Ieri & Byquist
[2024] FedCFamC1F 436
•28 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ieri & Byquist [2024] FedCFamC1F 436
File number(s): BRC 13092 of 2022 Judgment of: BAUMANN J Date of judgment: 28 June 2024 Catchwords: FAMILY LAW – PARENTING –Where the mother unlawfully removed the child from her habitual place of residence, Australia – Where a number of orders have been made by an overseas Court for the return of the child to Australia – Where the mother has evaded attempts by European authorities to recover the child – Whether this Court is clearly an inappropriate forum – Where the Court finds Australia is not a clearly inappropriate forum – Interim orders made for the child to live with the father in Australia and spend time with the mother in Australia Legislation: Family Law Act 1975 (Cth) ss 69E, 69ZX, 111CA, 111CB, 111CC, 111CD
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.06
Convention on Jurisdiction, Applicable Law Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Chawla & Dutta [2021] FedCFamC1F 256
CSR Ltd v Cigna Insurance Australia Limited (1997) 189 CLR 345
Duckworth & Jamison (2015) 52 Fam LR 471
Henry v Henry (1996) 185 CLR 571
Kent v Kent (2017) FLC 93-792
LK v Director-General, Department of Human Services (2009) 237 CLR 582
Rod & Bloomberg [2008] FamCA 487
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Whung & Whung (2011) 45 Fam LR 269
Yaling & Tsen (No 2) [2022] FedCFamC1F 676
Division: Division 1 First Instance Number of paragraphs: 93 Date of last submission/s: 7 August 2023 Date of hearing: 23 June 2023 Place: Brisbane Counsel for the Applicant: Mr R Cameron Solicitor for the Applicant: Redhill Legal Solicitor for the Respondent: Litigant in person (via videolink) ORDERS
BRC 13092 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR IERI
Applicant
AND: MS BYQUIST
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the father exercise sole decision-making responsibility for the major long-term issues of the child, X born 2019 (“the child”).
2.That effective immediately, the child shall live with the father in Australia.
3.That if the mother is in Australia, the child shall spend time with the mother in Brisbane as agreed between the parents in writing, but failing agreement, each alternate weekend from 3.00pm Friday (or after school if the child is attending school in Australia) until 9.00am Monday (or before school if the child is attending school in Australia).
4.That if the mother returns to Australia, the child shall communicate with the parent she is not in the care, by telephone or video (facetime/Skype or similar application) between 6.00pm and 7.00pm each Wednesday and Friday, or as otherwise agreed between the parents.
5.That if the mother does not return to Australia, the child shall communicate with the mother by telephone or video (facetime/Skype or similar application) between 6.00pm and 7.00pm (Brisbane time) each Wednesday and Friday, or at such other times as agreed between the parents.
Telephone and electronic communication with the child
6.That the parent who does not have the child in their care is at liberty to telephone or video call the child between 6.00pm and 7.00pm each Wednesday and Friday.
7.That for the purposes of Order 5 hereof, and unless otherwise agreed between the parents in writing, the mother and the father will communicate with the child by initiating the communication on the other parent’s mobile phone.
Travel restrictions
8.That until further Order or else subject to the written consent of both parents, each parent, MR IERI born in 1987 and MS BYQUIST born in 1982, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child, X born 2019 from the Commonwealth of Australia.
9.That the Deputy Marshal of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the child’s name on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watchlist until further order of the Court, or authenticated written consent of both parents.
10.That when the child is in the care of or communicating with either parent, both parents shall:
(a)respect the privacy of the other parent and not question the child about, or discuss, the personal life or parenting decisions of the other parent;
(b)speak of the other parent respectfully and support their day-to-day parenting decisions; and
(c)not denigrate or insult the other parent or any other family member or discuss these or any other legal proceedings involving the parents to or in the presence or hearing of the child and will use their best endeavours to ensure that others do not do so.
