Bestari & Henley
[2022] FedCFamC1F 970
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bestari & Henley [2022] FedCFamC1F 970
File number: CAC 2301 of 2021 Judgment of: GILL J Date of judgment: 8 December 2022 Catchwords: FAMILY LAW – FORUM – Parallel proceedings in Australia and Country B – Parenting proceedings and financial proceedings – Where the husband is agitating proceedings in Country B following the granting of divorce from the wife – Where the wife commenced proceedings regarding parenting and property with the Federal Circuit and Family Court of Australia (“FCFCOA”) and the husband has been engaged in those proceedings – Real property located in Australia and Country B – Where the husband is living in Country B, and the wife and son are living in Australia – Where the wife has consistently maintained a position in the Country B proceedings that the proper forum for the matters was with FCFCOA – Where the husband previously conceded that FCFCOA has jurisdiction to hear the parties’ dispute – Anti-suit injunctions directed to foreign proceedings – Refusal of stay of local proceedings – Litigation funding. Legislation: Family Law Act 1975 (Cth) Part VII, ss 69C, 79, 117
Family Law Reform Act 1995 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 25
Cases cited: B v B (2003) 172 FLR 286
British South Africa Co v Companhia de Moçambique [1893] AC 602
EJK v TSL (2006) 35 Fam LR 559
Henry v Henry (1996) 185 CLR 571
Oceanic Sun Line Special Shipping Co. Inc. v Fay (1988) 165 CLR 197
Parker v Parker (1992) 16 Fam LR 458
Penfold v Penfold (1980) 144 CLR 311
Salvage & Fosse (2020) 61 Fam LR 45
Stanford v Stanford (2012) 247 CLR 108
Voth v Manildra Flour Mills Pty Ltd (1991) 71 CLR 538
ZP v PS (1994) 181 CLR 639
Division: Division 1 First Instance Number of paragraphs: 117 Date of hearing: 11 November 2022 Place: Canberra Counsel for the Applicant: Dr J Behrens Solicitor for the Applicant: Hosking & Gosling Legal Counsel for the Respondent: Mr M Auld Solicitor for the Respondent: Delaney Lawyers ORDERS
CAC 2301 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BESTARI
Applicant
AND: MR HENLEY
Respondent
order made by:
GILL J
DATE OF ORDER:
8 December 2022
THE COURT ORDERS THAT:
1.The Response to an Application in a Proceeding filed by Mr Henley (“the husband”) on 8 November 2022 is dismissed.
2.The husband is hereby restrained, by way of injunction, from taking any further steps and from doing any act or thing or causing any third-party agent, servant or otherwise from doing any act or thing to commence and/or continue to prosecute proceedings in Country B by way of suit or other claim for relief with respect to:
(a)X (“X”) born 2014; and
(b)Any property of the parties to these proceedings
3.Ms Bestari (“the wife”) is directed to withdraw her appeal in the Country B proceedings against the husband within 28 days of these orders and then to promptly provide evidence of having done so to the legal representatives of the husband.
4.The parties are directed to do all acts and things and sign all documents necessary to list for sale, and to effect the sale of the Country B property known as C Property located at D Street, E District in F Region in Country B being Certificate Number …/E District, as described in land Measurement Letter dated … Number …/E District/…, Land Plot Identification Number …, in the E District in F Region (“C Property”) and to deal with the proceeds in the following manner:
(a)Pay the sum of $150,000 into the trust account of Hosking & Gosling Legal to be drawn upon for the purpose of meeting legal fees and disbursements of the wife;
(b)Cause any funds in excess of the $150,000 to be held on trust on behalf of the parties in the trust account of Hosking & Gosling Legal, with no drawing from such being permitted other than at the written direction of both parties or an order of the court.
5.To the extent only that the orders of the Senior Judicial Registrar of 3 November 2021 otherwise restrain the parties from dealing with the C Property, such orders are discharged.
6.The proceedings are, save on the issue of costs, adjourned to a date to be fixed before a Judicial Registrar for further directions.
Costs
7.Should a party seek costs in relation to this judgment then:
(a)Any such party pursuing costs is to file and serve submissions in support of any such orders, restricted to no more than five pages in length by 4.00 pm on Wednesday 14 December 2022;
(b)Any party resisting such order is to file and serve submissions in resistance of any such orders, restricted to no more than five pages in length by 4.00 pm on Friday 16 December 2022;
(c)Any party seeking to reply to such submissions is to file and serve written submissions of no more than two pages in length by 4.00 pm on Monday 19 December 2022.
8.Absent any application to be heard orally the issue of costs will be determined in chambers.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bestari & Henley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
introduction
The applicant wife, Ms Bestari, born in Country B in 1980, and the respondent husband, Mr Henley, born in Australia in 1961, commenced a relationship in Country B in 2009. The parties married in Country B, recorded with the Registry Office in late 2012. The parties have one child together from their relationship, X (“X”), born in Australia 2014 (currently 8). X is a dual Country B and Australian citizen. The husband is an Australian citizen and has primarily resided in Country B since 2006 under a long-term residency permit. He is currently in Country B. The wife is a Country B citizen and an Australian permanent resident, and also intends to apply for Australian citizenship. She and X are currently present in Australia. The parties have property and business interests in both countries.
These proceedings concern, in large part, parallel parenting and property proceedings in this Court and in the City G District Court, Country B.
The husband, who instigated proceedings in Country B, has participated in the Australian proceedings, instigated by the wife that involve parenting and financial issues, apparently relinquishing (for a period) his resistance to Australia as a forum.
