The Lawyer Was Referred, But the Appeal Still Failed: A Bad s 102NA “Strategy” Was Not Enough to Prove an Unfair Hague Trial

In Pensak & Department of Families, Seniors, Disability Services and Child Safety (No 2) [2026] FedCFamC1A 147, the Full Court dismissed the father’s appeal from Hague return orders requiring the children to be returned to Japan. The irony is obvious: the Court accepted that there was enough concern about the father’s former solicitor’s conduct to admit further evidence and refer the solicitor to the Legal Services Commission, Queensland. But the appeal still failed because the father could not prove that the solicitor’s conduct made the trial procedurally unfair, caused a miscarriage of justice, or would realistically have produced a different result. The Court’s message was blunt: professional misconduct concerns may justify regulatory referral, but they do not automatically undo final orders.

🧩 Facts and Issues

Facts:

The father, an Australian citizen and Indigenous Australian man, appealed Hague Convention return orders concerning two children who were dual citizens of Australia and Japan. The mother was a Japanese citizen. The children had lived in Japan for a substantial period before the mother and children travelled to Australia in August 2024. Return flights to Japan were booked for September 2024, but the father retained the children’s Japanese and Australian passports and prevented their return. The State Central Authority later applied for return orders at the mother’s request.

At the first day of the hearing before the primary judge, the father’s then solicitor, Mr G, applied for an adjournment. The primary judge refused. The reasons for refusal included that the Japanese law material relied on by the respondent had been in the father’s possession for more than seven months; late material was limited and the father was permitted to respond in the witness box; the ICL tender bundle largely contained documents authored by, or known to, the father; and the proposed subpoenas were either not served, too broad, irrelevant, or not in proper form.

Immediately after the adjournment application failed, the solicitor said he no longer held instructions and sought to withdraw. Leave was granted. The hearing then proceeded with the father self-represented.

On appeal, the father sought to rely on further evidence about the solicitor’s conduct. That evidence included allegations that the solicitor had failed or refused to perform work because of social and recreational activities and the after-effects of alcohol consumption; had asked the father to prepare court documents himself; had failed to follow instructions; and had told the father the day before the hearing that he would seek an adjournment and stop acting if the adjournment was refused. The alleged plan was to rely on s 102NA to force an adjournment because the father supposedly could not cross-examine the mother himself.

The respondent and ICL did not oppose the father adducing this further evidence. The Full Court admitted it. But after considering it, the Court still dismissed the appeal.

Issues:

1. Did the solicitor make incorrect representations to the primary judge from the bar table?
2. Was the solicitor’s plan to withdraw after a failed adjournment application an abuse of process?
3. Was the father denied a reasonable opportunity to be heard after the solicitor withdrew?
4. Was the father’s legal representation so incompetent that the hearing became unfair?
5. Did any lawyer incompetence or misconduct materially affect the result?
6. Why did the Court refer the solicitor to the Legal Services Commission, Queensland, even though the appeal was dismissed?
7. What is the irony of the Court identifying serious concerns about the lawyer while refusing to set aside the return orders?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 102NA — restriction on personal cross-examination in certain family violence circumstances. The solicitor’s apparent misunderstanding of this provision was central to the attempted strategy.
• s 111B — gives effect to Australia’s Hague Convention obligations through the Regulations.

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

• reg 16 — return of children wrongfully removed or retained, and limited exceptions to return.
• reg 29 — admissibility of documents attached to or supporting Hague applications.

Federal Circuit and Family Court of Australia Act 2021 (Cth)

• s 35 — appellate power to receive further evidence.

Evidence Act 1995 (Cth)

• ss 72 and 78A — relevant to traditional laws and customs evidence.
• s 135 — exclusion of evidence where probative value is outweighed by prejudice, confusion, or undue waste of time.

Australian Solicitors’ Conduct Rules 2023

• Relevant to the solicitor referral because the Full Court considered there was significant concern that the solicitor may have breached obligations as an officer of the Court and obligations under the Conduct Rules.

📌 Precedents Relied On

• CDJ v VAJ — further evidence on appeal may be admitted to ensure proceedings do not miscarry.
• Kioa v West, SZBEL, National Companies and Securities Commission v News Corporation, and Assistant Commissioner Condon v Pompano — procedural fairness is context-specific.
• Dietrich v The Queen, New South Wales v Canellis, Love v Pattison, and Zschokke & Zschokke — there is no general right to legal representation in civil proceedings.
• OP v TP — incompetence of legal representation may amount to a miscarriage of justice in child-related cases, but the appellant must establish incompetence and prejudice.
• Maddax & Danner — in parenting cases, the appellant must establish that counsel was incompetent or wrong, that the decisions affected the judgment, and that a different result would have been reached.
• TKWJ v The Queen, Nudd v The Queen, and Strickland v Washington — appellate courts are cautious about hindsight attacks on counsel performance.
• Metwally v University of Wollongong and Smits v Roach — a litigant is generally bound by the conduct of their legal representative and the way the case is run.
• Tomlinson v Ramsey Food Processing — abuse of process.
• Chong & Kerimowa — lawyer withdrawal and self-representation do not automatically produce procedural unfairness.
• Aon Risk Services v ANU, Sali v SPC, De L, Bamfield, Laing, and Zotkiewicz — Hague proceedings require expedition and finality; adjournments are not lightly granted.

