Argyri & Conroy
[2025] FedCFamC1A 6
•30 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Argyri & Conroy [2025] FedCFamC1A 6
Appeal from: Argyri & Conroy [2024] FedCFamC2F 1168 Appeal number: NAA 224 of 2024 File number: MLC 5516 of 2023 Judgment of: CAMPTON J Date of judgment: 30 January 2025 Catchwords: FAMILY LAW – APPEAL – Where the appellant will not comply with an order for security for costs staying the prosecution of a parenting appeal – Where the grounds of appeal do not clearly articulate any form of legal, factual, or discretionary error – Where the appellant is afforded an opportunity to be heard as to why the Notice of Appeal should not be struck out – Where the grounds are incompetent – Where the appeal is summarily dismissed – Order for costs in favour of the respondent. Legislation: Family Law Act 1975 (Cth) Pt VII, s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35 and s 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 12.52, 13.39
Cases cited: Beale v Harvie [2023] FedCFamC1A 181
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 76
The Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Charton & Sedgley [2023] FedCFamC1A 205
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Newett & Newett(No 9) (2023) FLC 94-133; [2023] FedCFamC1A 23
Newett and Newett (No 2) (2021) FLC 94–051; [2021] FedCFamC1A 11
Pachris & Tajir (No 3) [2023] FedCFamC1A 230
Re Darley (No 2) (2023) 379 FLR 234
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2023] FedCFamC1A 112
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 43 Date of hearing: 21 January 2025 Place: Sydney (via Webex) The Appellant: Litigant in person Counsel for the Respondent: Ms O’Connell Solicitor for the Respondent: Fiona McGregor Family Lawyer Pty Ltd ORDERS
NAA 224 of 2024
MLC 5516 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ARGYRI
Appellant
AND: MS CONROY
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
30 JANUARY 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 31 December 2024 is dismissed.
2.The Notice of Appeal filed 2 September 2024 is summarily dismissed.
3.The appellant pay the costs of the respondent fixed in the sum of $20,000 within 60 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Argyri & Conroy has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By way of a Notice of Appeal filed on 2 September 2024, Mr Argyri (“the father”) appeals from final parenting orders made on 5 August 2024 pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 2) as to the child of he and Ms Conroy (“the mother”), X (“the child”), born on 29 August 2017.
The father lives in Country B. The child has at all times lived with the mother in Melbourne, Australia.
Appellate proceedings may be summarily dismissed if they have no reasonable prospect of success, even if the appeal is not hopeless or bound to fail (s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”)).
The father, appearing electronically with the benefit a Country B language interpreter, was invited to show cause why the appeal should not be summarily dismissed on account of it having no reasonable prospect of success. He was unable to discharge that onus. The appeal will be summarily dismissed.
BACKGROUND
The father was born in 1971 and is currently 53 years old. The mother was born in 1978 and is currently 46 years old.
The child has spent time with the father in the presence of the mother. In mid-2018 and early 2019, the mother travelled with the child to Country B to visit the father.
Process pursuant to the Hague Convention, initiated by way of the Central Authority at the father’s request, was not unsuccessful.
On 23 May 2023, the father filed an Initiating Application broadly seeking orders that he have sole parental responsibility (as it was then) for the child, for the child to live with him in Country B and spend time with the mother. On 21 June 2023, the mother filed a Response to an Initiating Application seeking different parenting orders.
On 28 June 2023, the parties entered consent interim parenting orders. A Child Impact Report was produced by Ms C, Forensic Psychologist on 12 September 2023. The father said that he engaged electronically from Country B with the expert in the preparation of that report.
On 8 November 2023, the father’s solicitors ceased to act. The father appeared without representation electronically from Country B before a judicial registrar on 13 November 2023 and before another Division 2 judge on 25 March 2024. Orders were made for the father to file his trial material by 8 July 2024 and listing the matter for trial on 5 August 2024. Notations were made identifying the possible consequences to the parties should there be non-compliance with the trial directions or a failure to appear at trial, including that the matter be heard on an undefended basis.
A Family Report was produced on 9 July 2024. The father engaged in the interviews with the single expert and the child electronically from Country B.
The father did not file any material for trial pursuant to the orders made 25 March 2024. He had leave to appear electronically at the trial and was sent a link by email for that purpose (at [7]). The father advised the court by return email on 5 August 2024, being the morning of the trial, that he would not be participating or appearing. The primary judge determined the matter, delivering ex tempore reasons and making the orders under challenge that provide for the mother to have sole decision-making responsibility for the child, for the child to live with the mother, and spend professionally supervised time with the father on up to four occasions each year in Melbourne and have Skype/FaceTime communication with the child once each calendar month with the mother having capacity to monitor the calls and to terminate them, should she determine the father’s conduct to be inappropriate. Orders were made restraining the father from denigrating the mother in presence or hearing of the child, requiring the mother to provide the father with progress summaries each six months as to the well-being of the child and permitting the father to receive copies of school reports together with orders permitting the father to send letters, cards and gifts to the child.
The reasons record the primary judge finding that the child’s primary attachment was to the mother and that the child’s relationship with the father was a well-established secondary attachment (at [45]). The primary judge accepted that the child enjoys FaceTime calls with the father (at [44]). Findings were made as to the mother supporting the child’s relationship with the father (at [49]) and as to the child being detrimentally exposed to parental conflict (at [44]). The primary judge accepted the mother’s evidence that the father exposes the child to adult conversations, continually denigrating the mother during Skype calls with the child. Findings were made as to the father exhibiting a lack of insight during the calls and he seeking to undermine the secure relationship between the mother and the child (at [33]–[36]). Findings were made as to the father’s historical and current threats to remove the child from the mother’s care identifying prior litigation initiated by the father in Country B and more recent threats of that character made by him (at [34], [39], and [40]). The primary judge concluded that the cumulative impacts of the father’s conduct grounded the mother’s high level of concern for the safety of the child in the father’s care (at [40]), and that allowing the father an avenue to continue to threaten the mother will have a negative effect on her well-being and safety. The prospective unacceptable risk of harm to the child’s emotional and psychological safety posed by the father could be mitigated by way of professionally supervised time in Australia and for the mother to be permitted to monitor Skype or FaceTime calls with a capacity to terminate them should she determine the father’s contact to be inappropriate (at [37], [41], and [50]).
On 9 January 2025, after each party had filed a Summary of Argument, orders were made by an appeal judicial registrar on the application of the mother as follows:
1.Within 7 days, the respondent shall pay to the applicant’s solicitors on the record the sum of $AUD12,500 by way of security for the applicant’s party/party costs of and incidental to the appeal, which sum shall be held on trust until this appeal is determined and/or further orders are made as to costs.
2.The matter remains listed before the Honourable Justice Campton on 21 January 2025.
The father maintains that it is “impossible” for him to pay the security sum, that he has no intention to pay it, and that he will pursue the matter to the High Court. The time for him to review the delegated orders is yet to expire. The appeal judicial registrar maintained the listing of the appeal to permit the father to show cause why the appeal should not be summarily dismissed.
THE APPEAL
The purpose of a Notice of Appeal is to identify with precision in the grounds of appeal the errors that the father asserts were made by the primary judge. It sets out the metes and bounds of the appeal (Pachris & Tajir (No 3) [2023] FedCFamC1A 230). The importance of identifying the error in the judgment under appeal in the construction of the grounds of appeal ought not be discounted or overlooked, notwithstanding the father is unrepresented. As observed by the Full Court in Newett and Newett (No 2) (2021) FLC 94–051 at [34], “unless an error is reasonably obvious, it is for an appellant to identify and establish the asserted errors.”
The grounds of appeal are:
1. In all phases of the proceedings at the Australian Central Authorities and in the Court Hearings [the father] has found elements of error and of opposition to his legitimate requests.
1) The first error was committed by the Director International Family Law Section, [Ms E] dated 15 December 2020 (See case file AJA/80-136-20, Ref 3801).
In that letter [Ms E], at [the father’s] regular request for the right of visit of [X] in [Country B], confirms to the [Country B] Central Authorities that [the mother] granted [X’s] enrollment in the [Country B] school in [City F] for the school year that in [Country B] starts in September 2020 and it always starts on Septembers. She writes that there has been some sort of agreement for the school-year, "as a recent email from the mother confirms".
[Ms E] in this way confirmed the right of visit for the [Country B] schoolyear 2020/2021, that means from September 2020 to June 2021.
In the document that [the father] provides the Appeal Court we see that the date in which [Ms E] wrote was the 15 December 2020, that means three months AFTER the school started.
The evident error by [Ms E], whatever it may be considered, de facto denied [the father’s] right to have his son in [Country B] for the school-year 2020/2021.
2) During the hearing in November 2023, before Judge Agostinelli, [the father] remained without the interpreter for many hours and the hearing happened during the [Country B] night-time as usual. At the end of that hearing [the father] felt as there was the interest to make him sign a document in which he accepted the habitual residence of the child in Melbourne and to allow the child not to remain in the airports watchlist. [the father] refused.
C) Nine days or so before the hearing before Her Honour's Judge Bender I got an email from Her Chambers in which they were inviting [the father] to be in presence at Court on that date. [The father] asked instead to be online considering the trip to Australia impossible for timing and costs. After an emails exchange with the counterpart's solicitor we understood that nobody at the Chambers knew that [the father] was resident in [Country B]. From there [the father] understood that they did not know where he lived. D) The Final Hearing before Her Honour Judge [...] is described here.
We consider these Orders unjust and not based on no factual evidence, with [the father] forced for financial hardship not to be present at trial, and without a lawyer. The Reasons for Judgement are considered based on no factual evidence and strongly unbalanced. We dispute then every single Order by Her Honour Judge [...] and we consider the Orders not corresponding at all with the factual evidence. The consideration for International Laws and the Hague Convention is null, never mentioned.
The consideration for [the father’s] observations and proves is in our view, null. The trust for the [Country B] Central Authorities is null, according to the Reasons.
The consideration of the [Country B] nationality of the [Country B] citizen [X] (C.F. WNTBNG17M29Z700L) and his rights is null.
The veradicity of affidavits, seeing the Reasons for Judgement, is not confirmed, in our view.
For these reasons we dispute the Orders and the Reasons for Judgement in their entirety according to the following Hague Convention articles, Universal Declaration of Human Rights, similarly CEDU articles:
Art.8 Cedu
Art. 5, 10, 21, 35, 39 Hague Convention
Art.4 similarly Cedu
(As per the original)
The orders under challenge made by the primary judge embodied a discretionary judgment made under Pt VII of the Act. As advised to the father at the show cause hearing, the grounds upon which a discretionary judgment may be challenged on appeal are well known (House v The King (1936) 55 CLR 499 at 504–505). The complaints in the Notice of Appeal do not fall within the rubric of those principles.
Ground 1 in the Notice of Appeal and references to Ms E relate to the unsuccessful Hague Convention process. That determination was not the subject of appeal. A collateral attack upon it in this appeal is impermissible. Ground 2 is a complaint as to the conduct of a procedural listing before a judicial registrar that, if subject to challenge, ought to have occurred by way of review of that exercise of delegated judicial power (r 12.52 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)). Ground C is directed to the trial listing orders made by a Division 2 judge than the primary judge conducting the compliance and readiness hearing. The complaints made by way of Grounds 2 and C to procedural orders and directions to regulate the future conduct of the proceedings are not “judgments” from which an appeal validly lies under s 26(1) of the FCFCOA (Charton & Sedgley [2023] FedCFamC1A 205). They are ill-founded and incompetent.
The Notice of Appeal makes other broad complaints as to a lack of procedural fairness, errors of law by failures to comply with international charters and conventions, errors of fact, and inadequate reasons. The father’s Summary of Argument repeats that narrative laced with a broad recount of events and circumstances from his perspective. He conceded that his focus in prosecuting the appeal was because, in his opinion, the orders under challenge are “extreme and cruel”.
It may be that the father has failed to exhaust remedies available at first instance. Rule 10.13 of the Rules provides as follows:
10.13 Varying or setting aside orders
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party…
While this appellate Court has jurisdiction to entertain the show cause opportunity in this appeal from the orders under challenge, the father could, by application to the Federal Circuit and Family Court of Australia (Division 2) in its original jurisdiction pursuant to r 10.13(1)(a), challenge the orders made on 5 August 2024 in his absence (Beale v Harvie [2023] FedCFamC1A 181 at [15]). Such challenge, if made and successful, would render this appeal nugatory. Significant public policy reasons are self-evident requiring parties to take a course which is “more appropriate, and far less expensive” (Re Darley (No 2) (2023) 379 FLR 234 at [55]). That said, for the reasons that follow, the father may not enjoy prospects of success in any challenge to the orders subject to appeal by way of r 10.13(1)(a).
APPLICATION IN AN APPEAL
On 31 December 2024, the father filed an Application in an Appeal seeking to adduce further evidence. Section 35(b) of the FCFCOA Act gives an unfettered discretion to admit further evidence on appeal.
The discretion to admit further evidence on appeal “exists to serve the demands of justice” (Hsiao v Fazarri (2020) 270 CLR 588 at [43]) and is remedial in nature. The High Court in CDJ v VAJ (No 2) (1998) 197 CLR 172 (“CDJ v VAJ”) noted at [109] that “its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous”. It is relevant to have regard to the nature of the evidence sought to be led on the appeal, its weight and relevance to the issues, and the reasons that it was not relied upon at trial.
The categories of documents sought to be adduced by the father were documents as to the dismissal of his complaint as to “Abduction of Minor” in a Country B jurisdiction said to have occurred in September 2022, a document from Police in City G as to a dog attack the child suffered, documents as to the father requesting a psychiatric report from the state coroner, and some video transcriptions and photos.
Not unexpectedly, the father could not identify the grounds of appeal to which each category of document related (r 13.39(2)(b) of the Rules). The evidence sought to be adduced was available to the father at the time of the trial. It does not fall into the category of that identified by the High Court in CDJ v VAJ. I am not satisfied that this further evidence has any impact on the appeal and thus does not meet the requirements identified by the High Court, namely that it is necessary to receive it to avoid an error “which cannot be otherwise remedied by the application of the conventional appellant principles” (CDJ v VAJ at [109]). The Application in an Appeal to adduce further evidence will be dismissed.
CONSIDERATION
As to the procedural fairness complaint, the primary judge was satisfied that the father was aware of the hearing and had the option to attend electronically, but that he had chosen not to do so (at [9]). The primary judge found that the mother had complied with her obligations pursuant to listing orders as to the filing of trial material, and that it was in the best interests of the child that the matter came to a final resolution (at [10] and [11]). Leave was therefore granted for the mother to proceed on a final and undefended basis.
The father asserted that he was “was eager to participate” in the trial. He said at the show cause hearing that he did not appear electronically because he could not pay the cost of the setting down for hearing fee. He later tellingly conceded “that’s why I gave up”.
As a concept, and importantly for the father in this appeal, procedural fairness is concerned only with the fairness of the hearing, not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]). Procedural fairness requires each party to be given an adequate opportunity to be heard and present their case (Kioa v West (1985) 159 CLR 550 at 582). It is only the opportunity to present evidence and argument which the interest of justice requires, not the actuality of it.
The father was afforded every opportunity to file and serve material by way of evidence for trial and to appear at the trial to participate in the testing of evidence by cross-examination of the mother and the experts and to make submissions. He elected not to avail himself of those opportunities. He did not explain on appeal:
(a)Why he could appear and engage electronically for the purposes of the listings before the judicial registrar, before another Division 2 judge on 25 March 2024, and for the preparation of each of the child impact report and the Family Report, but could not electronically appear when the matter was listed for trial, other than his concession that he “gave up”; and
(b)Why he could not file and serve his trial material.
The primary judge read and considered the prior affidavits filed by the father for the purposes of the 2023 interim hearing as prepared by his then solicitors (at [9] and [30]). The reasons identify consideration of father’s concerns as to the child’s psychological welfare, his contentions as to the mother’s anger management issues, and his assertion that the hypervigilance and overprotective nature of the mother’s parenting limits the child’s development, leading to the child becoming anxious, presenting as afraid and upset in the mother’s care (at [19] and [20]). The reasons record his evidence as to his concerns as to the child living with the mother and his desires for the child to experience his Country B heritage and other educational and extracurricular pursuits (at [20] and [48]).
The contention that the father did not have an opportunity to be heard and present his case has no merit and is wholly misconceived.
As a starting point to the asserted legal error as to a failure to consider or apply the provisions of the European Convention on Human Rights, the Universal Declaration of Human Rights, the Hague Convention, and the Convention on the Rights of the Child, the father did not explain on appeal how the primary judge came to fail to consider a matter he viewed as relevant when he elected not to participate at trial, taking the opportunity to identify the matters subject to complaint. The father misunderstands the role of United Nations charters and international conventions or treaties to which Australia is a party or member in domestic litigation. Australia’s obligations are given effect in the various provisions of the Act (Newett & Newett(No 9) (2023) FLC 94-133). The complaint as to legal error is baseless.
The father’s complaints as to factual errors were that:
(a)The expert authors of the Child Impact Report and the Family Report recorded errors of fact in the reports as to historical matters including what the mother had told them and as to what he had said to them and his presentation. He said that some of their conclusions were wrong, including that an expert psychologist in Country B had told him that one expert author had “pushed” the child to “lie” and that this was illegal. The complaints are not competent grounds of appeal as they do not allege error by the primary judge.
(b)The perjury committed by the mother and her evidence containing “untruths” and “false evidence”, being;
(i)That the father does not pay child support as assessed and it is in arrears. This subject matter did not feature in the reasons; and
(ii)The mother’s fears that, in the event the child was to spend time with the father in Country B, the father would instigate proceedings to prevent the child from returning to Australia or the mothers care (at [21], [34] and [39]) were baseless, being a fiction to prevent the child returning to Country B because the father’s Complaint for Abduction of a Minor at a Country B Court had been already dismissed in September 2022; and
(iii)The mother’s evidence as to the father’s denigration, including that the mother was not the child’s mother, and that he intended to issue proceedings in Country B and sue the mother. The father conceded at the show cause hearing that his denigration of the mother in the child’s presence on occasion was a product of the mother’s provocation and her failing to facilitate the relationship between he and the child.
The father had the opportunity to test the evidence of the expert authors and the mother at the trial. He elected not to do so. Appellate error is not established because untested evidence did not accord with the views of the father. The complaint as to factual error is futile.
The complaint made as to inadequate reasons is that “mistakes” were made by the primary judge in failing to “check” the accuracy of affidavits and statements, and because there was “no sign that a preliminary investigation phase has been done”. The father described this process as a requirement of the judge to undertake an investigation to “find the truth. His conclusion is that the reasons are “redundant because they are without solid proof”. The father misapprehends the role of the primary judge in conducting the parenting enquiry that must be based on the evidence. The father was critical of the reasons of the primary judge because they did not include a consideration of “videos photos and evidence by [him]”. As identified, the primary judge considered the content of the prior affidavits of the father as prepared by his then solicitors.
The purpose of providing reasons is to ensure that the parties understand why a decision was made (Bennett and Bennett (1991) FLC 92-191). The reasons under challenge are cogent and clear. Any complaint as to the reasons being inadequate is fallacious.
CONCLUSION AND COSTS
The appeal is wholly devoid of merit and incompetent, it not making any legitimate contention of appealable error. It has no reasonable prospect of success and so it should be dismissed.
The mother filed a costs schedule in compliance with the Rules and the Appeal Judicial Registrar’s orders itemises the wife’s costs on a scale basis at $27,305. She seeks that the father pay her costs fixed in the sum of $20,000. The father opposes an order for costs of the appeal in the mother’s favour.
The relevant principles as to costs are well settled. While the starting position established by s 117(1) of the Act is that each party pays their own costs, s 117(2) allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 117(2A) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 117(2A) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient.
The father works part time as a public servant in Country B earning a salary of approximately EUR 750 per month. He said that he expends all his income on living expenses and owes significant debt by way of unpaid legal fees relating to the proceeding and having no property or savings.
The father did not pursue, as he ought to have prior to filing an appeal, the more cost-effective avenue by way of an application pursuant to r 10.13(1)(a) to challenge the orders made on 5 August 2024. He has been wholly unsuccessful in the appeal and put the mother to substantial unnecessary cost. The impecuniosity of the father in these circumstances, without more, is not a sufficient reason for depriving the mother of her costs. The circumstances justify an order for costs.
The father did not suggest that the order sought by the mother for her costs was unreasonable. The father will pay the mother’s costs fixed in the sum of $20,000 within 60 days.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 30 January 2025
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