Cape and Cape [No 3]

[2013] FCWA 70

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: CAPE and CAPE [No 3] [2013] FCWA 70

CORAM: CRISFORD J

HEARD: 28 JUNE 2013 & 5 JULY 2013

DELIVERED : 5 JULY 2013

FILE NO/S: PTW 3762 of 2011

BETWEEN: MR CAPE

Applicant

AND

MRS CAPE
Respondent

Catchwords:

ENFORCEMENT - Stay of orders pending appeal

Legislation:

Family Law Act 1975 (Cth)
The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measure for the Protection of Children

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Mr M Rynne

Independent Children's Lawyer : ICL

Solicitors:

Applicant: Self Represented Litigant

Respondent: Perth Family Lawyers

Independent Children's Lawyer : Legal Aid WA

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

Trahn & Long (No. 2) [2008] FamCAFC 194

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 11 April 2013 I delivered a judgment in proceedings between these parties relating to children’s issues. I made final orders about where their child [D Cape (“the child”)] born [in] September 2002 should live and who should have parental responsibility for him. On 8 May 2013 [Mr Cape] filed a Notice of Appeal in this Court.

2On 6 June 2013 Mr Cape filed an Application in a Case seeking to stay certain of the orders I made and also seeking an order that the child be placed on the “Watch List” within five business days. He also sought that the mother, [Mrs Cape], surrender any travel documents, including the child’s passports to the Family Court.

The orders appealed against

3The orders of 11 April 2013 which are the subject of the appeal are:

1 The child [D CAPE] (“[the child]”) born [in] September 2002 live with the mother, [MRS CAPE].

2 The mother have sole parental responsibility for [the child].

3 The mother be permitted to relocate to Germany with [the child] and, until further order, not later than six months from the date of these orders.

…

The law

4Rule 22.11 of the Family Law Rules 2004 provides as follows:

(1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.

(2)If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.

(3)An application for a stay must be filed in the Registry in which the order under appeal was made and be heard by the Judge, Federal Magistrate or Magistrate who made the order under appeal.

5The principles I must have regard to in determining a stay application, both generally and in respect to parenting issues are well settled (Trahn & Long(No. 2) [2008] FamCAFC 194). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

•The mere filing of an appeal is an insufficient basis for granting a stay;

•The applicant has the onus of establishing a proper basis for a stay, however, it is not necessary for the applicant to demonstrate “special” of “exceptional” circumstances;

•A person who obtained a judgment is entitled to the benefit of that judgment;

•The person who has obtained a judgment is entitled to presume the judgment is correct;

•The bona fides of the applicant;

•A stay may be granted on terms that are fair to all parties – this may involve a Court weighing the balance of convenience in the competing rights of the parties;

•A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay;

•Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

•The desirability of limiting the frequency of any change in a child’s living arrangements;

•The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and

•The best interests of the child the subject of these proceedings.

Mr Cape’s position

6Mr Cape swore an affidavit in support of his application for a stay on 5 June 2013. He annexed the Notice of Appeal which contains 33 paragraphs of “Facts Relied Upon” and his five Grounds of Appeal.

7Relevantly, for the determination of the stay he deposes that in the event the child is removed from Australia, any appeal would be rendered nugatory. He also says Mrs Cape has failed to comply with some of the orders I made allowing him access to information about the child.

8Mr Cape also submitted a further affidavit by email a day prior to the adjourned hearing. In the main, that affidavit contained material irrelevant to the stay application. His oral submission dealt mostly with matters more appropriately raised in the appeal. Despite this, I have considered all the material provided and the submissions made.

9Mr Cape appears to base his grounds of appeal largely on matters of weight, factual inaccuracy and a disagreement with the outcome at first instance.

Mrs Cape’s position

10Mrs Cape seeks the stay application be dismissed. Her counsel, unsurprisingly, says the Grounds of Appeal are without merit. I am told, albeit from the Bar Table, that paragraph 15 of my orders of 11 April 2013 has been registered in Germany in a Court of competent jurisdiction.

The Independent Children’s Lawyer’s position

11[The Independent Children’s Lawyer] provided a Summary Report of Therapy compiled by [Mr C]. The report was received on 4 July and is unsigned, but I accept it was prepared in haste for the Court hearing. I have reviewed its content carefully given my orders at trial. Both parties were provided with the report. The report arises out of paragraph 4 and 5 of the orders of 11 April 2013.

Discussion

12A first directions hearing has been listed in the Appeal on 5 August 2013 with some likelihood of an Appeal being dealt with in the October sittings of the Full Court of the Family Court. However, the Appeals Registrar advises there are already a number of matters listed in that sitting. The following sitting will be in 2014. Neither party has yet applied for any expedition.

13One matter of concern at trial was the lack of appropriate living and financial arrangements for Mrs Cape and the child in Australia. Neither party was earning an income. The present position in that regard is much the same. Mr Cape continues to receive government benefits, and makes no contribution to the child or Mrs Cape. This matter still concerns me.