11.That both parents are entitled to receive at their own request and expense any and all information in relation to the health, education and welfare of the child, including but not limited to details of any illness suffered by the child and treatment required, school reports, newsletters, notifications of parent teacher interviews, photograph order forms and details of any disciplinary matters and production by the parent of a copy of this Order constitutes, and is hereby deemed to be, sufficient authority to each of the child’s medical practitioners, allied health professionals and schools to provide such information to the requesting parent.
12.That each parent shall authorise the child’s daycare/school to give to the other parent any and all information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
13.That both parents are entitled to attend any school or extra-curricular activities to which parents are invited, including but not limited to parent-teacher interviews, assemblies, excursions, concerts and sports days.
14.That in the event the child is prescribed medication or a particular form of treatment which is required to continue into a period when the other parent will be caring for the child, any medication or materials required for their treatment shall be sent with the child when they go to the other parent along with a description of the condition for which it is required and the appropriate dosage or method of treatment.
15.That in the event of the child becoming ill or seriously injured whilst in the care of one parent, that parent shall notify the other as soon as possible and in any event within twenty four (24) hours by sending a text message or calling the other parent on their mobile phone.
16.That both parents shall:
(a)keep the other parent informed at all times of their residential address and contact telephone number;
(b)notify the other parent of any plan or intention to relocate their residence and shall provide details of their new address at least seven (7) days prior to relocating their residence;
(c)not relocate the child’s residence more than twenty (20) kilometres from the other parent’s residence without the other parent’s written consent; and
(d)keep the other parent informed of the names and contact details of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about their treatment of the child.
17.That these proceedings be adjourned for Case Management Hearing at 9.30am (AEST) on 9 September 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
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 Ieri & Byquist has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
What is a parent in Australia (in this case the father) to do when, despite orders by a foreign court that a child be returned to Australia, the other parent (in this case the mother) despite many unsuccessful appeals, fails to do so.
This case considers that dilemma.
BACKGROUND
The Applicant father (now aged 36 years) and the Respondent mother (now aged 41 years) met in 2015 before commencing cohabitation in 2016 and marrying in 2017. The child, X born 2019 (“the child”) (now aged five years) is the only child of this union. When the child was two years of age, the parties separated on 19 January 2021.
The father was born in City B, Country C but has lived in Australia since late 2010 and is an Australian citizen.
The mother, also an Australian citizen, was born in Hungary where she lived until she moved to Australia in late 2007 to live, before returning to Hungary in early 2021.
In early 2021, without the father’s knowledge or consent, the mother removed the child from Australia to Hungary. At the time of removing the child from Australia, the parties were living as an intact couple in Suburb E, Queensland. In fact, there is evidence that the mother had indicated to the father some days earlier that she had made an appointment with a fertility clinic, which the father assumed meant expanding the family was being contemplated. The mother informed the Hungarian Court that the appointment was to retrieve medical documentation.
The chid nor the mother have returned to Australia since early 2021, despite a number of orders having been made for child’s return to Australia. These attempts are detailed more fully later in these Reasons, but in summary:
(a)in parenting proceedings were commenced by the mother in Hungary in January 2021, in July 2021 the Hungarian Court determined that X’s habitual place of residence was Australia and ordered the mother to return X to Australia by 31 August 2021;
(b)the mother appealed that decision, which was unsuccessful, and in October 2021 the appeal court ordered the mother to return the child to Australia by 29 November 2021;
(c)in January 2022, the mother then appealed to a higher Court. That appeal was also unsuccessful, and the mother was ordered to return X to Australia by 1 June 2022, or failing that, to deliver the child to the father or his legal representative on 15 June 2022; and
(d)in March 2022, Hungarian authorities attempted to locate and retrieve the child, but this was unsuccessful.
The mother says that her failure to return the child to Australia, as ordered by the Hungarian Courts, is because of her “well-founded fear” that the child would be “subjected to the father’s aggressive behaviour, the very strict expectations of the father’s religious community” and “female genital mutilation” (see the mother’s affidavit filed 20 June 2023).
