Ashforth & Ashforth

[2010] FamCA 37

FAMILY COURT OF AUSTRALIA

ASHFORTH & ASHFORTH [2010] FamCA 37

FAMILY LAW – JURISDICTION – concurrent proceedings in Australia and England – whether this Court is the clearly inappropriate forum – whether an injunction be granted against the wife regarding continuation of the English proceedings – change of venue – return of the child’s passport

Family Law Act 1975 (Cth)
Family Law Rules 11.17 & 11.18

CSR Limited v Cigna Insurance Australia Limited (1996-1997) 189 CLR 345
Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538
Henry v Henry (1996) FLC 92-685

APPLICANT: Mr Ashforth

RESPONDENT: Ms Ashforth

FILE NUMBER: MLC 9801 of 2009

DATE DELIVERED: 29 January 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 21 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Wood

SOLICITOR FOR THE APPLICANT: Kennedy Wisewoulds

COUNSEL FOR THE RESPONDENT: Mr M Kearney

SOLICITOR FOR THE RESPONDENT: Newnhams

Orders

1. That the application of Ms Ashforth (“the wife”) for a stay of the pending property settlement proceedings in this court is dismissed.

2. That the wife be restrained pending the final determination of all proceedings in Case No. 9801 of 2009 in the Family Court of Australia at Melbourne (including any determination of any appeal) from taking any step in case number … in the Principal Registry of the Family Division at London, England other than adjourning or discontinuing those proceedings.

3. That the pending proceedings in this Court be forthwith transferred to the Sydney Registry, Family Court of Australia.

4. That the pending proceedings be listed for mention and directions before Registrar Campbell in the Sydney Registry at 11.00 am on 10 February 2010.

5. That the husband lodge the passport of the child of the parties E born on … April 2009 with the Registry Manager at the Melbourne Registry on or before 4.00 pm 26 February 2010 and to remain in the Registry Manager’s safe custody until further order.

IT IS NOTED that publication of this judgment under the pseudonym Ashforth & Ashforth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  MLC9801 of 2009

MR ASHFORTH

Applicant

And

MS ASHFORTH

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant (who for convenience I shall refer to as “the husband”) instituted proceedings between the parties by filing in the Melbourne Registry his Initiating Application on 2 November 2009 in which final parenting and property settlement orders were sought.

2. Email notice of the husband’s initiating application was provided by his solicitors to the respondent (who for convenience I shall refer to as “the wife”) on 4 November 2009.

3. In addition, an Application in a Case was filed on behalf of the husband on 21 December 2009.  Interim parenting orders were sought by him as well as an anti-suit injunction in relation to proceedings between the parties commenced by the wife in England. Paragraph 13 of the application is in the following terms:

   “That the wife, [Ms Ashforth], be restrained pending the final determination of all proceedings in Case No. 9801/2009 in the Family Court of Australia at Melbourne (including any determination of any appeal) from taking any step in Case No. […] in the principal Registry of the Family Division at London, England, other than adjourning or discontinuing those proceedings.”

4. The husband’s Reply filed 8 January 2010 also seeks an anti-suit injunction in the same terms as paragraph 13 of his application to which I have referred.

5. On 26 November 2009 the wife issued a petition to which the husband is the respondent in the Family Division of the High Court of England and Wales (“the English proceedings”) in its Principal Registry in London.  The wife seeks principal and ancillary relief.  So far as the latter is concerned, it includes spousal maintenance and property adjustment.  Relief is also sought in favour of the child of the parties including periodic payments; lump sum; and property adjustment.  Paragraph 10(c) attaches a copy of the husband’s initiating application in this Court which makes it clear to the judicial officer before whom the wife’s petition may be considered that the husband had already commenced proceedings in this Court seeking parenting and property settlement orders.

6. Consequently, it is clear that the wife filed her petition approximately three weeks after receiving email notice of the husband’s initiating application.

7. On or about 8 December 2009 notice of proposed issue of the wife’s petition was given by her solicitors to the husband.  The petition, of course, had already issued.

8. The wife filed her Response on 12 December 2009.  Parenting orders were sought by her.  The wife opposed the anti-suit injunction sought by the husband.

9. As has been stated by counsel for the wife, the proceedings which were conducted before me on 21 January 2010 are as follows:

   “1.1.1the Wife’s application for a stay of the financial proceedings pending before the Family Court of Australia;

   1.1.2the Husband’s application for an ‘anti-suit’ injunctions in respect of the proceedings pending in England; and,

   1.1.3the Wife’s application for a change of venue in respect of parenting proceedings (and any such other proceedings as may remain) to the Sydney Registry of this Court”[1]

   [1] Case outline lodged 19 January 2010.

