Gates and Capps (No.2)

Case [2012] FMCAfam 153


FEDERAL MAGISTRATES COURT OF AUSTRALIA

GATES & CAPPS (No.2) [2012] FMCAfam 153
FAMILY LAW – Sibling sexual abuse allegations – implications for previously made parenting orders – best interest considerations for children the subject of the proceedings and for child not the subject of proceedings – relevance of criminal proceedings in Children’s Court – criminal capacity of a child, doli incapax & considerations for sibling relationships.
Family Law Act 1975, ss.60B(1)(b), 60CA, 60CC(2)(b), 60CC(3)(b)
Criminal Code 2002 (ACT), s.26

A v A [1976] VR 298
Amador & Amador (2010) 43 Fam LR 268
B v B (Access) (1986) FLC ¶ 91-758
Briginshaw v Briginshaw (1938) 60 CLR 336
C (a minor) v Director of Public Prosecutions [1996] AC 1
Capps & Gates [2010] FMCAfam 756
Fardon v Attorney-General (Qld) (2004) 223 CLR 575
Goode v Goode (2007) 36 Fam LR 422
In re G (a minor) [1987] 1 WLR 1461
Johnson & Page (2007) FLC ¶93-344
Leveque v Leveque (1983) 54 BCLR 164
Luther & Luther [2010] FMCAfam 761
M v M (1988) 166 CLR 69
Maluka v Maluka (2011) 45 Fam LR 129
Marriage of M (1987) 11 Fam LR 765
Mazorski v Albright (2008) 37 Fam LR 518
McCall & Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC ¶93-375
N v S (1995) 19 Fam LR 837
Napier v Hepburn (2007) 36 Fam LR 395; (2006) FLC ¶93-303
Partington (aka Bande) v Cade (No.2) (2010) 42 Fam LR 401
Potter v Potter (2007) 37 Fam LR 208
R v JA (2007) 161 ACTR 1; 212 FLR 309; 174 A Crim R 151
R (A Child) v Whitty (1993) 66 A Crim R 462

Aristotle, Nicomachean Ethics; Rhetoric
R. Chisholm, “How to Treat Allegations of Violence and Abuse: Amador & Amador,” (2010) 24 Australian Journal of Family Law 276-282
T. Crofts, “Doli Incapax: Why Children Deserve its Protection,” (2003) 10(3) Murdoch Electronic Journal of Law
T. Crofts, “The Criminal Responsibility of Children,” in Children and the Law in Australia (G. Monahan & L. Young, eds.) (Sydney: LexisNexis Butterworths, 2008) pp.167-186
C. Cunneen, “Young People and Juvenile Justice,” in Children and the Law in Australia (G. Monahan & L. Young, eds.) (Sydney: LexisNexis Butterworths, 2008) pp.187-203
J. Fogarty, “Unacceptable risk – A return to basics,” (2006) 20 Australian Journal of Family Law 249-295
A.W.G. Kean, “The History of the Criminal liability of Children,” (1937) 53 Law Quarterly Review 364

P. Foot, Natural Goodness, (Oxford: Clarendon Press, 2001)
P. Foot, Virtues and Vices, (Oxford: Clarendon Press, 2002)
A. MacIntyre, After Virtue: A Study in Moral Theory, (Second Edition) (Notre Dame: University of Notre Dame Press, 1984)
Harrap’s Concise French & English Dictionary (London: 1985)
M. Nussbaum, The fragility of goodness: Luck and ethics in Greek tragedy and philosophy, (Cambridge: Cambridge University Press, 1986 [reprint 1995])
R. Scruton, Sexual Desire: A Philosophical Investigation, (London: St Martin’s Press, 1986 [reprint 2001])
W. Shalit, A Return to Modesty: Discovering a Lost…

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AGLC
Gates and Capps (No.2) [2012] FMCAfam 153
Case
[2012] FMCAfam 153
Decision Date

CaseChat Overview and Summary

The case of Gates and Capps (No.2) involved the parents of three children, [X], [Y], and [Z], and focused on the arrangements for the children spending time with their mother. The Family Court of Australia was tasked with determining the specific conditions under which the children could spend time with their mother, especially considering the age and circumstances of the oldest child, [Z].

The primary legal issues before the court were whether the two younger children, [X] and [Y], should be allowed to spend overnight time with their mother without their older sibling, [Z], being present, and under what conditions they could spend daytime with their mother. The court had to balance the best interests of the children with the statutory requirements of the Family Law Act 1975.

The court found that until further order, the children [X] and [Y] should not spend overnight time with their mother when their older sibling [Z] is spending time with her. However, they could spend daytime with their mother, provided that two adults are present whenever [Z] is also present. The court also appointed Ms Burgess as the Independent Children’s Lawyer for the children [X] and [Y], requesting that the necessary arrangements be made promptly. The court further directed that each party must provide the Independent Children’s Lawyer with copies of all relevant documents within seven days of notification. The matter was adjourned to allow for further submissions and consideration of related proceedings in the ACT Children’s Court.

Orders

Orders of the court

1.

Until further Order, the children [X] born [in] 2005 and [Y] born [in] 2007 (‘the children’) are not to spend any overnight time with the Mother while-ever the child [Z] born [in] 1998 (‘[Z]’) spends overnight time with his Mother.

2.

Until further Order, the children spend day time with the Mother as agreed subject to there being two (2) adults present whenever the child [Z] is also present.

3.

Pursuant to Section 68L of the Family Law Act 1975 Ms Burgess of the Legal Aid Office, ACT be re-appointed as the Independent Children’s Lawyer for the children [X] born [in] 2005 and [Y] born [in] 2007. The Legal Aid Office, ACT, is requested to make these arrangements as soon as practicable.

4.

Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.

5.

Each party is to make available to the Independent Children’s Lawyer within 7 days of notification, copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports.

6.

The matter be adjourned for further mention to 7th March 2012 at 2:00pm.

THE COURT NOTES THAT:

A. The Court requests a representative for the Director General of the ACT Community Services Directorate attend Court on 7th March 2012 at 2:00pm.

B. Subject to (a) further submissions, and (b) the outcome of proceedings in the ACT Children’s Court on 2nd March 2012, on 7th March 2012 it would be the Court’s intention to allow the children ([X] and [Y]) to spend overnight time with their Mother while their brother [Z] also spent time overnight. Appropriate supervision orders would continue until further order.

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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