In early May 2023, while the mother and the child were travelling to Country D (the mother says for a weeklong holiday, to return to Hungary prior to a Hungarian Court event scheduled for mid-May 2023) border control authorities in Serbia were alerted to a “Interpol Yellow Notice” (missing person) relating to the child. The mother and the child were subsequently detained at the border by Serbian authorities and were together placed in a foster carer’s home.
In an email from the Australian Central Authority to the father dated 12 May 2023, there was an indication that the “Serbian authorities have concerns about handing over the child to the father whom she has not seen for more than two years and they cannot speak.” From what appears to be a Serbian process, the child was psychologically examined, and the Serbian authorities have refused to action the obligation to make arrangements for the child to be returned to the father.
At the time of the hearing before me on 23 June 2023, the child and the mother were residing in Serbia, the mother’s evidence being that their “length of stay in Serbia is uncertain” (affidavit of the mother filed 9 June 2023) and that she and the child were “currently under the protection and supervision of the Serbian authorities” (affidavit of the mother filed 20 June 2023). The mother again confirmed in her submissions filed 24 July 2023 that she and the child remained in Serbia.
MATERIAL RELIED UPON BY THE PARTIES
Father
That father relies upon the following material which I have considered:
(a)His amended Initiating Application filed 26 April 2023;
(b)Affidavits of himself filed 19 October 2022; 15 December 2022; 19 January 2023 and 22 June 2023;
(c)Affidavit Ms F filed 27 March 2023 and 19 June 2023;
(d)Affidavit of Dr G filed 20 April 2023;
(e)Submissions filed 22 June 2023, which although filed late, have been considered; and
(f)Reply submissions filed 2 August 2023, which again were late but have been considered.
The father 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 father to have sole parental responsibility for the child and for the mother to deliver the child to the father 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 mother will not comply with Australian parenting orders, that the father request the Hungarian court “issue an enforcement clause, so that the actual enforcement procedure could be instituted”.
Mother
That mother relies upon the following material which I have considered:
(a)Her Response filed 11 January 2023;
(b)Three affidavits of herself filed 26 January 2023;
(c)Affidavits of herself filed 21 April, 9 and 20 June 2023;
(d)Affidavit of the mother’s solicitor, Dr H filed 5 June 2023;
(e)Submissions filed 24 July 2023; and
(f)Further submissions filed 7 August 2023, which have been considered despite the father’s objection dated 9 August 2023.
Report prepared by Ms J
The mother relies upon a report prepared by Ms J, a psychologist with the Serbian Social Services Department dated 12 May 2023 (see Annexure “MB-001” to the mother’s affidavit filed 9 June 2023). The report sets out the material the mother’s legal representative provided the report writer.
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 mother’s legal representative and the Embassy of Hungary.
The 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 father, where she could be a victim of physical danger and psychological trauma” is a conclusion based solely on information provided by the mother and without any input from the father. It is clear that the report writer relied heavily on the mother’s version of events (see page two of the Annexure “MB-001”) 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 father in either the Australian or Hungarian proceedings, nor that the father was interviewed for the report or that the father’s legal representatives (in either Australia or Hungary) were contacted.
The report writer questions why “an analysis of [the mother and the father] personalities has not been completed to date”. Frankly, that report writer and the mother simply misunderstand the legal process. Such an assessment of the parents is likely to be undertaken by this Court at the appropriate time.
The father says the Court should disregard the report of Ms J and give it no weight. I agree with Mr Cameron’s submission that the report contains opinions based on a historical narrative given by the mother only. I find that the report lacks little probative or forensic value.
Report prepared by Dr H
In compliance with Orders made 4 May 2023 which required the mother 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 father from his expert Dr [G] filed 26 April 2023”, the mother 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 father 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.
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.
Dr H states “that granting the father 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 that 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.