Historical background

1. The following are brief relevant historical matters which are uncontroversial.

2. The parties cohabited for a period of approximately 17 months which commenced in about early December 2007 and continued until they finally separated during May 2009.

3. The parties married in 2008.  Cohabitation and marriage took place in England.

4. The child of the marriage is E (“the child”) who is nine months of age, having been born in April 2009 in Australia.

5. The child has lived with the mother for all of her life in Australia.

6. The husband is 36 years of age.  He is employed by the British public service and is working overseas.  The husband’s place of residence is in England.

7. The wife is 32 years of age and is engaged in home duties.  The wife’s previous occupation was in financial services.  The wife currently lives in Australia.

8. Neither of the parties gave evidence that they had an intention to change the place of their permanent residence.  The husband has spent time in Australia for the birth of the child as well as spending time with the child pursuant to the interim parenting orders made 22 December 2009, to which I will subsequently refer.  I infer that the husband intends to continue to spend periods of time with the child in Australia.

9. On 22 December 2009, after a contested hearing in a duty list, Cronin J made the following interim parenting orders:

   “1.That until further order, the child [E] born […] April 2009 live with the wife.

   2.        That [the child] spend time with the husband as follows:

   (a)on 23 December 2009, 24 December 2009, 26 December 2009, 28 December 2009 and 30 December 2009 for 1 hour and in default of agreement as to the time, from 10.00am until 11.00am (the short times);

   (b)on 1 to 7 January 2010 inclusive, for 2 hours on each day and in default of agreement from 10.00am until 12 noon; and

   (c)      at such other times as agreed.

   3.That the short times as specified in paragraph (2)(a) take place in the presence of the wife’s father [the maternal grandfather].

   4.That the changeover of the child occur at the residence of […, S] or such other location nominated by the husband provided such location is no further than one half hour from the residence of the wife.

   5.That the husband be restrained from removing [the child] from the Sydney metropolitan area during the time set out in paragraph (2)(a) and (b) hereof.

   6.That until further order each party, [THE HUSBAND] born […] May 1973 his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child [E] born […] April 2009 (female) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal and that this paragraph be automatically discharged as and from midday on 9 January 2010.

   7.That all outstanding applications be otherwise adjourned to the case assessment conference at 11.00am on 5 January 2010.

   8.That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.”

The application of the wife for a stay of the property settlement proceedings in this Court

Anti-suit injunction

1. It was made clear by the High Court in CSR Limited v Cigna Insurance Australia Limited that “only after determining that it is not a clearly inappropriate forum should an Australian Court consider whether to grant an anti-suit injunction or to require the applicant to seek a stay of the foreign proceedings”[2].

   [2] CSR Limited v Cigna Insurance Australia Limited (1996-1997) 189 CLR 345 at 347

2. Accordingly, that approach to the issues which I now follow requires a statement of the principles that determine whether or not a court, in this case this Court, is the clearly inappropriate forum particularly in the context of the pending English proceedings.

3. In Henry v Henry the plurality followed the test adopted in Voth v Manildra Flour Mills Pty Limited[3] as follows:

   “…that a stay should be granted if the local court is a clearly and inappropriate forum, which will be the case 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’.”[4]

   [3] Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538 at 564-565

   [4] Henry v Henry (1996) FLC 92-685 at 83,121

4. The plurality also followed Voth in that it was relevant to the determination of whether the local court is a clearly inappropriate forum to consider “relevant” connecting factors and “a legitimate personal or juridical advantage”.  So far as the latter is concerned it is “not a decisive consideration”, the fundamental question being “where the case may be tried suitably for the interest of all the parties and for the ends of justice”[5].

   [5] Henry v Henry supra 83,121

Conclusion

1. I have determined that this Court is not “a clearly inappropriate forum” for the following reasons.

2. I do not accept the submissions that continuation of the proceedings in this Court would be either oppressive or vexatious as those terms have been interpreted in Voth and subsequently followed in Henry and Cigna[6] as subsequently referred to.