🧠 Analysis

Issue

Why was the solicitor referred to the Legal Services Commission, Queensland, but the father’s appeal still dismissed?

Rule

Incompetence or misconduct by a lawyer is not automatically a ground of appeal. A litigant is generally bound by the way their case is run. To set aside orders because of legal representative incompetence, the appellant must show more than bad lawyering, poor strategy, or even a breach of professional standards. The conduct must have produced an unfair trial, a miscarriage of justice, or a materially different result.

In child-related cases, the Court accepted the relevant approach from OP v TP: incompetence may justify appellate intervention if it so affects the conduct of the hearing that the hearing ceases to be fair, or if wrong forensic decisions produce an unfair result and it is reasonably probable that the result would have been different.

But Hague Convention proceedings are also urgent, summary proceedings. Their purpose is prompt return to the country of habitual residence so that parenting issues are decided in the proper forum. That context weighs heavily against adjournments and against undoing proceedings merely because one party later says the trial could have been run better.

Application

1. The solicitor’s strategy was the real problem

The solicitor’s alleged strategy was extraordinary. According to the further evidence and agreed facts, the solicitor believed s 102NA would apply, advised on that premise, attended the hearing intending to withdraw if the adjournment failed, and treated withdrawal as a way to force the Court into an adjournment.

The Full Court accepted that this was an abuse of process. The strategy was designed to manipulate the Court’s process: make an adjournment application; if it failed, withdraw; then rely on the supposed operation of s 102NA to argue the father could not cross-examine the mother and the trial therefore could not proceed.

That is why the case is so serious for practitioners. The solicitor was not merely alleged to have been underprepared. The allegation was that he used withdrawal itself as a forensic weapon to manufacture an adjournment.

2. The s 102NA premise was wrong

The solicitor’s plan depended on the belief that s 102NA would prevent the father from cross-examining the mother and therefore leave the primary judge with “no chance” of continuing the hearing. The agreed facts recorded that the solicitor’s submissions and conduct indicated he believed s 102NA would apply, that advice was likely given on that basis, and that the withdrawal strategy was intended to use s 102NA to compel an adjournment.

That premise failed. The primary judge permitted the father to cross-examine the mother, subject to relevance and appropriate conduct. When the father said he had been told he could not cross-examine her, the judge told him he could, but that he did not have to if he did not wish to.

So the strategy collapsed. The Court was not forced to adjourn. The father cross-examined the mother extensively.

3. The solicitor made statements that were at least seriously questionable

The father complained about two bar-table representations:

1. that the solicitor was only instructed to appear on the adjournment application; and
2. that the father was ready to proceed.

There was real force in the complaint. The father had paid substantial funds. The solicitor had been on the record for six months. The costs agreement referred to a defended hearing. A costs notice the day before hearing referred to preparation for and appearance at the hearing. The father had paid $68,000 into trust, and about $27,872 remained the day before the hearing.

That is part of the irony. The Court did not pretend the solicitor’s conduct looked clean. It accepted that the evidence raised significant concern.

But the appeal failed because the father did not prove the necessary next step: that the solicitor’s representations were contrary to his instructions, imposed on him, resisted by him, or caused material unfairness.

4. The father could not show he was an innocent victim of the strategy

The father argued that he was a layperson who relied on his solicitor and should not be held responsible for the solicitor’s abuse of process.

The Full Court was not satisfied. The father did not depose that he told the solicitor not to proceed with the strategy. He did not say he resisted it. He did not say the strategy was imposed on him contrary to instructions. He did not say the solicitor’s statement about instructions was wrong.

The Court described that omission as “glaring”. The father’s own role and possible complicity were left to speculation, and speculation was not enough. The Court accepted that it was open to conclude the father and solicitor had jointly pursued a strategy to manipulate the Court into granting an adjournment.

That is why the “bad lawyer” point did not save the appeal. The Court was not satisfied the father was blameless.

5. The father did not correct the alleged misrepresentation at the time

The father also did not tell the primary judge that the solicitor had misrepresented his instructions. When the solicitor made the statements, the father did not contradict him. When the primary judge said words to the effect that the father had sacked his solicitor or withdrawn instructions, he did not correct the judge. He also gave no appeal evidence explaining why he stayed silent.

This mattered. If the father’s position was really that the solicitor had abandoned him against his wishes, the obvious time to say so was immediately. His silence supported the conclusion that he was at least concurring in the strategy.

6. The father’s own courtroom performance undermined the unfairness argument

The father argued that he was denied a reasonable opportunity to be heard because he was left self-represented without time to prepare. The Full Court rejected that.

The transcript showed that after the solicitor withdrew, the father made detailed legal and evidentiary submissions, estimated his cross-examination time accurately, cross-examined the Japanese law expert, cross-examined the mother over more than 80 pages of transcript, and later tendered comprehensive and sophisticated written submissions.

