Cape and Cape (No 2) - [2013] FamCAFC 178

FAMILY COURT OF AUSTRALIA

CAPE & CAPE (NO. 2)

[2013] FamCAFC 178

FAMILY LAW – APPEAL – CHILDREN – INTERNATIONAL RELOCATION – Appeal from a Judge allowing the mother to relocate the child of the marriage to Germany – Where it is asserted the trial Judge should have appointed a second single expert – Where there were already four experts involved – Application for appointment of second single expert only made shortly before trial, allied with an application to vacate the trial – Child exhibiting increasing levels of anxiety – Delay associated with obtaining further expert evidence would be contrary to the child’s bests interests – Where it is asserted the trial Judge did not consider the benefit of a meaningful relationship with the father – The trial Judge properly considered the benefit of a meaningful relationship with the father but considered the rebuilding of the child’s relationship with the father could only commence when the litigation ended – Where it is asserted the trial Judge erred in her findings about the mother’s view of the child having a relationship with the father and about the mother’s accommodation and income – The trial Judge made findings open on the evidence – Where it is asserted the trial Judge failed to properly consider the evidence of the father’s witnesses – The trial Judge properly considered the evidence of all witnesses – No merit in the appeal.

FAMILY LAW – APPLICATION IN AN APPEAL – STAY – Where the father had made an application for special leave to appeal to the High Court against an order of a Full Court made in an associated appeal – Stay sought only pending determination of the primary appeal – As the primary appeal was dismissed, the application for a stay should be dismissed.

Family Law Act 1975 (Cth)

Cape & Cape (2013) FLC 93-549
McCall & Clark (2009) FLC 93-405

APPELLANT:

Mr Cape

RESPONDENT:

Mrs Cape

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Western Australia

FILE NUMBER:

PTW

3762

2011

APPEAL NUMBER:	WA	12	of	2013
WA	18	of	2013

DATE DELIVERED:

13 November 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, Thackray and Walters JJ

HEARING DATE:

28 and 29 October 2013

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

11 April 2013

LOWER COURT MNC:

[2013] FCWA 35

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Jones (WA 12 of 2013)
Mr Cape(WA 18 of 2013)

COUNSEL FOR THE RESPONDENT:

Mr Rynne

SOLICITOR FOR THE RESPONDENT:

GG Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cohen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid WA

Orders

WA 12 of 2013

Orders made 28 October 2013

The Appellant have leave to rely on the amended grounds of appeal, summary of argument and list of authorities filed on 9 October 2013.
The affidavit of Andrew Mackey filed on 21 October 2013 be received as further evidence in the appeal.

Orders made 29 October 2013

The appeal against the orders of…

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] FamCAFC 178
Case: [2013] FamCAFC 178
Decision Date

CaseChat Overview and Summary

Mr Cape appeals against orders made on 11 April 2013 permitting Mrs Cape to relocate to Germany with their only child. We dismissed the appeal, together with an application for a stay of the operation of orders made by another Full Court in a related appeal. The Full Court found that the trial Judge properly declined to appoint a second single expert witness, given the adverse impact of delay on the child. The Full Court found that the trial Judge had properly considered the benefit of a meaningful relationship between the child and the father. The Full Court found that the trial Judge had properly accepted the mother’s belief that the child should have a relationship with the father. The Full Court found that the trial Judge’s findings about the mother’s accommodation and income were open on the evidence. The Full Court found that the trial Judge properly considered the evidence of the father’s witnesses. No order was made as to costs.

Orders