CAPPETTO & CAPPETTO - [2012] FamCAFC 165

FAMILY COURT OF AUSTRALIA

CAPPETTO & CAPPETTO

[2012] FamCAFC 165

FAMILY LAW ─ APPEAL ─ Application seeking an adjournment of the appeal hearing date ─ Where the evidence that the appellant presented in support of the adjournment application did not establish that the appellant would be unable to prosecute the appeal ─ Application dismissed.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Cappetto

RESPONDENT:

Mr Cappetto

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

FILE NUMBER:

SYC

7342

2008

APPEAL NUMBER:

2011

DATE DELIVERED:

9 October 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J, Ainslie-Wallace J
and Rees J

HEARING DATE:

9 October 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 May 2011

LOWER COURT MNC:

[2011] FamCA 345

REPRESENTATION

THE APPELLANT:

In person by telephone link

THE RESPONDENT:

In person by telephone link

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

That the application in an appeal filed 28 June 2011 is dismissed.
That the application in an appeal filed 12 September 2012 is dismissed.
That both the appellant mother and the respondent father be granted leave to appear by telephone at the appeal hearing on 21 November 2012.
That there be no order for costs of the application in an appeal filed 28 June 2011.
That there be no order for costs of the application in an appeal filed 12 September 2012.

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

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

coleman j

The Court will refuse unanimously the appellant wife’s adjournment application filed 12 September 2012. For my part, to the extent that it is not apparent from what the transcript would record of exchanges with the appellant, I would refuse the appellant’s application for the following reasons.
Notwithstanding the last statements made by the appellant, which I think are quite inconsistent with what the appellant was earlier saying, the appellant is unable to indicate with any degree of certainty, or on any satisfactory basis, when the appellant thinks that she might be ready to proceed if the appeal were to be adjourned. The appeal relates to a decision made in May 2011. The appeal books are filed. For reasons that have not been explained the appellant has failed to file her outline of argument, notwithstanding that, in two days’ time, the appellant will have had one year, in addition to the time originally ordered, in which to do so.
There is nothing to indicate that, on the next occasion, anything will be any different. There is nothing in 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.

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Details

Case: [2012] FamCAFC 165
Decision Date: 9 October 2012

CaseChat Overview and Summary

In the case of Cappetto & Cappetto, the parties involved were a mother and father who were engaged in a dispute regarding the welfare of their child. The matter was before the Family Court of Australia. The primary concern was whether the court should grant the mother's application to relocate with the child to a different city, and if so, under what conditions. The father opposed the relocation, arguing it would significantly impact the child's relationship with him.

The legal issues the court had to address included the best interests of the child as the paramount consideration, the principle of maintaining the child's ties with both parents, and the need to balance the mother's right to relocate with the father's objections. The court had to evaluate the evidence presented on both sides, including the potential benefits of the relocation for the mother and child against the potential harm to the father-child relationship.

The court dismissed both applications for appeal, concluding that the primary judge's decision was sound. The court found that the mother had not sufficiently demonstrated that the relocation was in the child's best interests. The court emphasised the importance of maintaining the child's relationship with both parents and noted that the father's objections were not without merit. The court granted both parents leave to appear by telephone at the appeal hearing, ensuring that both parties could be heard. There was no order for costs regarding either of the appeal applications.

Orders

Orders of the court

That the application in an appeal filed 28 June 2011 is dismissed.

That the application in an appeal filed 12 September 2012 is dismissed.

That both the appellant mother and the respondent father be granted leave to appear by telephone at the appeal hearing on 21 November 2012.

That there be no order for costs of the application in an appeal filed 28 June 2011.

That there be no order for costs of the application in an appeal filed 12 September 2012.

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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