Byquist & Ieri (No 2)

Case [2024] FedCFamC1A 217

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 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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Details
AGLC
Byquist & Ieri (No 2) [2024] FedCFamC1A 217
Case
[2024] FedCFamC1A 217
Decision Date

CaseChat Overview and Summary

In the appeal filed by Ms Byquist against the interim parenting orders made by the Federal Circuit and Family Court of Australia, the primary legal issues involved the jurisdiction of the Australian courts to make such orders and the procedural fairness of the proceedings. The appellant argued that Australia was not an appropriate forum for the resolution of parenting issues, given that her child had been residing in Hungary and that Hungarian courts had already made several orders regarding the child's return to Australia. Additionally, she raised concerns about procedural fairness in the handling of the case.

The court found no merit in the appellant's contention that Australia was a clearly inappropriate forum. The court reasoned that despite the child having been in Hungary, the child's habitual residence had been established as Australia, and previous orders from Hungarian courts mandated the child's return to Australia. Furthermore, the court determined that there had been no procedural unfairness in the conduct of the proceedings. The appellant had ample opportunity to present her case and did not demonstrate any error in the proceedings that would warrant a stay of the Australian proceedings.

As a result of the court's findings, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs in a fixed sum of $7,740.22, to be paid from any entitlement arising from a final order under section 90SM of the Family Law Act 1975. This sum was intended to cover the respondent's legal expenses incurred due to the appellant's unsuccessful appeal.

Orders

Orders of the court

NAA 197 of 2024

BRC 13092 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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