CAPPETTO & CAPPETTO - [2013] FamCAFC 69

FAMILY COURT OF AUSTRALIA

CAPPETTO & CAPPETTO

[2013] FamCAFC 69

FAMILY LAW – APPEAL – CHILDREN – Self represented litigant – No recourse to transcript of trial proceedings in argument on appeal – 13 challenges to trial judge’s decision including a complaint of bias on the part of the trial judge – Held appeal was without merit – Appeal dismissed – No order as to costs.

Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

Ms Cappetto

RESPONDENT:

Mr Cappetto

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel

APPEAL NUMBER:

2011

FILE NUMBER:

SYC

7342

2008

DATE DELIVERED:

1 May 2013

PLACE DELIVERED:

Brisbane

DATE HEARD:

21 November 2012

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Coleman & Ainslie-Wallace JJ

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 May 2011

LOWER COURT MNC:

[2011] FamCA 345

REPRESENTATION

FOR THE APPELLANT:

Ms Cappetto in person

FOR THE RESPONDENT:

Mr Cappetto in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

The appeal be dismissed.
The application to adduce further evidence filed by the appellant mother on 15 November 2012 be dismissed.
There be no order as to costs.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 72 of 2011
File Number: SYC 7342 of 2008

Ms Cappetto

Appellant

And

Mr Cappetto

Respondent

And

Brian Samuel

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

By a notice of appeal filed 8 June 2011 Ms Cappetto (“the mother”) appeals against parenting orders made by Watts J on 11 May 2011 in relation to the two children of her relationship with Mr Cappetto (“the father”), B and S (“the children”). The father resists the appeal and seeks to maintain his Honour’s orders as does the Independent Children’s Lawyer.
His Honour ordered all previous parenting orders be discharged and that the children live with the father and he have sole parental responsibility for making all long term decisions in respect of the children. The orders required the father to give the mother 21 days notice of the decision he intends to make and is to give consideration to any view expressed by her.
His Honour made orders providing for the children to spend time with the mother subject to her compliance with orders that she not say or do anything that “endangers the safety, health or well-being of the children either physically or emotionally, act inappropriately or say anything inappropriate to or in the presence of the children, denigrate the father or attempt to undermine the effect of these orders” (Order 5). Order 6 provided for the time spent between the mother and the children to be supervised (Order 6). Order 7 provided that before…

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

AGLC: CAPPETTO & CAPPETTO [2013] FamCAFC 69
Case: [2013] FamCAFC 69
Decision Date

CaseChat Overview and Summary

The appeal was dismissed by the Full Court of the Family Court of Australia, which upheld the decision of the trial judge to award sole parental responsibility to the father and to order that the children live with him. The mother, Ms Cappetto, had appealed the decision of the trial judge, Watts J, and raised 13 grounds of appeal, including a complaint of bias on the part of the trial judge. The appeal was argued without recourse to the transcripts of the trial proceedings, which made it difficult to sustain many of the mother's challenges to the trial judge's decision. The Full Court found that the trial judge had carefully considered the evidence and made findings that were open to him. The mother's complaints of bias were rejected as the trial judge's function was to consider the evidence, determine that which was credible and reliable, and make findings based on that evidence. The Full Court also dismissed the mother's application to adduce further evidence in the appeal and refused to make a costs order in favour of the Independent Children's Lawyer.

Orders