Adams & Marchenko

Case [2025] FedCFamC1F 225

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Adams & Marchenko [2025] FedCFamC1F 225

File number MLC 8845 of 2024
Judgment of WILSON J
Date of judgment 7 April 2025
Catchwords

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – ANTI-SUIT INJUNCTION – an application made by the applicant for a short-term injunction to restrain the wife from continuing proceedings commenced in Country B – allegedly about $300m in assets in dispute – the applicant has sat on his rights with regards to the Country B proceeding – held, injunction application dismissed.

FAMILY LAW – QUIA TIMET INJUNCTION – test to be applied – held, test not satisfied.

Legislation

Family Law Act 1975 (Cth) ss 75(2), 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 8.14

Women’s Charter 1961 (The Republic of Singapore)

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965
Cases cited

A v Hayden (1984) 156 CLR 532

Apotex Pty Ltd v Les Laboratories Servier (No 2) [2012] FCA 748

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425

Beecham Group Ltd v Briston Laboratories Pty Ltd (1968) 118 CLR 618

Bendigo & County Districts Trustees & Executors Co Ltd v Sandhurst and Northern District Agency Co Ltd (1909) 9 CLR 424

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

Hillam v Barrett [2019] FamCA 193

Henry v Henry (1996) 185 CLR 571

Hooper v Rogers [1975] 1 Ch 43

Incitec Ltd v Alkimos Shipping Co (2004) 138 FCR 496

Lin v Yew (2020) 62 Fam LR 244

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197

Rainer & Lopez [2025] FedCFamC1F 214 (31 March 2025)

Scarffe v Obannon [2020] FamCA 77

Stanford v Stanford (2012) 247 CLR 108

Sun & Yeng (No 5) [2024] FedCFamC1F 702

Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

Division Division 1 First Instance
Number of paragraphs 42
Date of hearing 4 April 2025 and 7 April 2025
Place Melbourne
Counsel for the applicant Mr M. Bartfeld KC
Solicitor for the applicant Lander & Rogers
Counsel for the respondent Mr L. Glick KC with Ms H. Renwick
Solicitor for the respondent Coote Family Lawyers

ORDERS

MLC 8845 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN

MR ADAMS

Applicant
AND

MS MARCHENKO

Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

7 APRIL 2025

THE COURT ORDERS THAT –

1.The injunction application sought by the husband in paragraphs 2 and 3 of his application in a proceeding sealed 2 April 2025 is dismissed.

2.The further hearing of this proceeding is adjourned to 10.00am on 26 May 2025.

3.Costs are reserved.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This…

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Details
AGLC
Adams & Marchenko [2025] FedCFamC1F 225
Case
[2025] FedCFamC1F 225
Decision Date

CaseChat Overview and Summary

In the case of Adams & Marchenko, the Federal Circuit and Family Court of Australia dealt with an application for an anti-suit injunction and a qui-tam injunction made by the husband against his wife. The husband sought to prevent his wife from continuing proceedings in Country B, where she is a citizen and resides, that allegedly involve approximately $300 million in assets. The husband argued that by participating in the Country B proceedings, he would be submitting to the jurisdiction of the Country B court, and sought to restrain his wife from continuing with those proceedings in an Australian court.

The court considered two main legal issues: firstly, whether the husband's application for an anti-suit injunction should be granted, and secondly, whether the husband satisfied the test for a qui-tam injunction. The husband argued that his failure to contest the Country B court's jurisdiction in the required manner did not amount to submitting to the jurisdiction of that court, and that an anti-suit injunction was necessary to protect his rights. The wife, on the other hand, contended that the application lacked urgency and that the husband had sat on his rights by not contesting the Country B court's jurisdiction.

The court found that the husband had not satisfied the test for an anti-suit injunction as he had not demonstrated that his failure to contest the Country B court's jurisdiction would result in an injustice. The court also found that the husband had not satisfied the test for a qui-tam injunction, as the circumstances did not indicate an immediate threat of harm if the injunction was not granted. The court dismissed the husband's injunction application and adjourned the further hearing of the proceeding to a later date, reserving costs.

The final orders of the court were that the injunction application sought by the husband was dismissed, the further hearing of the proceeding was adjourned to 10.00am on 26 May 2025, and costs were reserved. The form of the order is subject to review and potential variation under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

MLC 8845 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MR ADAMS

Applicant

AND

MS MARCHENKO

Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

7 APRIL 2025

THE COURT ORDERS THAT –

1. The injunction application sought by the husband in paragraphs 2 and 3 of his application in a proceeding sealed 2 April 2025 is dismissed.

