Gujic & Arterbury (No 2) [2024] – Court Dismisses Stay Application, Orders Children’s Return Overseas

ALDRIDGE J:

1. This is an application for a stay of orders made by the Full Court (Aldridge, Austin and Gill JJ) on 10 April 2024, pending the making of an application to the High Court for special leave to appeal.

BACKGROUND

2. The parties have three children born in 2017, 2020 and 2021, each of whom was born in Malaysia and lived there until the applicant brought them to Australia in late 2023.
3. On 22 February 2024, the primary judge ordered that the children be summarily returned to Malaysia and that, absent agreement, the children were to be delivered to the respondent at 10.00 am on 24 February 2024 at a specified location with the names of the children to be removed from the Family Law Airport Watchlist at the same time.
4. The orders were subsequently stayed after a Notice of Appeal was filed by the applicant on 23 February 2024.
5. The appeal was heard on 26 March 2024 and was dismissed on 10 April 2024. The orders made by the primary judge for the return of the children to the respondent were varied to provide that, absent agreement, the children were to be returned to the respondent at 10.00 am on 11 April 2024. Again, the names of the children were to be removed from the Family Law Airport Watchlist at the same time.
6. We have been informed that the children were returned to the respondent in accordance with the orders of the Full Court. The effect of the combination of events is that the respondent is now free to return to Malaysia with the children. We were informed that she intends to leave Australia with the children later today.

STAY APPLICATION

7. Numerous High Court authorities confirm that this Court has the power to hear and determine applications for stay pending applications for special leave to the High Court (see Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681 at 684 (“Jennings”); De Lewinski v Department of Community Services [1996] HCA 9; (1996) FLC 92-678 (“De Lewinski”); Re Marks and Federated Ironworkers’ Association (1981) 34 ALR 208 at 211).
8. In De Lewinski Gummow J made it plain that a stay can be granted during an unexpired appeal period notwithstanding that no application has yet been filed. That is consistent with the general proposition that a court always has implied power to preserve the subject matter of a dispute.
9. In Jennings Brennan J identified the following factors as material to the exercise of the Court’s discretion as follows at 685:

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

10. The reference to the “extraordinary jurisdiction” is notable.
11. In Edelsten v Ward (No 2) (1988) 63 ALJR 346, Brennan J expanded on that proposition saying at 346:

[The jurisdiction] is one which can only be exercised in extraordinary circumstances. It is as well to emphasise that observation again lest the impression be created that, in the conduct of litigation, the orders of this Court are available to keep matters in statu quo until the litigation is finally resolved. That is not the purpose of the inherent jurisdiction. Something quite exceptional must be shown before that jurisdiction is exercised.

12. In Rahme v Commonwealth Bank [1993] HCA 62; (1993) 117 ALR 618, Deane J said at 620:

Apart from the exceptional case in which special leave to appeal to this court has been actually granted, the final decision of the highest appellate court of a State or Territory is conclusive of the particular litigation. That being so, it is only in demonstrably exceptional circumstances, such as the immediate threat of the destruction of the subject matter of the litigation or of grave and irreparable damage being sustained, that an application to this court for interlocutory relief can be justified.

