Cape v Cape

CAPE
v
CAPE & ANOR
[2014] HCASL 12
P41/2013

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.
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.
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.
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.
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.
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.
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

CaseChat Overview and Summary

The case of CAPE v CAPE and ANOTHER involved the applicant, Cape, and the first respondent who had a child together. The central issue was whether the first respondent could relocate to Germany with the child and if she should be granted sole parental responsibility. The Family Court of Western Australia initially allowed the relocation and granted sole parental responsibility to the first respondent. Cape appealed this decision, which led to a series of legal proceedings.

The legal issues before the court included the merits of the primary judge's decision to allow the relocation and the granting of sole parental responsibility to the first respondent. Additionally, the court had to consider the conditions under which the first respondent could remove the child from Australia pending the appeal and the enforceability of Australian court orders in Germany. The Full Court of the Family Court initially allowed the appeal and set conditions for the removal of the child, but a differently constituted Full Court later dismissed the substantive appeal against the original orders.

The court concluded that there was no basis to doubt the Full Court's decision and that any appeal to the High Court would be futile. The Full Court had already dismissed the substantive appeal, and the orders made on August 2, 2013, were rendered ineffective. As a result, the application for special leave to appeal was dismissed.

The final orders were made pursuant to rule 41.10.5 of the High Court Rules 2004, directing the Registrar to dismiss the application. The application was dismissed by K.M. Hayne, S.M. Crennan, and the decision was recorded on February 12, 2014.

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