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.
HISTORY OF THE HUNGARIAN PROCEEDINGS
As I indicated earlier in these Reasons, for context, it is helpful to provide a history of the proceedings which followed the mother’s unilateral departure from Australia with the child.
In January 2021 (less than two weeks after leaving Australia with the child), the mother commenced divorce and parenting proceedings with the City K Central District Court (“Hungarian Court, seeking orders for the child to live with her and the equivalent for sole parental responsibility, as well as orders for the father to make child maintenance payments to the mother. Although the father consented to a divorce being granted by the Hungarian Court (and a divorce order was made in December 2022), in his response (a “counter-petition”), the father sought to challenge the Hungarian Court’s jurisdiction in relation to parenting matters relating to X.
On 6 February 2021, the father sought X’s return to Australia under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
On 19 July 2021, the Hungarian Court determined that X’s habitual place of residence (at the time the child was removed from Australia in early 2021) was Australia and ordered the mother to return X to Australia by 31 August 2021 (see Annexure MI-02 to the father’s affidavit filed 19 October 2022). The mother’s contention that the father had consented to the child relocating to Hungary, which was and is still denied by the father, was rejected by the Hungarian Court.
The mother appealed the Hungarian Court’s decision to the Capital City Court. That appeal was unsuccessful and on 12 October 2021 the appeal court ordered the mother to return the child to Australia by 29 November 2021.
In January 2022, the mother then appealed to the Curia (which appears to be the equivalent to the High Court of Australia). That appeal was also unsuccessful, with that Court ordering the mother to return X to Australia by 1 June 2022, but failing that, to hand the child to the father or his legal representative on 15June 2022.
In what seems to be a further application made by the mother to the Hungarian Court in January 2022, the mother again sought interim and final orders for the child to live with her and for the mother to have sole parental responsibility for the child.
In late December 2022, the Hungarian Court refused to make parenting orders in relation to X, “due to its lack of jurisdiction” (see page 2 of the translated decision at annexure “[MI]-1” of the father’s affidavit filed 22 June 2023). The mother appealed this decision which was dismissed by the Capital City Court in mid-May 2023, and a costs order was made against her (see Annexure “ZC-03 to the father’s solicitor’s affidavit filed 19 June 2023).
It is the father’s evidence that on 23 and 28 March 2022, authorities attempted to retrieve the child by attending upon the mother’s last known address, being the maternal grandmother’s residence, however the child was not located. This resulted in an application being made by the Court Bailiff for a warrant to issue for the arrest of the mother.
At the invitation of the Hungarian Central Authority in May 2023, the father travelled to Hungary in an attempt to facilitate the Hungarian authorities enforcing their order for the return of the child to Australia, after the Hungarian Central Authority had been alerted to the child having crossed into the Serbian border. Unfortunately, the child was unable to be recovered, and in the days leading up to this discrete hearing, the father returned to Australia from Hungary without the child.
HISTORY OF THE AUSTRALIAN PROCEEDINGS
While the “second round” of parenting proceedings commenced by the mother were on foot in Hungary, the father (being present and ordinarily resident in Australia and an Australian citizen) commenced parenting and property proceedings in Division 2 of this Court by way of Initiating Application filed 19 October 2022.
In that Application, the father sought orders that he have sole parental responsibility for the child and the child live with him, and that physical time between the child and the mother be as determined by the Court, but that there be telephone communication twice per week. He also sought that the child’s name be placed on the Airport Watchlist and that the child remain in Australia. Further, his Application sought final property adjustment orders to provide that he receive a 90% property division in his favour, including the retention of a property at Suburb E, Queensland and the business, L Pty Ltd.
The mother was served with the father’s Application on 21 November 2022.
