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…

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 3]

Details

AGLC: Cape and Cape [No 3] [2013] FCWA 70
Case: [2013] FCWA 70
Decision Date: 5 JULY 2013

CaseChat Overview and Summary

In the matter of Cape and Cape [No 3], the case involved the parties, Mr. and Mrs. Cape, who were in dispute over certain orders made by the Family Court. The High Court was tasked with considering the enforcement of these orders and the stay of proceedings pending an appeal. The dispute centred on the interpretation and implementation of the Family Law Act, specifically regarding the enforcement of parenting orders and the circumstances under which an appeal could halt the enforcement of these orders.

The central legal issue before the court was whether the Family Court's orders should be stayed pending the outcome of an appeal. The court had to determine the appropriate circumstances in which a stay of enforcement would be justified, considering the balance between the rights of the parties involved and the best interests of the child. Additionally, the court needed to clarify the scope of the Family Law Act concerning the enforcement of parenting orders and the procedural requirements for appealing such orders.

The court held that a stay of enforcement should only be granted in exceptional circumstances where there is a strong likelihood that the appeal will succeed and the refusal to stay would cause significant injustice. The court emphasised the importance of adhering to the statutory framework and ensuring that decisions are made in the best interests of the child. The court found that the Family Court had correctly exercised its discretion in not staying the enforcement of the orders, as there was no compelling reason to halt the implementation pending appeal. Consequently, the High Court dismissed the appeal, upholding the Family Court's decision.

Orders