Chapa & Chapa - [2013] FamCAFC 52

FAMILY COURT OF AUSTRALIA

CHAPA & CHAPA

[2013] FamCAFC 52

FAMILY LAW – APPEAL – CHILDREN – APPEAL FROM FEDERAL MAGISTRATES COURT – Where the father appeals an interim decision the effect of which was that the parties’ two small children remain living with the mother in a different state pending trial – where the father contends the Federal Magistrate failed to apply the principles contained in s 67ZBB – whether the Federal Magistrate erred – consideration of s 67ZBB – where the Federal Magistrate did not err.

Family Law Act 1975 (Cth)

C & C (1996) FLC 92-651
Cowling & Cowling (1998) FLC 92-801

Goode & Goode (2006) FLC 93-286

Deiter & Deiter [2011] FamCAFC 82
Metwally v University of Wollongong (No 2) (1985) 60 ALR 68
Prantage & Prantage [2012] FamCAFC 84
R v Bates; R v Baker [2002] QCA 174
Re F(Children) [2012] EWCA Civ 828
Tayles v Davis [2009] VSCA 304

APPELLANT:

Mr Chapa

RESPONDENT:

Ms Chapa

FILE NUMBER:

PAC

4726

2012

APPEAL NUMBER:

2013

DATE DELIVERED:

9 April 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Murphy and Loughnan JJ

HEARING DATE:

20 March 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

18 December 2012

LOWER COURT MNC:

[2012] FMCAfam 1420

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Obradovic

SOLICITOR FOR THE APPELLANT:

Sheathers Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Snelling

SOLICITOR FOR THE RESPONDENT:

RJ Cole & Partners

Orders

The appeal be dismissed.
The appellant father pay to the respondent mother her costs of and incidental to this appeal in an amount to be agreed or, failing agreement, to be assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chapa & Chapa 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: EA5 of 2013
File Number: PAC4726 of 2012

Mr Chapa

Appellant

And

Ms Chapa

Respondent

REASONS FOR JUDGMENT

On 13 October 2012, the mother of X (born in 2006) and Y (born in 2009) relocated with the children from Sydney to Adelaide. She did so with neither notice to, nor the agreement of, the children’s father. That move precipitated interim proceedings heard by Halligan FM which concluded on 18 December 2012.
The father’s application would have seen the children return to live in Sydney pending trial. In that event he proposed that the children live with him, save on Tuesdays and Thursdays between 4.00pm and 8.00pm and on Saturdays from 11.00am to 4.00pm when, he proposed, the children would be with their mother. The father proposed no order for any time in the event that the children remained living with the mother in Adelaide. It was not part of the father’s case that he could or would move to Adelaide pending the trial.
The mother sought orders the effect of which was the children would remain…

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 Chapa & Chapa

Details

AGLC: CHAPA & CHAPA [2013] FamCAFC 52
Case: [2013] FamCAFC 52
Decision Date: 9 April 2013

CaseChat Overview and Summary

In the matter of Chapa & Chapa, the appeal was brought before the court by the father, the appellant, against the mother, the respondent. The central dispute centred on the legal and factual sufficiency of evidence presented in a family law matter. The appeal sought to overturn a decision that had been made in a lower court regarding the custody and care of the child born to the couple. The case was heard in the Family Court of Australia, where the father's appeal against the original decision was considered.

The primary legal issues the court needed to address were whether the lower court had correctly applied the relevant legal principles in determining the custody arrangements, and whether the evidence provided was sufficient to support the findings made. Specifically, the court needed to assess whether the lower court had given adequate weight to certain evidence and whether it had erred in its interpretation of the welfare of the child. The father argued that the lower court had overlooked key evidence and misapplied the relevant legal standards, leading to an unjust outcome.

In delivering its judgment, the court found that the lower court had correctly applied the relevant legal principles and that the evidence was sufficient to support its findings. The court held that the lower court had given appropriate consideration to all relevant evidence and had made its decision based on a thorough assessment of the child's welfare. The appeal was dismissed, and the father was ordered to pay the mother's costs of the appeal, in an amount to be agreed upon or assessed if necessary. This decision underscored the importance of the lower court's comprehensive approach in family law matters, particularly when determining the best interests of a child.

Orders

Orders of the court

The appeal be dismissed.

The appellant father pay to the respondent mother her costs of and incidental to this appeal in an amount to be agreed or, failing agreement, to be assessed.

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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