Cape v Cape

[2014] HCASL 12

CAPE

v

CAPE & ANOR

[2014] HCASL 12
P41/2013

1. On 11 April 2013, the Family Court of Western Australia (Crisford J) made orders permitting the first respondent to relocate to Germany with the child of her relationship with the applicant, and according her sole parental responsibility for the child.

2. On 5 July 2013, Crisford J dismissed an application made by the applicant for a stay of the orders made on 11 April 2013, pending the outcome of his substantive appeal against those orders.  Her Honour ordered that upon the first respondent executing an undertaking to return the child to Australia in the event that the applicant's appeal was successful, the first respondent was entitled to remove the child to Germany on or after 26 July 2013.

3. The applicant appealed to the Full Court of the Family Court of Australia (Finn, Thackray and Aldridge JJ) against the orders of the primary judge made on 5 July 2013.  On 2 August 2013, the Full Court allowed the appeal, set aside the primary judge's orders and made fresh orders.  Those orders relevantly provided that upon the first respondent serving the applicant and the Independent Children's Lawyer with documentary proof that she had obtained from a court of competent jurisdiction in Germany, either (i) advance recognition; or (ii) a declaration of enforceability in Germany; or (iii) registration in a German court, of the orders of the Family Court made on 11 April 2013 and the orders of the Full Court, she could remove the child from Australia pending a substantive appeal.

4. On 29 October 2013, a differently constituted Full Court (Bryant CJ, Thackray and Walters JJ) dismissed the applicant's substantive appeal against the orders of the primary judge made on 11 April 2013.

5. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

6. We see no reason to doubt the correctness of the conclusions reached by the Full Court.  Further, by the orders made on 29 October 2013, a Full Court has dismissed the applicant's substantive appeal against the orders made on 11 April 2013, rendering futile any special leave application in respect of the orders made on 2 August 2013.  An appeal to this Court would have no prospects of success.

7. Pursuant to r 41.10.5 of the High Court Rules 2004 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
12 February 2014 S.M. Crennan