2. The further hearing of this proceeding is adjourned to 10.00am on 26 May 2025.

3. Costs are reserved.

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

For the reasons set out below, I dismiss the husband’s injunction application.RELEVANT BACKGROUND The wife is a citizen of Country B and a permanent resident of Australia, currently 57 years of age. The husband was born in Country C, is now aged 58 and is a permanent resident of Australia. He is a citizen of Country D although he said in an affidavit made on 31 March 2025 that he has not lived in Country D since 1989. The wife currently lives in Country B. The parties met in Country C in 1996 then married in City E in early 1999 and then commenced living together. In 1999 or 2000 or thereabouts the couple began living between Australia and Country B. They do not have children. They separated in February 2025. The evidence in relation to the parties’ assets was very imprecise. In Australia, since 2015 they have owned F Street Suburb G, being the parties’ former matrimonial home. The husband deposed to he and the wife being shareholders in various companies in Australia. Those were – (a)H1 Pty Ltd;(b)H2 Pty Ltd;(c)H3 Pty Ltd;(d)H4 Pty Ltd;(e)H5 Pty Ltd; (f)J Pty Ltd;(g)K Pty Ltd; and (h)L Pty Ltd. The precise terms of the shareholding of each of the husband and the wife in the companies mentioned immediately above was not stated nor was it said who were the office holders of each of those companies. It seems that H1 Pty Ltd owns the real property known and described as M Street, Suburb N because the husband stated that he proposed moving into the Suburb N property in early April 2025. The husband deposed to the wife holding a 50% interest in real property located in Suburb P, the other 50% interest being held by the wife’s mother. Precisely how the husband knew those matters he did not say. He did not exhibit a copy of the relevant title search in the way he did for the Suburb G property.THE EXTENT, VALUE AND LOCATION OF THE PARTIES’ ASSETS During the submissions by counsel for the husband on 4 April 2025 I asked Mr Bartfeld KC the value, in broad terms, of the parties’ assets. Mr Bartfeld’s response was guarded. He submitted that the parties’ assets in Australia were made up of real property (the Suburb G property and the Suburb N property) and that the evidence presently before the court did not disclose very much more. Mr Bartfeld submitted that no valuation evidence is yet before the court and that in or about two weeks time the husband will complete his valuation evidence. Mr Bartfeld relied on the evidence in paragraphs 23 to 29 of his client’s 31 March 2025 affidavit in which the husband stated that – (a)he and the wife own the Australian incorporated business;(b)he and the wife own the Suburb G premises, the Australian incorporated business and H1 Pty Ltd which owns the property in Suburb N;(c)the wife and her mother own the property at O Street, Suburb P; and(d)on the wife’s estimate, the parties’ assets in Australia are approximately $20,500,000 in value.[1][1] The husband deposed to the wife’s estimate in the dollar perfect figure of $20,595,629 which was scarcely “an estimate”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

When the fully contested interlocutory anti-suit injunction is ventilated before me, consideration will be agitated over statements of principle from key cases in the field. They include Oceanic Sun Line Special Shipping Co Inc v Fay,[7] Voth v Manildra Flour Mills Pty Ltd,[8] Henry v Henry,[9] CSR Ltd v Cigna Insurance Australia Ltd,[10] Hillam v Barrett,[11] Scarffe v Obannon,[12] and Lin v Yew.[13] However, consideration of those cases awaits another day.[7] (1988) 165 CLR 197.[8] (1990) 171 CLR 538.[9] (1996) 185 CLR 571.[10] (1997) 189 CLR 345.[11] [2019] FamCA 193.[12] [2020] FamCA 77.[13] (2020) 62 Fam LR 244.CONSIDERATION The first issue is the husband’s apprehension that by participating in any shape or form in the Country B proceeding, even to contest jurisdiction, he is submitting to the jurisdiction of the Country B court. He has elected not to contest the jurisdiction of the Country B court in the manner required by the Country B court. Rather than doing as the Country B court requires in completing a form in the manner prescribed by the court, the husband takes the view that he will seek an in personam remedy against the wife in an Australian court in an endeavour to prevent the wife from further prosecuting the Country B proceeding yet he will not do as the Country B court requires in order to agitate the Country B court’s jurisdiction. No evidence exists of the likely events if the husband actually completed the documents in which he asserted that jurisdiction was being challenged. For example, it was not said – (a)whether the husband was entitled as a matter of Country B law to complete the document asserting a jurisdictional challenge but to do so without prejudice, and if jurisdiction was found, then to subsequently bring an anti-suit injunction applicable to Country B;(b)what the likely time frame was for the hearing of any challenge to jurisdiction in Country B, assuming the husband completed the Country B form putting the Country B court’s jurisdiction in issue;(c)what the state of the law in Country B was about demonstrating that Country B in fact and in law lacked jurisdiction to hear the dispute between the husband and wife and the legal basis for that proposition; and(d)whether in fact and in law the husband may be precluded from later challenging the jurisdiction of the Country B court if he completed the form indicating his challenge to jurisdiction and the Country B court dismissed the challenge to jurisdiction. No evidence was before me about the law and practice of the Country B courts on a challenge to jurisdiction of the sort raised in this case. The wife’s contention that no urgency applies to this application for an injunction has considerable merit, in my view. The husband has known since mid February 2025 of the existence of the Country B proceeding. Yet he filed this present injunction application on 2 April 2024 asserting he needed it determined by not later than 7 April 2025. In other words between mid February 2025 and 7 April 2025 the husband could have, but failed to, indicate to the Country B court that he challenged the jurisdiction of the Country B court. He now asserts that it is urgent that he obtains the injunction he seeks against the wife.