When the matter first came before the Court before a Registrar on 23 November 2022, the mother was ordered to file Response material ahead of an interim hearing listed before a Senior Judicial Registrar on 22 December 2022. The Registrar noted on this occasion that the mother “has made an unconditional appearance before the Court on this day and has submitted to the jurisdiction of this Court”. Having still not filed her Response material, the mother was again ordered to file her Response material, and the matter was transferred to Division 1 of the Court and listed before me on 25 January 2023.
In her Response filed 11 January 2023, the mother sought interim and final orders for her to have sole parental responsibility for the child, with an obligation to consult the father, and for the child to live with her in Hungary. The mother contended that as well as electronic communication as agreed, the father be permitted to spend time with the child in Hungary, restricted to the mother’s home. However, despite seeking orders of this Court, the mother at the same time contended that Australia is a clearly inappropriate forum because, as she submitted, parenting proceedings were on foot in the Hungarian Court, which she had commenced in January 2021. Accordingly, in her Response, the mother sought a permanent stay of these proceedings.
The mother also sought property adjustment orders such that there be an overall division of the assets of 60% in the father’s favour, with the father to retain the Suburb E property and the business, as well as seeking the father pay child support of AUD$280 per month, and a lump sum payment of arrears of AUD$6,700.
In his amended Initiating Application filed 19 January 2023, the father additionally sought a declaration, pursuant to s 78 of the Family Law Act 1975 (Cth), that he “held and continues to hold, all his right, title and interest” in the [Suburb E] property “for the benefit of the [h]usband and [w]ife in such proportions as the Court determines pursuant to a common intention, constructive or resulting trust.”
When the matter first came before me on 25 January 2023, the mother appeared by telephone representing herself and Mr Cameron of Counsel appeared on behalf of the father. I ordered the father to file an affidavit by a qualified expert in Hungarian law as to any orders that could be made in Australia in the parenting proceedings that may aid or assist the Hungarian legal process in having the child returned to Australia, as the Hungarian Court has ordered. After an affidavit was filed with the Court annexing a report prepared by an attorney practising in Hungary, Dr G dated 17 March 2023 (as referred to earlier in these Reasons), the matter was re-listed before me on 4 May 2023.
On 26 April 2023, the father filed a further amended Initiating Application to seek orders for equal shared parental responsibility and specific time for the child to spend with the mother in Australia, if the mother was in fact in Australia, each alternate weekend from 3.00pm Friday to 9.00am Monday, as well as telephone communication twice weekly. The father maintained that the telephone communication continue regardless of whether the mother was in Australia or overseas.
With the mother having raised in her material the issue of whether Australia was a clearly inappropriate forum to determine the parenting proceedings, on 4 May 2023 I set the matter down for a discrete hearing as to the forum issue on 23 June 2023. Directions were made for:
(a)the father to file submissions by 12 May 2023;
(b)the mother to file submissions in response, which were to also include the result of a hearing listed before the Hungarian Court on 17 May 2023; and
(c)the mother 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 father from Dr G, by 9 June 2023.
When the matter came before me for the discrete hearing on the issue as to forum, the father appeared before me again represented by Mr Cameron of Counsel, and the mother appeared by video again representing herself.
PRINCIPLES AS TO JURISDICTION AND STAY APPLICATION
In essence, the mother asks the Court to not exercise the jurisdiction conferred by s 69E(1) of Family Law Act 1975 (Cth) (“the Act”) because of the operation of the Convention on Jurisdiction, Applicable Law Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children (“the Child Protection Convention”) and the operation of s 111CD of the Act, which section gives effect to the Child Protection Convention. Secondly, the mother seeks a permanent stay of the Australian parenting proceedings but is content for this Court to make property adjustment orders.
The Court’s power to make parenting orders for X and the exercise of the power
Section 69E(1) of the Act states:
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a)the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
Despite 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 father (and the mother) were Australian citizens (s 69E(1)(b) and (c)).
