Cape & Cape

Case [2013] FamCAFC 114

FAMILY COURT OF AUSTRALIA

CAPE & CAPE [2013] FamCAFC 114

FAMILY LAW – APPEAL – INTERNATIONAL RELOCATION – STAY – Whether the trial judge erred in refusing to grant a stay of orders which permitted the mother to relocate to Germany with the child pending determination of an appeal against the order permitting her to relocate – Where, when refusing to stay the relocation orders, the trial judge ordered that before the mother could leave Australia with the child she had to execute an undertaking (as a measure of protection pursuant to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (1996)) (“the Child Protection Convention”) to be registered in a court of competent jurisdiction in Germany and in the Family Court of Western Australia that she would return the child to Australia if the father’s appeal was successful – Where the Full Court considered the registration of an undertaking pursuant to the Child Protection Convention might not be a sufficient measure of protection – Where the Full Court discharged the order of the trial judge requiring the mother to execute and register an undertaking – Where the Full Court made an order requiring the mother to return the child to Australia if the father’s appeal is successful – Where the Full Court made an order permitting the mother to relocate with the child to Germany pending the outcome of the father’s appeal once she serves on the father and the independent children’s lawyer proof that she has obtained recognition of the relocation orders and the orders of the Full Court in a court of competent jurisdiction in Germany and the Family Court of Western Australia (pursuant to Article 24 of the Child Protection Convention); or that she has obtained a declaration of enforceability from a court of competent jurisdiction in Germany of the relocation orders and the orders of the Full Court (pursuant to Article 26 of the Child Protection Convention); or that she has registered the relocation orders and the orders of the Full Court in a court of competent jurisdiction in Germany (pursuant to Article 26 of the Child Protection Convention).

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996

Convention on the Civil Aspects of International Child Abduction, signed at The Hague on 25 October 1980

Family Law Act 1975 (Cth)

Family Law Amendment (Child Protection Convention) Act 2002 (Cth)
Family Law Amendment (Child Protection Convention) Regulations 2003 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685
Clemett and Clemett (1981) FLC 91-013
Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
Re Y (a child) [2013] EWCA Civil 129
The Commissioner of Taxation of the Commonwealth of…

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CAPE & CAPE [2013] FamCAFC 114
Case
[2013] FamCAFC 114
Decision Date

CaseChat Overview and Summary

In the case of Cape & Cape, the Full Court of the Family Court of Australia considered an appeal by the father against orders that permitted the mother to relocate to Germany with their child. The central legal issues involved whether the trial judge had erred in refusing to grant a stay of the relocation orders and whether the measures put in place to protect the father's rights were adequate. The Full Court also needed to determine whether the mother could relocate to Germany pending the appeal, and if so, under what conditions.

The Full Court found that the trial judge had not erred in refusing to grant a stay of the relocation orders, but it was concerned that the measures intended to protect the father's rights might not be sufficient. Specifically, the Full Court was uncertain if the registration of an undertaking pursuant to the Child Protection Convention would provide adequate protection. Consequently, the Full Court discharged the order requiring the mother to execute and register an undertaking. Instead, the Full Court ordered that the mother must return the child to Australia if the father's appeal was successful. The Full Court also permitted the mother to relocate to Germany with the child, provided she obtained recognition, a declaration of enforceability, or registered the relocation orders and the Full Court's orders in a competent German court and the Family Court of Western Australia, in accordance with the Child Protection Convention. These orders were made to ensure that the father's rights were protected and that the child's best interests were considered.

The final orders of the Full Court included setting aside the orders made by the trial judge and replacing them with new conditions for the mother's relocation to Germany. The court dismissed the father's application for a stay and associated orders and discharged the previous orders made on 22 July 2013. The father's appeal against the trial judge's orders was scheduled for hearing in October 2013, with the possibility of an earlier hearing if the Appeal Registrar indicated readiness. No order for costs was made in relation to the appeal, but both parties were granted liberty to apply for costs certificates under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

Orders made on 22 July 2013

IT IS ORDERED PENDING FURTHER ORDER OF THE COURT:

The operation of Order 1 made by the Honourable Justice Crisford on 5 July 2013 be suspended.

The child, D, born in 2002, not be removed from Australia.

Orders made on 2 August 2013

The appeal against the orders made by the Honourable Justice Crisford on

5 July 2013 (“the orders”) be allowed.

The orders be set aside and in their place Orders 3, 4, 5 and 6 of these orders be made.

The mother will return the child to Australia in the event that the appeal by the father against the orders made on 11 April 2013 is successful and an order is made for the return of the child to Australia either by the Full Court of the Family Court of Australia or by a court to which the parenting and relocation proceedings may be remitted for re-hearing.