13. We were informed that the respondent’s visa expires imminently. It may well be that if she returns to Malaysia and waits the requisite period, she may well be able to return to Australia on another short-term visa. The applicant has offered to pay her costs of doing so although, it must be said, only in the broadest of terms.
14. It is obvious, however, that the respondent will return to Malaysia with the children as soon as she is able to do so and as I have said, intends to do so today.
15. The applicant submitted that any return of the children to Malaysia would render any application for special leave to appeal, and subsequent appeal if leave be granted, nugatory because the point of his application is to prevent their return. The applicant added that the respondent would then most likely take the children to Iran. The primary judge found that that was not likely, which finding was upheld by the Full Court.
16. It must be accepted that, at least for practical purposes, if the respondent takes the children back to Malaysia, any return of the children to Australia in light of a successful appeal to the High Court would be in the hands of the courts of that country. I am not prepared, however, to assume that those courts would entirely ignore that success. Whilst any return in those circumstances cannot be guaranteed, it simply cannot be presumed that the children would not be returned.
17. Counsel for the applicant identified the loss that would be suffered by him would be the loss of the opportunity to litigate parenting proceedings in Australia in the event any appeal to the High Court was successful. The applicant however would still be able to prosecute parenting proceedings in Malaysia which is the country in which the applicant, the respondent and the children, until recently, had lived for the whole of the children’s lives. It is difficult therefore to see the significant loss that would be suffered by the applicant that would offend the administration of justice.
18. The summary return of the children to the respondent was found to be in their best interests. The children had lived all their lives in Malaysia until they were abducted by the applicant and brought to Australia. As the primary judge found without challenge, there was no reliable or cogent evidence before her Honour that the courts of Malaysia will not properly consider and determine the parenting arrangements of the children.
19. It is important to emphasise this last point. No parenting orders have yet been made. The applicant is not precluded from seeking whatever orders he wishes from the Malaysian courts, including orders, if he chooses, that the children live with him in Malaysia, where he had been a long-term resident, or here in Australia.
20. His claim for parenting orders will not necessarily be rendered nugatory by any return of the children to Malaysia.
21. I also consider that the best interests of the children require their return; the primary judge obviously considered that the respondent had the capacity to adequately care for the children and her Honour expressly found that she did not pose an unacceptable risk of harm to them.
22. As stated, the children have lived all their lives in Malaysia. Their friends, family, schools and social connections are there, and it would not be in their best interests for the current disconnection to continue.
23. Any stay would cause hardship and difficulty to the respondent. She would have to return to Australia, a country in which she has only lived since she sought the return of the children, on a limited visa. She cannot work here or pursue her university studies.

Prospects of special leave

24. As discussed, the jurisdiction to grant a stay for the purposes of a special leave application has been described as arising on demonstration that the failure to do so would render the appeal nugatory. Despite doubt about whether that is so here, for the purposes of considering the other matters identified by Brennan J in Jennings we will assume that to be the case.
25. Accordingly, I turn now to the foreshadowed application to the High Court. It would be an application for special leave to commence proceedings and the applicant has no right to special leave.
26. The granting of special leave is governed by s 35A of the Judiciary Act 1903 (Cth), which is in the following terms:

35A Criteria for granting special leave to appeal

In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to:

(a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:

(i) that is of public importance, whether because of its general application or otherwise; or(ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and

(b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.

27. Generally, a question of general public importance must be involved for a grant of special leave (Collins v The Queen [1975] HCA 60; (1975) 133 CLR 120 at 123).
28. In Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, Dawson J, with whom Mason CJ agreed on this point, said at 475:

… Leave to appeal may be given where an applicant makes out a prima facie case of error. That is not enough to attract special leave to appeal, which should only be given where, in addition, there is some special feature of the case which warrants the attention of this Court.

…

… the Court shall have regard to the public importance of any question of law and the need to resolve judicial differences of opinion concerning the state of the law. In addition the Court shall, under the section, consider whether the administration of justice, either generally or in the particular case, requires an application for special leave to be granted …

29. The error of the Full Court was said to be that it failed to accept the further evidence proffered by the applicant because, even if it had been available at the hearing before the primary judge, it was compelling. That does not identify an error but seems rather an invitation to the High Court to interpret the facts differently to the Full Court. Counsel for the applicant properly conceded that a decision to reject further evidence on appeal is a discretionary decision to which the principles of House v The King (1936) 55 CLR 499 apply. The asserted error is not one which falls into the categories of reviewable error as identified by those principles unless the exercise of the discretion by the Full Court was unreasonable or plainly wrong. This falls well short of the extraordinary consideration which would attract the attention of the High Court. However even if it be accepted that the applicant had an arguable case for special leave to appeal, I consider that the other matters noted above point persuasively against any stay of the orders.
30. Accordingly, I would dismiss the application.

GILL J:

31. I would agree with the judgment of Aldridge J and join in his reasons.

HARPER J:

32. I also agree and join with the reasons and the proposed orders.

ALDRIDGE J:

COSTS

33. There being no opposition by counsel for the applicant, there will be an order that the applicant pay the respondent’s costs fixed in the sum of $3,000 within 28 days.