In the father’s submissions filed 22 June 2023, Mr Cameron of Counsel submitted that:
(a)the exercise of jurisdiction distinct from the conferring of jurisdiction to make parenting orders for X provided for by s 69E of the Act is subject to and may be materially affected by the provisions of Subdivision B of Division 4 of Part XIIIAA (ss 111CA – 111D) of the Act;
(b)Division 4 of Part XIIIAA of the Act does not confer jurisdiction to make parenting orders but rather regulates the exercise of jurisdiction;
(c)the provision of Division 4 of Part XIIIAA of the Act applies here, for as Altobelli J explained in Chawla & Dutta [2021] FedCFamC1F 256 (at [22]), “…the provisions of the Child Protection Convention are intended to apply to applications, such as the present, where the Court is being asked to deal with issues of parental responsibility and where and with whom the child will live”; and
(d)it is accepted that the father, by applying for interim parenting orders, is applying for a “Commonwealth personal protection measure” within the meaning of that term in s 111CA of the Act (see Chawla & Dutta and Duckworth & Jamison (2015) 52 Fam LR 471).
Section 111CD of the Act relevantly states:
(1)A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a)a child who is present and habitually resident in Australia; or
(b)a child who is present in Australia and habitually resident in a Convention country, if:
(i)the child’s protection requires taking the measure as a matter of urgency; or
(ii)the measure is provisional and limited in its territorial effect to Australia; or
(iii)the child is a refugee child; or
(iv)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence; or
(v)a competent authority of the country of the child’s habitual residence agrees to the court assuming jurisdiction; or
(vi)the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(c)a child who is present in a Convention country, if:
(i)the child is habitually resident in Australia; or
(ii)the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or
(iii)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence or country of refuge; or
(iv)a competent authority of the country of the child’s habitual residence or country of refuge agrees to the court assuming jurisdiction; or
(v)the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(d)a child who is present in Australia and is a refugee child; or
(e)a child who is present in a non – Convention country, if:
(i)the child is habitually resident in Australia; and
(ii)any of paragraphs 69E(1)(b) to (e) applies to the child; or
(f)a child who is present in Australia, if:
(i)the child is habitually resident in a non - Convention country; and
(ii)any of paragraphs 69E(1)(b) to (e) applies to the child.
The 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.
The mother contends (at paragraph 14(h) of her affidavit filed 20 June 2023) that jurisdiction of the Hungarian Court has been established by virtue of the child having lived in Hungary for two years, and that the child has “no ties to Australia whatsoever”. The mother cannot unilaterally change X’s habitual place of residence to Hungary (LK v Director-General, Department of Human Services (2009) 237 CLR 582). The issue as to the child’s habitual residence of Australia has already been determined by the Hungarian Courts.
It 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.
As the history above reveals, X cannot be regarded as having acquired habitual residence in Hungary (or Serbia as the mother contends). As the father 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.
I 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.
The 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.
Is Australia a clearly inappropriate forum?
In circumstances where the principles to be applied, as set out next in these Reasons, are well settled, the exercise of discretion this Court is required to undertake is to be considered within the matrix of those broad principles. In these circumstances, essentially, the issue is whether this Court is a clearly inappropriate forum, and the mother bears the onus of establishing that to be so.
As the High Court of Australia in Henry v Henry (1996) 185 CLR 571, enunciated, having adopted the general law test previously set out in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, a court is clearly an inappropriate forum “if continuation of the proceedings in that court would be oppressive, in the sense of ‘seriously and unfairly burdensome, prejudicial or damaging’, or vexatious, in the sense of productive of serious and unjustified trouble and harassment”. When determining whether the Court is the clearly inappropriate forum, the best interests of X are a relevant but not paramount consideration.
The Court has an implied power to “prevent its own processes being used to bring about injustice” (CSR Ltd v Cigna Insurance Australia Limited (1997) 189 CLR 345 at [391]) and r 1.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides a general power to stay a proceeding or part of a proceeding.
THE FATHER’S SUBMISSIONS
In submissions filed 22 June 2023, Mr Cameron sets out the relevant law, which I largely adopt as follows.
