CAPEK & SAMERA - [2019] FCCA 3300

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAPEK & SAMERA

[2019] FCCA 3300

Catchwords:
FAMILY LAW – Parenting – high conflict - sexual abuse allegation made by father against maternal uncle then withdrawn – genuinely held belief - unacceptable risk of harm to child.

Legislation:

Family Law Act 1975 (Cth), s.60CC
Evidence Act 1995 (Cth), ss.79, 140

Cases cited:

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Re David (1997) 22 Fam LR 489

Briginshaw v Briginshaw (1938) 60 CLR 336

M & M (1988) 166 CLR

W & W [2005] FamCA 892

Applicant:

MS CAPEK

Respondent:

MR SAMERA

File Number:

WOC 118 of 2016

Judgment of:

Judge B Smith

Hearing dates:

17 September 2018, 18 September 2018, 19 September 2018, 9 November 2018

Date of Last Submission:

9 November 2019

Delivered at:

Sydney

Delivered on:

15 November 2019

REPRESENTATION

Counsel for the Applicant:

Ms Snelling

Solicitors for the Applicant:

MDV Family Lawyers

Counsel for the Respondent:

Ms Steggall

Solicitors for the Respondent:

Shoalhaven Lawyers

Counsel for the Independent Children's Lawyer:

Mr Anderson

Solicitor for the Independent Children's Lawyer:

Melea Mullard Lawyers

ORDERS

The applicant, Ms Capek born … 1978, to have sole parental responsibility for making decisions about the long term care, welfare and development of the child, X born … 2013.
The child live with the applicant.
The applicant is not to denigrate the respondent or his family or seek to lower him in the child’s estimation in any way.
The applicant is to provide to the respondent by email copies of the child’s school reports and photographs within 2 weeks of receiving them.
The child is to have no contact or communication with the respondent, Mr Samera born … 1978, other than as follows:
(a)For the purpose of identity contact, the child is to spend supervised time with the respondent at a paid contact centre for four (4) hours four (4) times per calendar year.
(b)The dates are to be agreed between the parties, and failing agreement shall be on the Saturday after the last week of each school term.
(c)The times are to be agreed between the parties, and failing agreement shall be, from 10am to 2pm or such other time between 9am and 5pm as the contact centre shall nominate if 10am to 2pm is not available.
(d)The respondent is to pay the entire costs of the contact centre.
(e)The respondent’s mother Ms C may attend with the respondent, but no other person may attend without the applicant’s written consent.
(f)For the purposes of communicating about these matters the applicant is to provide the respondent with an email address and is to check that email address on a monthly basis, and then every second day in the three week prior to the end of each school term.
(g)The respondent and applicant are not to communicate with each other except through this email address other than in emergency, and then only by text.
(h)The respondent may send cards and gifts to the child in envelopes addressed…

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.

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Details

Case: [2019] FCCA 3300
Decision Date: 15 November 2019

CaseChat Overview and Summary

In the matter of *Capek & Samera*, Judge B Smith of the Family Court of Australia considered a dispute concerning the parenting arrangements for the child, X, born in 2013. The applicant, Ms Capek, sought sole parental responsibility and for the child to live with her, while the respondent is Mr Samera. The proceedings were characterised by high conflict, including a sexual abuse allegation made by the father against the maternal uncle, which was subsequently withdrawn.

The court was required to determine the best interests of the child, X, in circumstances involving significant parental conflict and a withdrawn allegation of sexual abuse. Key issues included whether the father posed an unacceptable risk of harm to the child and, consequently, what form of contact, if any, between the child and the father would be in X's best interests, alongside the need for protective injunctions.

Judge B Smith found that the father's withdrawn allegation, despite being genuinely held by him at the time, created an unacceptable risk of harm to the child. The court reasoned that the high conflict and the nature of the withdrawn allegation necessitated a significant restriction on the father's contact with the child to ensure X's safety and welfare. The court applied principles under the *Family Law Act 1975* concerning the best interests of the child and the need to protect them from harm.

Consequently, the court ordered that Ms Capek have sole parental responsibility for long-term decisions and that the child live with her. Contact between the child and Mr Samera was severely restricted to supervised identity contact at a paid centre, four times per year, with specific provisions for communication and the attendance of Mr Samera's mother. Furthermore, injunctions were granted under s 68B of the *Family Law Act 1975* restraining Mr Samera from approaching within 100 metres of the applicant or child's residence, school, or the applicant's workplace, with provisions for arrest without warrant for breaches.

Orders

Orders of the court

The applicant, Ms Capek born … 1978, to have sole parental responsibility for making decisions about the long term care, welfare and development of the child, X born … 2013.

The child live with the applicant.

The applicant is not to denigrate the respondent or his family or seek to lower him in the child’s estimation in any way.

The applicant is to provide to the respondent by email copies of the child’s school reports and photographs within 2 weeks of receiving them.

The child is to have no contact or communication with the respondent, Mr Samera born … 1978, other than as follows:

(a) For the purpose of identity contact, the child is to spend supervised time with the respondent at a paid contact centre for four (4) hours four (4) times per calendar year.

(b) The dates are to be agreed between the parties, and failing agreement shall be on the Saturday after the last week of each school term.

(c) The times are to be agreed between the parties, and failing agreement shall be, from 10am to 2pm or such other time between 9am and 5pm as the contact centre shall nominate if 10am to 2pm is not available.

(d) The respondent is to pay the entire costs of the contact centre.

(e) The respondent’s mother Ms C may attend with the respondent, but no other person may attend without the applicant’s written consent.

(f) For the purposes of communicating about these matters the applicant is to provide the respondent with an email address and is to check that email address on a monthly basis, and then every second day in the three week prior to the end of each school term.

(g) The respondent and applicant are not to communicate with each other except through this email address other than in emergency, and then only by text.

(h) The respondent may send cards and gifts to the child in envelopes addressed to the applicant, and the applicant may monitor and pass on such cards and gifts as are suitable, but the applicant shall not unreasonably withhold such cards or gifts from the child.

(i)

At the commencement of year 7 the child shall be at liberty to determine whether or not he wishes to continue with these identity visits and he will not be required to continue with the visits if he does not wish to.

Pursuant to s.68B of the Family Law Act 1975, Mr Samera born … 1978, for the protection of the applicant and the child, be restrained by injunction on penalty of imprisonment from:

(a) approaching or coming within 100 metres of any place where the applicant or child might reside from time to time; and

(b) approaching or coming within 100 metres of any place where the child might attend day care or school; and

(c)

approaching or coming within 100 metres of any place where the applicant might work from time to time.

Pursuant to s68C the injunction in Order 5 above pursuant to s68B of the Family Law Act 1975, is for the personal protection of the Ms Capek born … 1978 and the child, X born … 2013, and if a Police Officer believes on grounds that Mr Samera born … 1978, at which the injunction is directed, has breached the injunction they may arrest them without warrant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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