The Full Court concluded that he knew the case, knew the evidence, knew the issues and had been actively involved in preparation. The primary judge also gave him considerable guidance throughout the hearing.

So even if the solicitor behaved badly, the father could not show that the hearing itself was unfair.

7. The Court accepted lawyer-caused unfairness can matter — but not here

The Full Court accepted the general principle that a miscarriage of justice can arise where a litigant accepts incompetent legal advice. The Court also accepted that unfairness caused by a lawyer does not always need to be visible to the trial judge.

That is the key nuance. The appeal was not dismissed because bad lawyering can never matter. It was dismissed because the facts did not establish the necessary unfairness or materiality.

The Court was not satisfied the father was an innocent litigant. To the contrary, the withdrawal strategy appeared to be an informed and deliberate attempt to gain a forensic advantage, and it was an abuse of process. The father also failed to show that he tried to re-engage the solicitor, despite the solicitor still holding funds in trust.

The father also knew of alleged deficiencies in the solicitor’s performance months before the hearing, but did not show that he tried to replace him, secure other representation or remedy the problems.

8. The Hague context made adjournment harder

This was not an ordinary parenting trial about best interests. It was a Hague Convention return case. Hague matters are summary, urgent and focused on forum: whether children should be returned to the country of habitual residence so that parenting disputes can be determined there.

The proceedings had already been on foot for almost a year. The father had previously obtained an adjournment to raise a constitutional issue but did not pursue it. The Full Court emphasised the Convention’s objective of prompt return and the need to deal with applications quickly.

That is another reason the appeal failed. Even where a party is disadvantaged, the Court must consider fairness to all parties, the children, and Australia’s Convention obligations.

9. There was no material difference to the result

Even if there had been some unfairness, the father still had to show materiality. He failed.

The Full Court found that the outcome did not hinge on the father’s cross-examination of the mother or on her credibility. The evidence as a whole heavily favoured the return order. The children had been habitually resident in Japan, the mother had rights of custody, the father breached those rights by retaining the children in Australia, and none of the limited exceptions to return was established.

The father did not identify further evidence that would likely have changed the outcome. The Court described his argument as layers of speculation showing only that the trial could have been conducted differently.

That is the legal reason the appeal was dismissed. Bad representation is not enough unless it matters to the result or destroys the fairness of the hearing.

10. Why the solicitor was referred anyway

The Court referred the solicitor because the evidence suggested serious professional misconduct, even though it was not enough to win the appeal.

The Full Court said the evidence suggested the solicitor engaged in an abuse of process by scheming with the father to procure an adjournment by withdrawing after the failed adjournment application, apparently under the mistaken belief that s 102NA would leave the primary judge with no option but to adjourn. If the strategy had succeeded, it would likely have caused deliberate wastage of Court time and injustice to the other parties and affected persons.

The Court had not heard from the solicitor and recognised that the father’s evidence was not a comprehensive account of communications. Even so, the evidence raised significant concern that the solicitor may have breached his obligations as an officer of the Court and under the Australian Solicitors’ Conduct Rules 2023. The Court therefore directed that the reasons, transcript and relevant affidavit material be sent to the Legal Services Commission, Queensland for consideration of the solicitor’s conduct.

Conclusion

The appeal was dismissed. The father established that there were serious concerns about his former solicitor’s conduct, and the Court was sufficiently troubled to admit further evidence and refer the solicitor to the Legal Services Commission, Queensland. But the father did not establish that the hearing before the primary judge was procedurally unfair or that any lawyer incompetence caused a miscarriage of justice.

The irony is that the father won the regulatory point but lost the appeal. The Full Court effectively said:

Yes, the solicitor’s conduct is concerning. Yes, it may warrant regulatory investigation. Yes, the attempted withdrawal strategy appears to have been an abuse of process. But no, that does not mean the return orders were wrong, the hearing was unfair, or the result would likely have changed.

The children’s return orders therefore remained in place, and the stay orders were discharged.

🧠 Take-Home Lesson

This case is a sharp warning to both litigants and lawyers.

For lawyers, the lesson is brutal: do not use withdrawal as a tactic to force an adjournment. A practitioner is an officer of the Court. If a lawyer deliberately engineers a situation designed to waste Court time, derail a listed hearing, or manipulate statutory protections such as s 102NA, the conduct may be referred to the professional regulator.

For litigants, the lesson is equally important: a bad lawyer does not automatically create a successful appeal. Even where the Court accepts that the lawyer’s conduct is troubling, the appellant still has to prove unfairness, miscarriage of justice and material impact on the result.

The deeper irony is this: the father relied on the solicitor’s bad conduct to try to overturn the return order, but the Court found he had not shown he was an innocent victim of that conduct. His silence, his failure to contradict the solicitor at the time, his lack of evidence resisting the strategy, and his own competent conduct of the hearing all undermined the appeal.

The legal point is simple but unforgiving: professional misconduct may belong before the Legal Services Commission; appellate relief belongs only where the misconduct made the trial unfair or materially affected the outcome.