Federal Circuit and Family Court of Australia

Federal Circuit and Family Court of Australia

Australia

20 November 2024

Byquist & Ieri (No 2)

[2024] FedCFamC1A 217

Appellate Court

Article 7

Not provided

Family Law Act 1975 (Cth)

Appeal from Ieri & Byquist [2024] FedCFamC1F 436 (upheld)

The mother removed the child from Australia to Hungary without the father’s consent. The father commenced proceedings under the 1980 Hague Child Abduction Convention, and the Hungarian courts, including on appeal, ordered the child’s return to Australia after determining that the child’s habitual residence was Australia. The mother did not comply with those orders and later sought to argue in Australian parenting proceedings that Australia was a clearly inappropriate forum. The primary judge rejected that argument, found that the Australian court had jurisdiction, and made interim parenting orders intended to facilitate the child’s return to Australia. On appeal, the mother challenged the interim orders on procedural fairness, best interests and factual grounds. The appellate court dismissed the appeal, holding that no error had been demonstrated. It also rejected the mother’s attempt to argue that the child had become habitually resident in Serbia, noting that a parent cannot unilaterally alter a child’s habitual residence and that the mother was bound by the case she had run before the primary judge.

The appeal was dismissed. The appellate court upheld the interim parenting orders and found no error in the primary judge’s conclusion that Australia was not a clearly inappropriate forum. The child had been wrongfully removed from Australia to Hungary, and the Hungarian courts had ordered the child’s return after finding that Australia was the child’s habitual residence. The primary judge had been entitled to rely on those findings and to conclude that the Australian court had jurisdiction to make parenting orders, including by reference to Article 7 of the 1996 Hague Child Protection Convention as implemented in Australian law.