   [6] Supra

3. There is no issue that this Court has jurisdiction to adjust the property interests of the parties.

4. It was submitted on behalf of the wife that it may be in effect oppressive as interpreted so far as the wife is concerned, given that the real restate of the parties is situated in England and instructions may have to be given to lawyers and valuers in England for the purpose of determining current market values.  I do not accept those submissions.  For the past five and a half years this Court has provided and implemented Rules of Court for the appointment of single expert witnesses.  It should be a relatively simple matter for advice to be obtained from English lawyers regarding alternative qualified and experienced property valuers so that a suitable choice can be made.  In the event of a lack of agreement, subject to the Rules being complied with the court may appoint such a single expert.  Each of the parties will still have their rights to seek leave to adduce further expert evidence subject to the provisions of Rule 15.49.

5. With regard to the production of relevant documentation by institutions in England as well as in other countries, the husband has indicated his willingness to provide the appropriate signed authorities.  In any event, suitable orders in that regard can be made as have been made in the past in proceedings between other parties in my experience.  The husband will also be subject to the Rules regarding disclosure of documents.

6. With regard to the issue of whether or not this Court can provide “complete relief”, it was submitted that a potential superannuation splitting order would not be recognised, let alone enforceable in relation to the husband’s relevant pension fund in respect of which the husband has current and future entitlements.  Whilst I accept the submission in that regard as being one which has substance, nonetheless I am not persuaded the issue represents a determinative factor for the following reasons.

7. The period of cohabitation between the parties was approximately 17 months, a very short period even by modern standards.  They have one child, still a baby, who lives with the wife in Australia.  The husband is an employee of the British government.  There is no evidence before me that he is likely to retire or resign from the British public service prior to the age of 55 years being the age at which all of his entitlements will fall due.  The husband will not attain the age of 55 years for many years.

8. The wife is currently engaged in home duties.  The wife’s previous occupation was in financial services.  The wife clearly has a capacity to earn income in one or other of those professions albeit perhaps not in the immediate future but all things being equal, in the foreseeable future.  Indeed, the wife’s evidence, which I accept, is that she is currently seeking part-time employment.

9. There is a lack of cogent evidence before me that suggests that it is likely that a superannuation splitting order would be made.  However, the husband’s superannuation entitlements including the potential to receive entitlements by way of a lump sum and otherwise at an earlier age will be both relevant and attract appropriate weight at the hearing of the substantive proceedings.  Should it be accepted by the trial Judge that on the balance of probabilities it was likely that the husband would resign from the British public service at an early age and be entitled to receive the superannuation benefits to which I have referred, then appropriate mandatory injunctions in relation to dispersal of funds that would come into the hands of the husband would fall for consideration for the possible ultimate benefit of the wife.

10. I give much weight to the dicta in High Court judgments:

    “…that although it is not necessarily vexatious or oppressive to bring proceedings in different countries, ‘the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such…that, prima facie the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words’.”[7] [emphasis added]

    [7] CSR Limited v Cigna Insurance Australia Limited supra at 399

11. There is no issue that the proceedings in this Court and the pending English proceedings are between the same parties arising out of their marriage and require the determination of “the identical issue or the same controversy” namely adjustment of property rights of the parties or property settlement between them.  The wife may amend her response to seek spousal maintenance and/or other financial relief as she may be advised.  No submissions were made in relation to financial relief which is or may be sought for the benefit of the child.

12. I also give significant weight to the wife causing the institution of the English proceedings not only subsequent to the institution of the proceedings in this Court but some three weeks after she had received written notice of such proceedings.  An inference may be drawn of forum shopping which has been criticised by various courts over many years.

13. The parenting proceedings between the parties will continue in this Court.  That has been made clear by counsel for each of the parties.  In those circumstances, and having regard to the additional legal costs, potential travel and travel expenses which would be incurred by the wife in the event of both sets of proceedings remaining on foot it is ironical that the wife seeks in effect such a practical outcome, notwithstanding her evidence of the burdensome effect of increasing legal costs.

14. I have taken into account that the parties cohabited throughout the period of their cohabitation which continued until their separation in May 2009 other than for about two weeks following the birth of the child.

15. In addition, I also take into account that the substantive property of the parties is in England.  To that extent there is a real connection with the jurisdiction to be exercised in the Family Division in the English proceedings.