14I am acutely aware of the desirability of limiting the frequency of any change in the child’s living arrangements. The orders I made after trial were very much a balance between him remaining in Australia for up to six months to enable his relationship with his father to be re-established and Mrs Cape’s unhappiness here, her practical difficulties and the child’s own precarious mental state which was exacerbated by his mother living here.

15I also had concerns about the bona fides of the appellant in his continuing attempts to have the child remain in Australia when the child’s emotional wellbeing was deteriorating. I had the opportunity of seeing Mr Cape at close quarters over many days. As remarked in my judgment, it is possible for Mr Cape to travel internationally and to see the child in Germany where the current stress he is under, largely from his parents’ relationship, may well be relieved.

16There is no basis raised by Mr Cape in relation to orders 1 or 2 of my judgment that suggest the granting of a stay is either likely to render the appeal nugatory or is likely to be in the best interests of the child. Mr Cape’s relationship with the child has been non-existent since the publication of the Single Expert’s report in May 2012. At trial I found there were some difficulties in the relationship even prior to that time. An unmonitored attempt by Mr Cape to play an active part in the child’s life without the assistance of therapeutic support for the child is likely to create grave problems for this child. There is little evidence I accept to suggest the staying of orders 1 and 2 of my judgment is warranted. It will be practically meaningless and likely to cause greater harm to the child.

17The issue of whether an appeal will be rendered nugatory revolves around whether or not order 3 of my orders should be stayed. I have carefully considered, once again, my judgment and the evidence at trial. I consider Mr Cape’s prospects of success in the Appeal to be far outweighed by the need for some stability and comfort in the child’s life within the timeframe set out in the orders. His going to Germany will not render an appeal nugatory, but I do accept it will make a reversal of the present situation difficult. However, the child is not a stranger to moving between Germany and Australia.

18Mr Cape notes in his “Facts Relied Upon” at clause 5:

In May 2010 and by agreement the mother took the child the child born [in] September 2002 to live with her in Germany. … (emphasis added)

19There is no evidence before me that the mother has ever removed the child from Australia other than with Mr Cape’s consent or by court order. I see no reason why the additional orders sought by Mr Cape should be granted, these being the surrender of travel documents, including the child’s passport and the placing of the child’s name on the Airport Watch List.

20I have also carefully considered the recent report of Mr C. The content of that report is unsurprising, both as to the present assessment of Mrs Cape and how the re-establishment of the child’s relationship with his father has progressed. The likely passage of this reunification was certainly one of the possibilities that informed the decision at first instance.

21I made it clear at trial that Mrs Cape was to remain in Australia for a period after trial to allow some form of re-unification to be attempted. However, I was conscious there was likely to be a point of diminishing return in that respect, and guided by Mr C, gave the attempt six months.

22The current situation is that the therapy to re-establish the relationship between the child and his father has been terminated by Mr C. He believes the therapy to address the relationship between the child and Mr Cape is futile and possibly harmful. He says:

To continue will likely foster further distress for [the child] and will more than likely further harm the relationship with his father.

23This Court is only too aware of the role the court process itself has played in the relationships of all these parties. Mr C concludes:

The safest option, then, appears to be that [the child] should return to Germany.

Conclusion

24I am not satisfied Mr Cape has established a proper basis for a stay. However, if I am wrong in that, I do not intend to exercise my discretion to grant it in any event. I do not consider a stay is in the child’s best interests. I consider he should return to Germany if the attempts at reunification have not been successful and it appears they have not. Although Mr Cape says “if [the child] goes to Germany I will lose a meaningful relationship with him,” this has already happened.

25I intend to put safeguards in place to ensure the mother’s return should the Appeal against my orders be successful. To that extent, I will require her to enter into an undertaking pursuant to the 1996 Hague Protection Convention (The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measure for the Protection of Children). This convention has, as one of its objectives, the provision for the recognition and enforcement of measures of protection is various contracting states. Both Australia and Germany are members of the organisation. (Germany ratified the convention on 17 October 2010 and it entered into force in that country on 1 November 2011. Australia has been a member since 2003).

Orders

1Upon [MRS CAPE] executing an undertaking (as a measure of protection pursuant to the 1996 Hague Protection Convention) to be registered both in this Court and in Germany in a Court of competent jurisdiction (to be the same Court as that utilised in paragraph 15 of the orders of 11 April 2013) that she will forthwith return the child, [D CAPE] (“the child”) born [in] September 2002 to the Commonwealth of Australia in the event the Appeal of [MR CAPE] in WA 12/2013 is successful she be entitled to remove the child to Germany on or after 26 July 2013.

2The application filed 6 June 2013 for a stay and associated orders otherwise be dismissed.

I certify that the preceding [25] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate