Byquist & Ieri (No 2)
[2024] FedCFamC1A 217
•20 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Byquist & Ieri (No 2) [2024] FedCFamC1A 217
Appeal from: Ieri & Byquist [2024] FedCFamC1F 436 Appeal number: NAA 197 of 2024 File number: BRC 13092 of 2022 Judgment of: MCCLELLAND DCJ, SCHONELL & MCNAB JJ Date of judgment: 20 November 2024 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the appellant appeals from interim parenting orders – Where the appellant alleges Australia is a clearly inappropriate forum – Procedural fairness – Where no error is demonstrated – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Child Protection Act 1999 (Qld)
Family Law Act 1975 (Cth) ss 69, 90SM, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction
United Nations Convention on the Rights of the Child art 3.1
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter and De Winter (1979) FLC 90-605
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ieri & Byquist [2024] FedCFamC1F 436
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lietzau & Lietzau [2024] FedCFamC1A 94
LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9
Metwally v University of Wollongong (1985) 158 CLR 447; [1985] HCA 28
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Nada & Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207
Neil v Nott (1994) 121 ALR 148; [1994] HCA 23
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369; [2023] HCA 15
Warbrick & Warbrick (2021) FLC 94-030; [2021] FamCAFC 101
Number of paragraphs: 63 Date of hearing: 31 October 2024 Place: Heard in Brisbane, delivered in Sydney The Appellant: Self-represented litigant Counsel for the Respondent: Ms Pendergast Solicitor for the Respondent: Redhill Legal ORDERS
NAA 197 of 2024
BRC 13092 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BYQUIST
Appellant
AND: MR IERI
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, SCHONELL & MCNAB JJ
DATE OF ORDER:
20 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed 4 October 2024 is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $7,740.22 such amount to be paid from the appellant’s entitlement arising from any final order made pursuant to s 90SM of the Family Law Act 1975 (Cth).
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 pseudonym Byquist & Ieri has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, SCHONELL & MCNAB JJ:
By Amended Notice of Appeal filed 4 October 2024, the appellant mother (“the appellant”) appeals interim parenting orders made 28 June 2024. On that same day, the primary judge declined to make an order staying the Australian proceedings on the ground that Australia was a clearly inappropriate forum.
BACKGROUND
The appellant was born in Hungary and lived there until 2007 when she moved to Australia. The appellant is an Australian citizen.
The respondent was born in Country C. He has lived in Australia since November 2010 and is also an Australian citizen.
The appellant and the respondent met in 2015 before commencing cohabitation in 2016 and marrying in 2017.
Their only child was born in 2019 (“the child”).
On 19 January 2021, the appellant removed the child from Australia to Hungary without the respondent’s consent.
On 6 February 2021, the respondent sought the child’s return to Australia under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
In July 2021, a Hungarian Court determined that the child’s habitual place of residence was Australia and ordered the appellant to return the child to Australia by 31 August 2021.
The appellant appealed to the Capital City Court which appeal was unsuccessful, and she was again ordered to return the child to Australia, this time by 29 November 2021.
The appellant then appealed to the Curia (which the primary judge described as the equivalent of the High Court of Australia). This appeal was also unsuccessful, and the appellant was again ordered to return the child to Australia, this time by 1 June 2022 and failing that, to deliver the child to the respondent or his legal representative on 15 June 2022.
On 19 October 2022, the respondent commenced parenting and property proceedings in the Federal Circuit and Family Court of Australia (Division 2). A number of orders were subsequently made for the appellant to file and serve a Response by 7 December 2022.
On 11 January 2023, the appellant filed a Response seeking orders for sole parental responsibility and for the child to live with her in Hungary. Somewhat inconsistently, she also asserted that Australia was a clearly inappropriate forum and sought a permanent stay of the Australian proceedings. She nevertheless sought to continue the financial proceedings.
The appellant then appears to have sought orders from a Hungarian court for the child to live with her and for her to have sole parental responsibility. Such an application was refused on jurisdictional grounds and a subsequent appeal was dismissed on 17 May 2023, with costs ordered against the appellant.
The appellant has made no attempt to comply with any order of the Hungarian courts.
In May 2023, the respondent travelled to Hungary to collect the child having been informed by the Hungarian authorities that the appellant and child had been detained at the Hungarian border as a result of an ‘Interpol Yellow Notice’. The child was not delivered to the respondent, and he subsequently returned to Australia.
The appellant appeared before the primary judge via audiovisual link. The issues identified as requiring a determination were the appellant’s application for a stay of the Australian parenting proceedings on the ground that Australia was clearly inappropriate forum and the respondent’s application for interim parenting orders.
At the time of the hearing, the appellant and the child were in Serbia.
The primary judge’s reasons published as Ieri & Byquist [2024] FedCFamC1F 436 record the following:
13The [respondent] relies upon a report prepared by Hungarian lawyer, [Dr G] dated 17 March 2023, prepared for the purposes of assisting this Court in understanding what orders it could make to assist the Hungarian Courts in having the child returned to Australia. [Dr G] opined that:
(a)an Australian order that provides for the [respondent] to have sole parental responsibility for the child and for the [appellant] to deliver the child to the [respondent] at a particular time and date “may facilitate the efficiency of the Hungarian legal process in having the child returned to Australia”;
(b)both interim and final Australian parenting orders “can be recognized and enforced in Hungary provided that it is made clear in the order that it is legally binding or is subject to preliminary execution in Australia”;
(c)as for the “recognition and enforcement” of an Australian parenting order in Hungary, “the 1996 Hague Convention, the Hungarian Act on Private International Law and the Hungarian Act on Judicial Enforcement apply, and an exequatur procedure is necessary”; and
(d)if there is a risk that the [appellant] will not comply with Australian parenting orders, that the [respondent] request the Hungarian court “issue an enforcement clause, so that the actual enforcement procedure could be instituted”.
…
Report prepared by [Ms J]
15The [appellant] relies upon a report prepared by [Ms J], a psychologist with the [Serbian], [child protection agency] dated 12 May 2023. The report sets out the material the [appellant]’s legal representative provided the report writer.
16[Ms J] sets out a number of bodies she consulted “in order to assess the situation…in the most accurate way and to write a professional opinion”, including the [appellant]’s legal representative and the Embassy of Hungary.
17The conclusion reached by the report writer that “there is an extremely high risk that… the child will be returned to Hungary and handed over the [respondent], where she could be a victim of physical danger and psychological trauma” is a conclusion based solely on information provided by the [appellant] and without any input from the [respondent]. It is clear that the report writer relied heavily on the [appellant]’s version of events with little (if any) regard to the Hungarian Courts’ decisions. There is no indication that the report writer was provided with any material filed by the [respondent] in either the Australian or Hungarian proceedings, nor that the [respondent] was interviewed for the report or that the [respondent]’s legal representatives (in either Australia or Hungary) were contacted.
18The report writer questions why “an analysis of [the [appellant] and the [respondent]] personalities has not been completed to date”. Frankly, that report writer and the [appellant] simply misunderstand the legal process. Such an assessment of the parents is likely to be undertaken by this Court at the appropriate time.
19The [respondent] says the Court should disregard the report of [Ms J] and give it no weight. I agree with [counsel]’s submission that the report contains opinions based on a historical narrative given by the [appellant] only. I find that the report lacks little probative or forensic value.
Report prepared by [Dr H]
20In compliance with Orders made 4 May 2023 which required the [appellant] to file an affidavit “in English or properly translated, by a person she claims to be a Hungarian Law expert which she says will challenge the expert evidence adduced by the [respondent] from his expert [Dr G] filed 26 April 2023”, the [appellant] filed an affidavit on 5 June 2023 affirmed by her solicitor, [Dr H] which annexes a report prepared by [Dr H] dated 4 June 2023. That report purports to challenge the expert evidence adduced by the [respondent] from [Dr G]. [Dr H] opines that:
Returning the child to Australia would place the child in imminent danger and therefore, the return of the child cannot be enforced. Having the child returned to Australia can also not be enforced with her separation from the [m]other.
In the present case, in my view, the Hungarian Court has jurisdiction to decide on the issue of parental custody, so the Australian court must made a decision to that effect.
21[Dr H] was tasked with challenging the evidence of [Dr G], who was engaged, pursuant to an Order dated 25 January 2023, to give evidence as to any orders that could be made in Australia “that may aid or assist the Hungarian legal process in having the child returned to Australia, as the Hungarian Court has ordered”. With respect to [Dr H], the issue of jurisdiction had already been determined by the Hungarian Courts at the time of preparing his report. The Hungarian Courts determined that they did not have the requisite jurisdiction to make parenting orders relating to [X]. For [Dr H] to otherwise suggest is futile.
22[Dr H] states “that granting the [respondent] sole parental rights would facilitate the child’s return to Australia is unacceptable”. Unhelpfully, [Dr H] takes aim at [Dr G]’s report that [Dr G] “is not a qualified psychologist anyway, so it is not within her competence to determine what is in the best interests of the child”. [Dr G] has not purported to be a psychologist, nor has she offered an opinion as to what parenting orders are in the best interests of the child. She has simply provided this Court with evidence as to what orders could be made by this Court to assist the Hungarian legal process in having the child returned to Australia, as the Hungarian Courts have ordered.
23[Dr H] appears to have misunderstood the brief, and rather attempts to provide this Court with further submissions as to the child’s habitual place of residence and asserts that the Hungarian Courts have jurisdiction (despite the Hungarian Courts determining otherwise). I place little weight on [Dr H]’s report.
…
47Despite [X] being outside of Australia, the Court is empowered to make parenting orders for [X] because, at least, when these proceedings were commenced on the relevant day (19 October 2022), both [X] and the [respondent] (and the [appellant]) were Australian citizens (s 69E(1)(b) and (c)).
…
50The application of s 111CD(1)(a), (b) or (f) depends upon whether or not [X] is “habitually resident” in Australia or alternatively, as is provided by the plain words of the text in s 111CD(1)(c)(ii) of the Act. If [X] was wrongfully removed from or retained outside Australia, the Court retains jurisdiction under art 7 of the Child Protection Convention.
…
52It is open to this Court to “adopt any recommendation, finding, decision or judgment of any court” in relation to child related proceedings (s 69ZX(3)(b) of the Act). I adopt the comments made by Murphy J in Rod & Bloomberg [2008] FamCA 487 at [43]–[44], namely:
43.That a court should adopt findings by other judges about matters contentious before those other judges and, in one form or another, contentious in fresh proceedings before the court, is, as I said during the course of discussion of the topic at the hearing, somewhat “counterintuitive” – at least to me.
44.Nevertheless, it seems to be plain that the section permits me to do so. Moreover, the section can, in my view, be seen to have particular utility in a case such as the present where historical issues are mirrored in current issues before the court and where those issues are directly “relevant” to the best interests of children – the specific focus of Division 12A of the Act.
53As the history above reveals, [X] cannot be regarded as having acquired habitual residence in Hungary (or [Serbia] as the [appellant] contends). As the [respondent] submits, and I agree, to find that [X] has now acquired habitual residence in Hungary would be contrary to established principle (a parent cannot unilaterally alter habitual residence) and would have the effect of usurping or undermining the operation of both the Hague Convention and the Children Protection Convention.
54I adopt the findings of the Hungarian Courts (both at first instance and on appeal), set out earlier and place reliance on them because, in my view, those findings would be open generally on the evidence before me, which I am required to assess. I find therefore that this Court has jurisdiction to make parenting orders for [X].
55The evidence of the Hungarian lawyer, [Dr G], is that if this Court makes parenting orders for [X], they may be registered in Hungary and enforced by Hungarian authorities.
…
67The [appellant] seeks this Court adopt the opinions and recommendations contained in the report prepared by the [Serbian] authorities, pursuant to s 69ZX(3), however the [appellant] is mistaken. Section 69ZX(3) clearly sets out which bodies the Court may adopt any recommendation, finding, decision or judgement” from, being a court or tribunal. The [Serbian], [child protection agency] is not such a body. I reject the [appellant]’s contention in this regard.
68The [appellant] seems to now contend that the “[Serbian] Authorities are the ones that now have jurisdiction… as the child is residing in [Serbia]”. This is another demonstration of the [appellant]’s failure to understand the legal issues around the Australian jurisdiction.
CONCLUSION
69The [appellant] contends that parenting arrangements should be determined by the Hungarian courts, however the Hungarian courts have already ordered the [appellant] to return the child to Australia, having found that the child’s habitual place of residence is Australia. There are presently no proceedings on foot before the Hungarian Courts – they have now all been finalised, and the [appellant] has exhausted her rights of appeal in Hungary.
70Accordingly, as the Hungarian Courts have determined they do not have jurisdiction to make parenting orders for [X], it follows that Australia is not a clearly inappropriate forum.
71As to the [appellant]’s application for a stay of these parenting proceedings, a stay should be granted if this Court is a clearly inappropriate forum. Having found that this Court is not a clearly inappropriate form, the [appellant]’s stay application fails.
72I cannot ignore the possibility that the [appellant] may move the child’s residence to other parts of Europe. I deal with this issue later in these Reasons.
…
76The [respondent] contends that it is in the best interests of [X] that an order be made requiring her child to be returned to Australia. I agree.
…
78In relation to the [appellant]’s allegations of family violence and that the paternal family will perform a genital mutilation on the child (which the [respondent] denies), those are not issues that can be determined by the Court at this stage. Those allegations are required to be tested and considered in determining what time, if any, the child should have with a parent. They are issues that this Court, in Australia, are well placed to consider if the child returns to this country, as she should.
…
80In the [appellant]’s affidavit filed 9 June 2023, she asks that, if this Court determines that it has jurisdiction to make parenting orders relating to [X], that it must consider the report prepared/procured by the [Serbian] Child Protection Services. That report dated 12 May 2023 has limitations and, for the reasons earlier given, it cannot be afforded significant weight at this time.
…
82I cannot, nor do I, ignore that the [appellant]’s behaviour in unilaterally removing the child from Australia; to ignore or evade (geographically) the clear Orders of the Hungarian Courts and to prevent the [respondent] from exercising a real opportunity to spend time with or communicate with [X] (other than in Hungary and on her terms), has been contrary to the child’s best interests. I accept the [appellant] feels otherwise, from the comfort of taking the law into her own hands.
…
84It is inconsistent with the obligations of a state or country who is a signatory to the Hague Convention, to allow such contempt, as demonstrated by the [appellant], to prevail. The consistent experience of parents who are ordered by the Australian courts to return children to their place of habitual residence, is that all the resources that can be used to compel return are exercised.
85I take into account that the [appellant] is an Australian citizen and as such has no impediments about returning to, and remaining in, Australia. She would be entitled, if she was qualified to do so, receive Government benefits.
86Whilst communication issues between the [respondent] (who does not speak Hungarian) and [X], who the [appellant] says “only speaks and understands Hungarian”, is of course a concern, that difficulty does not on balance persuade me that the child should not return to Australia.
87It is likely, if the child returns to Australia, that the [appellant] will quickly follow.
88If that is the case, then the interim orders I will now make, being satisfied this Court has jurisdiction and should exercise it, can be revisited quickly.
89The success the [appellant] has demonstrated in evading the lawful directions and Orders of the Courts of Hungary make it extremely difficult to predict what effect the orders I now pronounce have on the Courts of Hungary, who primarily have, I respectfully opine, the obligation to enforce their Orders. The opinion of the legal expert is likely to be tested.
CONCLUSION
90For the reasons given, I make the orders which appear at the commencement of these Reasons, which, on an interim basis, are in the best interests of [X]. My hope is that these orders will be taken seriously by the Hungarian Courts (or any other European courts who say they have jurisdiction), so as to ensure the child returns to Australia. Those Courts can have confidence that if the child returns, any applications then made by the [appellant] to relocate with [X] overseas will be determined by applying the principles and law, so similar to those of other Convention countries.
(Document references omitted)
THE APPEAL
The Amended Notice of Appeal and Summary of Argument identified four grounds:
(1)Absence of procedural fairness;
(2)Absence of making orders to serve the child’s best interests;
(3)Absence of findings; and
(4)False or inconsistent findings made by the primary judge.
The appellant’s Amended Notice of Appeal did not, as required by the form, state briefly the grounds of appeal. Instead, it appended approximately 16 pages of close-typed assertions of fact and law, many of which were unconnected to the contention of asserted error. The appellant’s Summary of Argument provided no greater clarity and was similarly abstruse. Whilst due allowance is made for the fact that the appellant is not a lawyer, the preparation of the Amended Notice of Appeal and Summary of Argument made the task of identifying error that much more difficult. As the High Court observed in Neil v Nott (1994) 121 ALR 148 at 150 as follows:
A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.
Despite the contentions advanced by the appellant before the primary judge as to whether Australia was a clearly inappropriate forum, the grounds as framed challenge only the parenting orders. They, in the broad, assert error by denial of procedural fairness or alternatively challenge the discretionary determination of the primary judge.
To be successful, the appellant must demonstrate error in the terms of that set out by the High Court in House v The King (1936) 55 CLR 499. In Hedlund & Hedlund (2021) FLC 94-065, the Full Court recently observed:
36These grounds … also incorporate complaints about the “manner” of taking into account, or the placing of weight upon evidence. Such complaints do not correspond with the grounds of review established by House. In Bugmy v The Queen (2013) 249 CLR 571, Gageler J observed that:
53… The first and second [grounds of appeal] were framed in terms of a failure “properly” to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention [“one or more specific errors of principle or of fact” (at [51]), as set out in House] only if the asserted impropriety rose to the level of a failure to take those considerations into account. … The third [ground of appeal] was framed only in terms of “weight”. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category [“in the totality of the circumstances was unreasonable or plainly unjust” (at [51])].
37To the extent that the grounds constitute criticisms as to whether the consideration was “proper” or as to weight, none of these qualifiers is a valid justification for appellate intervention unless the result achieved is unreasonable or plainly unjust. …
Any suggestion in the appellant’s Summary of Argument that asserts the child’s habitual place of residence is Serbia must fail. The appellant cannot unilaterally change the child’s habitual place of residence (LK v Director General, Department of Community Services (2009) 237 CLR 582 at [34]) and the appellant is bound by the case she ran before the primary judge (which was that the child’s habitual place of residence was Hungary) and cannot raise on appeal an argument she did not advance at trial (Metwally v University of Wollongong (1985) 158 CLR 447).
Where there is a ground that contends an asserted error of procedural fairness, it must be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).
Ground 1
Absence of procedural fairness
The appellant’s Summary of Argument in support of the ground contends:
2Due to the complexity of the case and regardless of submitting a significant number of Affidavits, the only matter that was examined was, whether the Honourable Court of First Instance has jurisdiction and whether it is an appropriate forum, to make parenting orders regarding [the] child.
(As per the original)
It then proceeds to contend that the Court did not afford procedural fairness by:
(1)Not taking into consideration a report prepared by Serbian Social Services;
(2)Failing to obtain further expert evidence including an expert examination of the child conducted in Hungarian and at the child’s place of residence in Serbia;
(3)Failing to apply “Principle 3” of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”);
(4)Placed no weight on the appellant’s “religious expert opinion”;
(5)Basing its findings only on the “narratives of the [respondent]” and not on the appellant’s proven facts;
(6)Failing to meet the requirements of s “69CC(3)” of the Act;
(7)Finding that an arrest warrant had been issued against the appellant; and
(8)Not disregarding that the respondent made a false submission which had been refuted by the appellant.
Procedural fairness requires that a party be given an opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550). Thus, the notion of procedural fairness relates only to the process and not the product. Each of the appellant’s complaints referred to above are with the ultimate determination by the primary judge. Consequently, evidentiary findings, placing little weight on a particular piece of evidence, preferring the evidence of one party to that of another and asserted failures to comply with various statutory provisions, does not give rise to error founded upon a denial of procedural fairness. As the Full Court observed in Lietzau & Lietzau [2024] FedCFamC1A 94:
60Of course, none of those complaints is the manifestation of procedural unfairness, which doctrine is concerned only with the fairness of a hearing up until the time of its conclusion. The doctrine has no application thereafter (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329 at [22]).
There is no merit either individually or collectively with any of the contentions advanced by the appellant under the rubric of a denial of procedural fairness. The appellant was given the opportunity to present evidence and make submissions both orally and in writing. The primary judge displayed remarkable patience in circumstances where the appellant, contrary to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), was permitted to rely upon six affidavits, many of which were filed on the same day.
The ground alternatively contends that the primary judge was biased towards the respondent. Reliance for such conclusion was based upon the asserted finding that an arrest warrant had issued and by not disregarding that the respondent made a false submission which had been refuted by the appellant. No recusal application was made to the primary judge.
The apprehended bias test requires the establishment of two limbs or what has been referred to as “the double might test” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”)). In the context of actual bias, the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 observed:
32As the plurality in Johnson v Johnson explained, “[t]he hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”.
33Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias…
(Footnote omitted, emphasis in original)
An assertion of bias is one which challenges the very integrity of the judicial process and should not be made lightly or based upon flimsy or imprecise evidence.
The considerations that inform a conclusion as to actual bias as opposed to apprehended bias are quite different. The appellant in her Summary of Argument and oral submissions conflated impermissibly the two propositions and did not seek to identify the element of prejudgement such as to ground an application for actual bias. Nor did she identify “the logical connection” between what she says the primary judge did “and the apprehended deviation from deciding that question on its merits” (see QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [38]).
The appellant’s approach to the arrest warrant changed over the course of her evidence. She seemed to initially assert that none had issued only to then assert that one had but that it was “illegal” (appellant’s written submissions in reply filed 24 July 2023, p. 6). Merely preferring the submission of one party to that of another is not evidence of bias. Neither of these assertions constitute apprehended let alone actual bias.
There is no merit to Ground 1.
GROUND 2
Absence of making orders to serve the child’s “very” best interests
The appellant’s Summary of Argument in support of the ground identified various sections of the Act, the Child Protection Act 1999 (Qld), and art 3.1 of the United Nations Convention on the Rights of the Child. It contended that the primary judge erred at [77] of his reasons, that his Honour “disregarded the best interests of the child and exposes the child to the possibility of physical, psychological and emotional harm”. It is also claimed that at [86] of his Honour’s reasons, the primary judge “repeatedly disregarded the best interests of the child” as follows:
14As per point 86. of the Reasons for Judgement (Appeal Book: p.67.) of the interim orders made, the Honourable Court repeatedly disregarded the best interest of the child.
aAs a basic human right, my child does have the right to express herself in her native language, as well as to have all her basic needs met by communicating those needs in her native Hungarian language as well.
bThe interim orders made deprive my child from her Hungarian identity, culture, environment, every single people close to her, as well as deprive her from her ability to communicate, express herself and to have all her basic needs met.
(Emphasis in original)
The appellant’s Summary of Argument concluded with the submission that it was not in the child’s best interests to be returned to Australia. Such submission ignores entirely the orders made by numerous Hungarian courts that the child is to be returned to Australia.
The appellant’s Amended Notice of Appeal and Summary of Argument in various places confuses the task of this court. An appeal by way of rehearing is to be distinguished from an appeal de novo. As the High Court identified in Allesch v Maunz (2000) 203 CLR 172:
23For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error …
(Footnote omitted)
Thus, exhortations that it is not in the child’s best interest to return are meaningless absent the establishment of appellate error. The only matters relied on to demonstrate error are those referenced in the above two paragraphs. There is no merit to either contention.
In his reasons, the primary judge observed as follows:
77In relation to the [appellant]’s allegations of possible genital mutilation by the [respondent] or his family, [counsel] submits that these allegations have been the subject of findings made by the Hungarian Courts, and that this Court can have regard to those findings (under s 69ZX(3)(b)). With respect, I disagree that the Hungarian Courts made a specific finding as to the allegation that [respondent] or his family would perform a genital mutilation procedure on the child. Instead, the Hungarian Capital City Court said the [appellant]’s “claim regarding the mutilation of the child’s genitalia in [sic] unproven and weightless”. I adopt that finding.
It is not demonstrated how the primary judge’s contention is erroneous. Section 69ZX(3) of the Act is to the following effect:
(3) The court may, in child‑related proceedings:
(a)receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
[Note omitted]
The appellant was clearly on notice of the provision in circumstances where it had been referred to by the respondent in his written submissions filed 22 June 2023 to which the appellant subsequently replied on 24 July 2023. The appellant has not demonstrated how the primary judge was in error in adopting the finding that his Honour did.
The appellant otherwise relied upon the reasons which were to the following effect:
86Whilst communication issues between the [respondent] (who does not speak Hungarian) and [X], who the [appellant] says “only speaks and understands Hungarian”, is of course a concern, that difficulty does not on balance persuade me that the child should not return to Australia.
No part of the appellant’s Summary of Argument that contends error by his Honour’s finding establishes that to be so. His Honour weighed the consideration that the child does not speak English in the balance. Of course, any concerns about the child’s capacity to speak English can be immediately ameliorated by the appellant voluntarily returning the child to Australia and upon return making an application for the child to live with her. The primary judge recorded in his reasons as follows:
75In oral submissions, Mr Cameron noted that it may be open to the Court to find that, if the [appellant] returned with the child to Australia, it would be in in the child’s best interests for her to live with the [appellant] in Australia and spend graduated time with the [respondent].
Ground 2 is without merit.
GROUND 3
Absence of findings
Ground 3, which was previously drawn as an absence of findings, contended in the appellant’s Summary of Argument to now be “Significantly Changed Circumstances – Child Protection Measures Taken by [Serbian] Authorities” (appellant’s Summary of Argument filed 4 October 2024, paragraph 16).
The appellant’s Summary of Argument contended that the appellant and child have continued to reside in Serbia since May 2023 due to “[c]hild [p]rotection measures” brought by the relevant Serbian authorities and that the child is under “the [Serbian] state’s protection until the age of 18” (appellant’s Summary of Argument filed 4 October 2024, paragraph 16(c)). Beyond assertions in the appellant’s Summary of Argument, there is no evidence of any of these matters.
The appellant’s Summary of Argument went on to contend that there are legal proceedings on foot before the Serbian courts and that the primary judge completely disregarded this fact. The appellant misrepresents the primary judge’s reasons. The primary judge recorded at [9], [10], [67] and [68] that the child had been interviewed by the Serbian authorities, that a report had been prepared by a psychologist, that the Serbian authorities had “refused to action the obligation to make arrangements for the child to be returned to the [respondent]” (at [10]) and that the appellant’s “length of stay in [Serbia] is uncertain” (at [11], quoting the appellant’s affidavit filed 9 June 2023). Despite what was recorded in the appellant’s Summary of Argument, the appellant confirmed that there were no proceedings before a court in Serbia at the time of the hearing before the primary judge.
Irrespective of that fact, it was the appellant’s contention before the primary judge that the proper forum to determine the dispute was Hungary. Further evidence may be admitted on appeal to either demonstrate error or to buttress the findings (CDJ v VAJ (No 2) (1998) 197 CLR 172 at [109]). The appellant has not filed an Application in an Appeal nor any evidence in any affidavit to support that which she now contends. However, assuming that the appellant’s evidence in an affidavit were no more than is asserted in the appellant’s Summary of Argument and no issue was taken by the respondent, no submissions were advanced by the appellant as to how it demonstrated error on the part of the primary judge. There was no assertion that a Serbian court had determined the child’s habitual place of residence. A Hungarian court had determined that the child’s habitual place of residence was Australia and there remained in force an order for the child’s return to Australia.
Ground 3 is without merit.
GROUND 4
False or inconsistent findings
By Ground 4, the appellant contends that the primary judge erred in his Honour’s finding that the report of Ms J lacked probative or forensic value in that the report contained opinions based on the appellant’s narrative only. The appellant’s Summary of Argument does not identify the error on the part of the primary judge but merely restates the arguments advanced in support of the admission of the report. The only parent interviewed by the Serbian authorities was the appellant. The primary judge’s finding that the report was based on “a historical narrative given by the [appellant] only” (at [19]) was entirely consistent with the undisputed facts. Contentions that the author of the report was not a psychologist but also the director of a Serbian state government institution or that the report required three signatures do not point to or establish error, let alone one that is material (De Winter v De Winter (1979) FLC 90-605).
Insofar as the appellant’s Summary of Argument contends that the Serbian child protection agency is a competent authority with legislative power (irrespective of the absence of evidence to support the contention) was as equally irrelevant to the determination of the primary judge as it is to the establishment of error. A reference in the appellant’s Summary of Argument to s 69ZX(3) as demonstrative of error is misplaced. The subsection addresses admissibility not weight. It is not in issue that the primary judge admitted the report.
Arguments as to the habitual residence of the child are equally misplaced. The primary judge made no determination as to habitual residence, that issue having been determined by the Hungarian courts. Insofar as the appellant’s Summary of Argument contends that the order was inconsistent with the child’s best interests, it is no more than a submission unconnected to the establishment of error on the part of the primary judge. Lastly, the contention that legal process has commenced in Serbia and that a Serbian court has established jurisdiction in relation to the child is absent evidence supporting the mere assertion.
Ground 4 has no merit.
DISPOSITION
For the above reasons, the appeal will be dismissed.
COSTS
The respondent sought an order by way of costs in the event the appeal was dismissed on an indemnity basis or alternatively at scale. The order was opposed by the appellant.
An application for costs is governed by the provisions of s 117 of the Act, which provides a general rule that each party to the proceedings should bear their own costs.
Section 117(2) of the Act reposes in the Court a discretion to make a costs order if the Court determines there are circumstances that justify this and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A) of the Act.
It is well-settled law that no one factor in s 117(2A) of the Act is determinative, and the Court may give such weight as it considers relevant to any factor (see Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123).
Neither party placed before the Court any evidence as to their financial circumstances. The appellant advised that while she is employed on a full-time basis, she has no assets in Serbia or Hungary. The appellant advised that she is pursuing her claim for financial adjustment pursuant to s 90SM of the Act. Even assuming that the respondent is in a superior financial position to the applicant, impecuniosity is not a bar to the making of a costs order (Nada & Nettle (Costs) (2014) FLC 93-612 at [11]).
The appellant has been wholly unsuccessful on the appeal and none of the grounds had merit.
We are satisfied that those are circumstances sufficient to justify the making of a costs order. The circumstances in which an order will be made on an indemnity basis need to attract some degree of exceptionality (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233) to depart from an order that cost will be ordered on a party and party basis.
We are not satisfied that such exceptionality has been demonstrated despite the appellant’s trenchant refusal to comply with orders for the return of the child.
The sum sought by the respondent accords with the scale. We do not propose to allow this aspect of the parties’ litigation to continue beyond this event (see Warbrick & Warbrick (2021) FLC 94-030 at [13]). We will fix the amount payable at $7,740.22 with such amount to be met from the appellant’s entitlement pursuant to any order made by way of financial adjustment under s 90SM of the Act.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Schonell and McNab.
Associate:
Dated: 20 November 2024
19
5