Capitani & Langer (No 2) - [2022] FedCFamC2F 477

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Capitani & Langer (No 2) [2022] FedCFamC2F 477

File number(s): MLC 2050 of 2021

Judgment of: JUDGE STEWART

Date of judgment: 13 April 2022

Catchwords: FAMILY LAW – parenting – application for summary dismissal – forum – mother and children in Country B with no intention to return to Australia – any orders in Australia unenforceable in Country B – effect of the operation of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.

Legislation:
Family Law Act 1975 (Cth) ss 64B(1), 64B(2), 65D, 65D(1), 69E, 69E(1)(c), 69E(1)(d), 111CA(c), 111CC, 111CC(b), 111CD, 111CD(1)(e), 111CD(1)(e)(i), 111CD(1)(e)(ii)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 10.11(1)(a)

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, opened for signature 19 October 1996, 2204 UNTS 95 (entered into force 1 January 2002)

Cases cited:
Alfarsi & Elhage [2016] FamCA 428

Amad & Hadi [2020] FamCA 1041

Bunyon & Lewis (No.3) [2013] FamCA 888

LK & Director General, Department of Community Services (2009) 237 CLR 582

Punter v Secretary for Justice [2007] 1 NZLR 40

Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57

Zanda & Zanda (2014) FLC 93-607; [2014] FamCAFC 173

Division: Division 2 Family Law

Number of paragraphs: 35

Date of hearing: 23 November 2021, 3 December 2021 & 7 February 2022

Place: Melbourne

Solicitor for the Applicant: Mr Raniga of RRR Lawyers

Solicitor for the Respondent: Mr Kennedy of Kennedy Partners
ORDERS

MLC 2050 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CAPITANI

Applicant

AND:
MS LANGER

Respondent

ORDER MADE BY:

JUDGE STEWART

DATE OF ORDER:

13 APRIL 2022

THE COURT ORDERS THAT:
1.The Applicant Father’s applications dated 25 February 2021 be and is hereby summarily dismissed.
2.All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STEWART

On 8 December 2021, I delivered reasons for Judgment in relation to these proceedings (“my reasons”), being 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 Capitani & Langer (No 2)

Details

AGLC: Capitani & Langer (No 2) [2022] FedCFamC2F 477
Case: [2022] FedCFamC2F 477
Decision Date: 13 April 2022

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application by a father seeking parenting orders in relation to his two children, who reside with their mother in Country B and have no intention of returning to Australia. The court was asked to summarily dismiss the application on the grounds that the children's residence in Country B, coupled with the mother's lack of intention to return to Australia, rendered any Australian orders unenforceable in Country B. Furthermore, the operation of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children was considered, as it impacts jurisdiction and the enforcement of orders across different signatory countries.

The primary legal issue before the court was whether it had the jurisdiction to make parenting orders in relation to the children, given their residence in Country B. The court had to consider the enforceability of any Australian orders in Country B, as well as the effect of the Convention on the case. The court also had to determine whether the application should be summarily dismissed, given the circumstances presented.

The court found that due to the children's residence in Country B and the mother's lack of intention to return to Australia, any parenting orders made by the Australian court would be unenforceable in Country B. The court further noted that the operation of the Convention required consideration of the jurisdiction of the courts in Country B and the potential for those courts to make orders in relation to the children. Based on these findings, the court concluded that it did not have the jurisdiction to make parenting orders in relation to the children, and therefore, summarily dismissed the father's application. All extant applications were dismissed and the matter was removed from the list of pending cases.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Applicant Father’s applications dated 25 February 2021 be and is hereby summarily dismissed.

2. All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 2050 of 2021
Judgment of:	JUDGE STEWART
Date of judgment:	13 April 2022
Catchwords:	FAMILY LAW – parenting – application for summary dismissal – forum – mother and children in Country B with no intention to return to Australia – any orders in Australia unenforceable in Country B – effect of the operation of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
Legislation:	Family Law Act 1975 (Cth) ss 64B(1), 64B(2), 65D, 65D(1), 69E, 69E(1)(c), 69E(1)(d), 111CA(c), 111CC, 111CC(b), 111CD, 111CD(1)(e), 111CD(1)(e)(i), 111CD(1)(e)(ii) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 10.11(1)(a)
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, opened for signature 19 October 1996, 2204 UNTS 95 (entered into force 1 January 2002)
Cases cited:	Alfarsi & Elhage [2016] FamCA 428 Amad & Hadi [2020] FamCA 1041 Bunyon & Lewis (No.3) [2013] FamCA 888 LK & Director General, Department of Community Services (2009) 237 CLR 582 Punter v Secretary for Justice [2007] 1 NZLR 40 Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57 Zanda & Zanda (2014) FLC 93-607; [2014] FamCAFC 173
Division:	Division 2 Family Law
Number of paragraphs:	35
Date of hearing:	23 November 2021, 3 December 2021 & 7 February 2022
Place:	Melbourne
Solicitor for the Applicant:	Mr Raniga of RRR Lawyers
Solicitor for the Respondent:	Mr Kennedy of Kennedy Partners

MLC 2050 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CAPITANI Applicant
AND:	MS LANGER Respondent

ORDER MADE BY:	JUDGE STEWART
DATE OF ORDER:	13 APRIL 2022