The Court is firstly required to determine whether it should exercise jurisdiction or not, by reference to the provisions of Division 4 of Part XIIIAA of the Act. The second issue is whether the Court should then stay the Australian proceedings. The question is then whether the relevant common law principles of forum non-conveniens are then to be applied in determining that issue.
There appears to be some divergence of opinion between Judges of this Court on the second issue. Tree J accepted in Duckworth & Jamison that the common law principles no longer apply. However, in Yaling & Tsen (No 2) [2022] FedCFamC1F 676, Harper J applied the common law principles in determining whether to stay the proceedings commenced by the father in Australia in respect of a child present in China (at [32]–[57]).
In Kent v Kent (2017) FLC 93-792, the Full Court adopted the non-exhaustive list of “the matters properly to be taken into account” when considering whether the Court is a clearly inappropriate forum as articulated in Henry and summarised in Whung & Whung (2011) 45 Fam LR 269 as follows:
1.No question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage.
2.If both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done.
3.It will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
4.Other considerations include the order in which the proceedings were instituted.
5.Other considerations include the stage which the proceedings have reached.
6. Other considerations including the costs that have been incurred.
7.It will be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions.
8.It will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.
9. It will be relevant to consider “the general circumstances of the case”, taking into account “the true nature and full extent of the issues involved.”
THE MOTHER’S SUBMISSIONS
It is the mother’s contention that this Court is a clearly inappropriate forum because she filed an application for parenting orders in Hungary (on 28 January 2021) prior to the father commencing Hague proceedings (on 6 February 2021) and then parenting proceedings in this Court (19 October 2022). This argument is undermined by the Hungarian Courts having already determined that it lacks the jurisdiction to determine the mother’s parenting application.
The mother also submits that because the child has now lived in Hungary for over two years, this establishes jurisdiction for the Hungarian Courts to make parenting orders for the child (paragraph 11(k)). The Hungarian Courts have already determined that they do not have the jurisdiction.
The mother criticises the Hungarian Courts for not ordering that a psychological report be prepared, and for not investigating whether “with the decision to have [the child] returned to Australia she would have appropriate circumstances to return to”. In their decision delivered 19 July 2021, the Hungarian Court noted the mother’s proficiency in speaking English, and that she and the child would be entitled to receive government assistance in Australia, because of their Australian citizenship status.
The mother makes a submission that the father “wants to completely separate my daughter from me”. This is contrary to the final orders sought by the father in his amended Initiating Application failed 26 April 2023 where he sought that he and the mother have equal shared parental responsibility; that X live with him and spend time with the mother each alternate weekend, as well as electronic communication.
The mother seeks this Court adopt the opinions and recommendations contained in the report prepared by the Serbian authorities, pursuant to s 69ZX(3), however the mother 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 Social Services Department is not such a body. I reject the mother’s contention in this regard.
The mother (at page 9 of her submissions) 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 mother’s failure to understand the legal issues around the Australian jurisdiction.
CONCLUSION
The mother contends that parenting arrangements should be determined by the Hungarian courts, however the Hungarian courts have already ordered the mother 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 mother has exhausted her rights of appeal in Hungary.
Accordingly, 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.
As to the mother’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 mother’s stay application fails.
I cannot ignore the possibility that the mother may move the child’s residence to other parts of Europe. I deal with this issue later in these Reasons.
WHAT ORDERS ARE IN THE BEST INTERESTS OF THE CHILD?
Despite an “offer” by the mother that she would facilitate regular communication between the child and the father (albeit it seems only on the proviso that the father would in turn agree for the child to live in Hungary), the child has not had any communication with her father since January 2021 before the child was removed from Australia. In an email from the mother to the father dated 7 July 2022, the mother made the following “offer” (see annexure MI-04 of the father’s affidavit filed 19 October 2022):
-spend as much time as you want in Hungary every year to build a relationship with your daughter.