Upon the mother:

(a) serving on the father and on the Independent Children’s lawyer documentary proof:

(i) that she has obtained from a court of competent jurisdiction in Germany recognition pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996 (“the Child Protection Convention”), of the orders of the Family Court of Western Australia made on 11 April 2013 and of these orders; or

(ii) that she has obtained from a court of competent jurisdiction in Germany a declaration of enforceability in Germany pursuant to Article 26 of the Child Protection Convention, of the orders of the Family Court of Western Australia made on 11 April 2013 and of these orders; or

(iii) that she registered in a court of competent jurisdiction in Germany pursuant to Article 26 of the Child Protection Convention, the orders of the Family Court of Western Australia made on 11 April 2013 and of these orders; and

(b) filing in the Family Court of Western Australia such documentary proof, together with proof of service of such documentary proof on the father and the Independent Children’s Lawyer,

she will be entitled to remove the child from Australia at the expiration of

7 days from the date of such filing in the Family Court of Western Australia.

There is liberty to all parties to apply to the Honourable Justice Crisford, or in the event that she is unavailable, to another Judge of the Family Court of Western Australia in relation to Orders 3 and 4 of these orders.

The application filed by the father on 6 June 2013 for a stay and associated orders be otherwise dismissed.

The orders made by the Full Court on 22 July 2013 be discharged.

Subject to any order of a Judge or Registrar, the appeal by the father against the orders made by the Honourable Justice Crisford on 11 April 2013 be listed for hearing in the Perth sittings of the Full Court in October 2013.

IT IS NOTED in connection with this order that should the Appeal Registrar advise that the appeal is ready for hearing in advance of those sittings, then the Full Court will endeavour to arrange that it be heard on an earlier date.

There be no order for costs in relation to the appeal.

There be liberty to the father and to the mother to apply to the Full Court by letter to the Appeal Registrar of the Family Court of Western Australia for certificates under s 9 and s 6 respectively of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs of the appeal.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In order that the issues raised by the present appeal can be fully appreciated, we set out the conclusions and recommendations contained in Mr C’s report, which was available to the Court when the hearing of the father’s stay application resumed on 5 July 2013:ConclusionsFor the above reasons I believe therapy to address the relationship between [the child and the father] is futile and possibly harmful. To continue will likely foster further distress for [the child] and will more than likely further harm the relationship with his father.I do believe that [the child’s] view of his father must be considered as being influenced by his mother due to her lack of insight into how she presents to him and her firmly held belief that [the father] is a psychopath and she is a victim. As such, family therapy may be a better option some time in the future.The concerns I have outlined must be raised, as it is essential that [the child] not continue to play the role of his mothers [sic] ‘protector’, for the sake of his own development as he moves into adolescence. Nor must he feel that he has to agree with her narratives and views of events. [The mother] would do well to understand the impact she is having on the [the child] and how her belief that [the father] is a ‘psychopath’ may be clouding her judgment. I believe these things need to be addressed should [the child] have a chance of a more balanced view of his father and his father [sic] actions in the future and move naturally through the developmental stage as he grows towards independence.It is important to note that I am not in possession of all the information at hand, as I would in a normal capacity or Single Expert Witness assessment, and am currently viewing [the mother] under extremely stressful circumstances. It is possible she will return to Germany and address the relationship dynamic successfully. However, I believe it is important that [the mother] had these issues brought to her attention and those working with [the child] in the future are aware that his narratives about his father must be viewed with caution.In regards to repairing [the father’s] relationship with [the child] I see little to no chance of that occurring when [the child] returns to Germany should the current dynamics and beliefs, as outlined above, be sustained. RecommendationsI am conscious that my summary and conclusions place the Court in a difficult position. From my point of view how the situation is resolved now is very different to how it would have been resolved prior to the supervised visits being ordered. [The child] is now convinced, by court findings and reports plus long periods of time without seeing his father, that his father is manipulative and fake. Furthermore, he seems himself, much like his mother, as a victim who is ‘trapped’. The validity of these conclusions I cannot speak to but I have outlined my concerns above. The only way such beliefs and positions could be challenged would be to spend long periods with his father to show an ‘alternative’ point of view that can not easily be disputed on the grounds of perspective. I have participated in such processes and seen they can be very successful if alienation, accidental or conscious, has occurred. However, in this case such a process would likely be tainted by a) his perspective of his mother as persecuted and suffering every day she is in Australian, [sic] b) his conviction that only returning to Germany could allay his and his mothers [sic] pain and c) that to in any way show support for his father is to further victimize his mother who came back for him. One must also factor in that [the child] is exhibiting signs of withdrawal and anxiety that often predispose depressive type conditions. Thus, the normal exposure based approaches potentially come with risk and a context tainted by recent history and future possibility. The safest option, then, appears to be that [the child] should return to Germany. Indeed this is the conclusions [sic] Mr [W] has reached and I agree with his logic. The only context where this option would not be preferred was if there was concern about [the mother’s] mental health and ability to function in a fashion that did not promote [the child] being enmeshed and acting as her carer/protector. Furthermore, she should be able to provided [sic] an emotionally stable and nurturing environment once that dynamic is broken. (I would highlight that providing such a stable environment should include a more open minded view and interpretation of [the father’s] actions).

Ratio Decidendi

Legal Principle Established

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