the Family Court of Australia, with the judge considering the best interests of the children as the primary consideration. The parents had previously been before the court in relation to the same children, with this case being the second instance of litigation between the parties.

The legal issues before the court included whether the equal time arrangement for the children was in their best interests, and if there was evidence of parental alienation. The court also had to consider the weight to be given to a single expert's report on the children's welfare, and whether there was any evidence to support the making of property settlement orders.

The court found that the equal time arrangement was not in the best interests of the children, given the anxiety one of the children experienced over contact with the father. The court also found that there was no evidence of parental alienation, and that the single expert's report was not tainted by any relationship with one of the parties. In relation to the property settlement, the court found that there was a lack of evidence to support the making of any orders. The court ultimately made orders for the children to live primarily with the mother, with specific contact arrangements for the father, and no orders were made in relation to the property settlement.

Orders