-during your stay I will do my very best to help this process
-I will arrange for her to go to an international kindy/school so that she learns English and will be able to communicate with you.
-I will not file for division of assets. You can keep the house, you can keep my car, all joint property. I will not ask for anything ever and I am willing to put this in writing with legal implications attached.
-You will never be required to ever pay any child support, or any contribution to maintaing [sic] her. I will never ask for any schooling contributions. I will bear all costs associated with raising her until she turns 18 and even after.
-I will arrange for regular video calls on a weekly basis, so that you can see her and talk to her and continue building a relationship when you are overseas.
-I will help with your visa application so that you can spend longer periods of time in Hungary.
With all the above provided:
-Sign an attested legal document in front of a public notary/consul, that you agree that her usual place of residence is Hungary, and that she can live and stay here permanently.
-Agree that her Hungarian documents (e.g. personal identity card, passport, tax card) can be issued in case of loss or expiry.
You will be able to:
-practice your parental rights, but in Hungary and in Hungary only.
-make joint decisions on her schooling
-spend time, keep in touch and build a relationship with her
(As per the original)
The father contends that the orders sought in his amended Initiating Application filed 26 April 2023 are in the best interests of X.
In oral submissions, Mr Cameron noted that it may be open to the Court to find that, if the mother returned with the child to Australia, it would be in in the child’s best interests for her to live with the mother in Australia and spend graduated time with the father.
The father 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.
In relation to the mother’s allegations of possible genital mutilation by the father or his family, Mr Cameron 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 father or his family would perform a genital mutilation procedure on the child. Instead, the Hungarian Capital City Court said the mother’s “claim regarding the mutilation of the child’s genitalia in [sic] unproven and weightless”. I adopt that finding.
In relation to the mother’s allegations of family violence and that the paternal family will perform a genital mutilation on the child (which the father 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.
In the mother’s application made to the Hungarian Court in November 2022, she contended that electronic communication between the child and the father occur each Thursday from 6.00pm to 7.00pm (see annexure MI-04 of the father’s affidavit filed 19 October 2022). Despite the mother’s contention that the father “has never been prevented from seeing the child or exercising his parental rights, neither while we were living under the same roof, nor since we have separated”, this is simply a falsity. The mother has not facilitated any communication between X and the father since she was removed from Australia in January 2021.
In the mother’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.
Since these proceedings have been on foot, the statutory pathway has altered – even though the destination remains the same, namely orders being required to be in the best interests of a child.
I cannot, nor do I, ignore that the mother’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 father 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 mother feels otherwise, from the comfort of taking the law into her own hands.
I muse, that the flexibility of border control with the European community seems to have prevented the Hungarian Courts, Central Agency and other authorities from enforcing their Orders. Even the father travelling to Hungary at his cost has not secured the child’s return.
It 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 mother, 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.
I take into account that the mother 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.
Whilst communication issues between the father (who does not speak Hungarian) and X, who the mother 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.
It is likely, if the child returns to Australia, that the mother will quickly follow.
If 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.
The success the mother 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
For 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 mother to relocate with X overseas will be determined by applying the principles and law, so similar to those of other Convention countries.
I will order, insofar as the property/financial proceedings are concerned, that those applications be listed for further directions at a Case Management Hearing set for 9.30am on 9 September 2024 – by which time it is hoped some clarity around the development in the parenting dispute will emerge.
I will, on the next occasion, consider bifurcating the parenting and property proceedings so that there is a possibility of achieving some finality in the financial applications at least.
In that regard, it may be necessary to consider obtaining further current valuation evidence in respect of the property at M Street, Suburb E and the husband’s business L Pty Ltd. I note that the wife has not filed a Response to the husband’s further amended Initiating Application filed 26 April 2023, and despite apparent communications based on the child living in Hungary, there is limited engagement yet by the wife on property matters.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 28 June 2024
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