16. In my view, the weight attached to those matters does not overcome the weight which I have given to the matters previously outlined in reaching the conclusion that the proceedings in this Court are not clearly inappropriate.  As was pointed out in Voth “the availability of relief in a foreign forum will always be a relevant factor”[8].  The High Court did not hold that it is the decisive factor. Similarly in Henry it was accepted that “legitimate personal or juridical advantage is a relevant but not a decisive consideration” [9] [emphasis added].  It must be remembered that the balance of convenience test no longer applies in Australia.[10]

    [8] Henry v Henry supra at 83,114

    [9] Henry v Henry supra at 83,121

    [10] Voth v Manildra Flour Mills Pty Limited supra

17. The husband proposes to continue to visit Australia in order to spend time with the child of the parties in accordance with any further interim parenting orders and implicitly pursuant to any agreement reached between the parties or failing agreement, a final parenting order which may be made.  In that regard, he has submitted and will continue to submit to the court’s jurisdiction.  Orders by way of enforcement of final property settlement orders can be made in personam against the husband so as to enable property interests that he may continue to hold in England to be available for the purpose of compliance with final orders that may be made.  No submission to the contrary was made.

18. I have also heeded the guidance provided by the High Court in Henry that in the context of whether these proceedings are oppressive or vexatious as interpreted in that case and earlier judgments of the High Court, that where there are simultaneous proceedings in different countries “with respect to the same controversy” that situation should be avoided to the extent that it is permissible to do so having regard to the relevant principles which must be applied.[11]

    [11] Henry v Henry supra at 83,123

Injunction in relation to the English proceedings

1. I have concluded that the injunction sought on behalf of the husband to which earlier reference has been made will be granted for the following reasons.

2. I have previously determined that this court is not a clearly inappropriate forum.  Consequently, the relief sought by the husband or similar relief as contemplated in Cigna arises for consideration.[12]

   [12] Supra at 398

3. The issue of comity between courts exercising jurisdiction does not arise with the same force as might otherwise occur should either the nature of the pending proceedings or matters raised in those proceedings are different in the English proceedings, as opposed to these proceedings.[13]  Indeed, the financial relief sought is the same in both sets of proceedings, subject to the wife seeking further financial relief as she may be advised.

   [13] Ibid at 398

1. I have also taken into account the absence of relatively large net property of the parties, as well as the obvious financial and emotional strain which each is likely to suffer in the event of both sets of proceedings continuing.  Indeed, so far as the wife is concerned her evidence, which I accept, is that she is currently under significant financial pressure due to her lack of ability to meet reasonable expenses and has had to obtain loans from her parents and family members.  It is not surprising in those circumstances that she has raised the burden of significant duplication of costs.[14]  It is rather bemusing that the spectre is raised of such costs being faced by the wife where there are financial proceedings which could be continued in two countries on opposite sides of the world, yet no mention is made by her in her affidavit, of the same costs issue arising should there be a continuation of both the English proceedings and the parenting proceedings in Australia.  One might reasonably have expected that the same or similar financial pressures would have to be faced by her.

   [14] Affidavit of the wife sworn 17.4.2009 filed 22.4.2009 paragraphs 16 and 30.

2. No submission was made that the injunction sought by the husband should not be granted in the event that a determination is reached that this Court is not a clearly inappropriate forum.

3. Consequently, the order sought will be made.

Change of venue

1. Application is made by the wife for an order that the pending proceedings in this court be transferred from the Melbourne Registry to the Sydney Registry.  I have concluded that such an order will be made for the following reasons.

2. The wife resides in Sydney.  Her lawyers are based in Sydney.  The husband resides in England when he is not otherwise engaged in his duties in another country.

3. Whilst the husband has instructed lawyers in Melbourne there is no impediment to him continuing to instruct those lawyers should the proceedings be transferred to Sydney in that ease of attendance at such lawyers’ offices is not predicated upon whether lawyers principally practise in Sydney or Melbourne.

4. In addition, the application was not opposed by the husband.  The husband’s counsel deftly submitted that he would “encourage” me to not accede to the application on the basis that a hearing of the substantive proceedings is likely to occur sooner in Melbourne than in Sydney.  However, I pointed out to him that notwithstanding the information to which he referred, the up-to-date position is that there will be a change in that regard due to the retirement of a Melbourne based Judge, another Melbourne Judge having to provide judicial time in Townsville this year and the impeding appointment of two further Judges in New South Wales.  Consequently, it is currently no longer likely that the substantive proceedings would be heard sooner in Melbourne than in Sydney.

5. A significant factor is that the hearing of the substantive proceedings in Sydney is likely to result in there being less cost to the wife in particular as she will not face travelling costs for herself and her lawyers and there will be less disruption to her care of the child.

The child’s passport

1. It is common ground that the husband retains the child’s passport.

2. Counsel for the husband informed me that the husband will lodge the child’s passport with the Registry Manager of the Melbourne Registry within 28 days.  An appropriate order will be made.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  29 January 2010