Sydney, NSW -- (SBWIRE) -- 08/28/2013 -- The issue in the case of Cape & Cape (2013)family court of appeal, is whether a child should be have been permitted to leave Australia pending the appeal of the father against the orders issued by the lower court which granted sole parental responsibility to the mother and allowing the child to live with her permanently in Germany.
The father was born in England and moved to Australia while the mother was born in Germany. The parties met in Germany, and the couple got married in Australia's months before their child was born.
In May 2010, the mother took the child to Germany with the father’s consent with the understanding that they would remain there until early 2011. The father visited them in September 2010, and the mother informed him that she did not want to return to Australia with the child. Eventually, the mother instituted proceedings in the Family Court of Western Australia to be permitted to relocate residence permanently in Germany with the child.
In her decision dated April 11, 2013, Crisford J awarded sole parental responsibility to the mother finding that the relationship between the father and son had “become completely fractured." The mother was permitted to relocate permanently with the child in Germany. Furthermore, the mother was ordered to have the Decision issued by the Court registered in a court of competent jurisdiction in Germany.
On May 8, 2013, the father filed an appeal against the April 11, 2013 Decision. Crisford J dismissed the application to stay the relocation order but issued an order requiring the mother to at least execute, if not register with a Family Court of Western Australia and a German court, an undertaking that she would return the child to Australia in the event that the father’s appeal is successful.
The father then filed a Notice of Appeal. The Full Court composed of Finn, Thackray and Aldridge JJ sustained the finding of the lower court that is in the best interests of the child to be able to go with his mother to Germany as soon as possible. In its Decision, the Full Court had the occasion to discuss the Child Protection Convention, particularly Articles 23 to 28, which dealt with the recognition and enforcement by a convention party of court orders issued by another convention party.
Based on the aforementioned provisions, the basic rule is that unless there are grounds for refusal of recognition and enforcement, measures that are taken by a contracting state must be recognized by operation of law in all the contracting states to the Convention.
The Full Court required to mother to file with the Principal Registrar of the Family Court of Western Australia and serve on the father and independent children’s lawyer documentary proof of registration of the April 11, 2013 orders in the Family Court of Western Australia and a German court with competent jurisdiction. The mother was also ordered to do the same with respect to the undertaking that she will execute providing for the return of the child to Australia if the father’s appeal is successful. The mother is then entitled to remove the child from Australia after the expiration of seven days of such a filing.
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Alan Weiss established aussiedivorce.com.au and criminallawyers-directory.com.au in 2005. Today, we are Australia leading boutique family law and criminal law websites. Our aims to revolutionize the way court proceedings are conducted.
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