However, by the time of this hearing the husband’s parenting and divorce proceedings in Country B were finalised, subject to the wife having lodged an appeal. Those proceedings both granted a divorce and gave the husband custody of the parties’ child. The husband has not, as yet commenced property proceedings in Country B, although he has indicated his intent to do so.
The wife seeks to prevent further proceedings in Country B, along with litigation funding by means of a costs order.
The husband initially sought that the Australian parenting and property proceedings be stayed and that the wife be restrained by an anti-suit injunction from commencing further proceedings in Australia. However, during the hearing of the matter, although the husband maintained that Australia is not an appropriate forum, he conceded that he could not, at this point establish that Australia was not an appropriate forum for the resolution of the parenting dispute. He accepted that the outcome of his current application to restrain the parenting proceedings was either dismissal or adjournment, contending that it is not presently open to establish whether the conduct of the proceedings in Australia is in the child’s best interests.
The husband maintained his position that the Australian property proceedings should be the subject of restraint.
The orders sought by the wife and husband are included as annexures at the end of this judgment.
Background
The parties have moved between Country B and Australia during their relationship. X was born in Australia. Between 2018 and 2020, X attended pre-school in F Region. The parties returned to Australia in early 2020, living together in a property at H Town NSW, with X attending J School.
The parties disagree as to whether they were separated from 16 July 2021, the wife asserting that they were separated under the one roof from then, the husband denying that separation occurred until 14 October 2021, when the wife and X left the property and obtained interim Apprehended Violence Orders.
The wife and X have remained in Australia since then, the husband returning to live in Country B in or about early 2022.
The parties hold various corporate and property interests in both Country B and Australia.
The husband is a director of, and the parties hold various interests in, the following companies in Australia
(a)K Pty Ltd
(b)L Pty Ltd
(c)M Pty Ltd
(d)N Pty Ltd
The husband holds the following properties in Australia in his name:
(a)O1 Street, H Town, NSW
(b)O2 Street, H Town, NSW
(c)P Street, Q Town, NSW
(d)R Street, Suburb S, NSW
(e)T Street, U Town, NSW
The wife owns a number of properties in Country B in her name:
(a)V Property
(b)C Property
(c)W Property
The husband asserts that C Property and W Property were acquired by use of his funds.
PROCEDURAL HISTORY
Applicant Wife
As per the wife’s Case Outline Document filed on 9 November 2022, she relied upon the following documents:
(1)Affidavit of Ms Bestari filed 10 October 2022;
(2)Affidavit of Mr Z filed 10 November 2022;
(3)Affidavit of Ms GG filed 31 October 2022;
(4)Amended Application in a Proceeding filed 31 October 2022;
(5)Financial Statement of Ms Bestari filed 10 November 2022;
(6)Costs Notice filed 11 November 2022;
(7)Tender Bundle; and
(8)Case Outline Document filed 9 November 2022.
Respondent Husband
As per the husband’s Case Outline Document filed 10 November 2022, he relied upon the following documents:
(1)Response to Application in a Proceeding filed 8 November 2022;
(2)Affidavit of Mr Henley 7 November 2022;
(3)Financial Statement of Mr Henley filed 5 November 2022;
(4)Affidavit of Dr AA filed 10 November 2022; and
(5)Affidavit of Ms BB filed 10 November 2022.
PROCEDURAL HISTORY
In late 2021 NSW Police obtained a Provisional Domestic Violence Order protecting the wife from the husband.
The wife filed an Initiating Application on 22 October 2021, stamped with the court seal on 25 October 2021, seeking final relief in relation to parenting, property and spousal maintenance, along with interlocutory orders in relation to parenting, spousal maintenance, disclosure in relation to property, injunctive orders and various ancillary orders.
An Application for Divorce was filed by the husband with the City G District Court in F Region, Country B in late 2021 and the application was registered by the court a few days later in late 2021.
At that time the husband, wife and child were present in Australia.
The matter was listed before the City G District Court on a number of dates between 2021 and 2022.
The wife was not alerted to the Country B proceedings by the husband until he disclosed them in his affidavit filed on 20 December 2021 in this Court. By way of explanation for the delay, the husband explained that service was effected, under Country B law, through the Country B Embassy where a party was not present in Country B. He had, however, specified the wife’s residence as his Country B residence, under circumstances where he knew that she was not there. No other explanation was given by the husband for his delay in informing the wife of the Country B proceedings, as he continued to participate in the Australian proceedings. Whatever the arrangements were for service, the husband chose not to place the wife or court on notice of his Country B litigation until the filing of his affidavit.
Unsurprisingly, there was no appearance for the wife in the City G District Court proceedings in 2021.
Meanwhile, in Australia, a Senior Judicial Registrar made interim orders by consent on 3 November 2021 including that that X lives with the wife in Australia and spends time with the husband. He also placed a restraint on selling, transferring or disposing of the parties’ assets. Directions were also made for the parties to prepare for an interim hearing listed for 22 December 2021.
The parties attended a parenting and property mediation on 3 December 2021.
On 14 December 2021, the wife filed a further Application in a Proceeding seeking interim financial orders, including orders for property settlement preparation and spousal maintenance and for the matter to proceed on an undefended basis if the husband had not filed and served his materials by the stipulated date given by the Senior Judicial Registrar.
Despite earlier consenting to orders, the husband filed his Response to the Initiating Application on 20 December 2021 seeking the wife’s application be dismissed on the basis that “the Federal Circuit and Family Court of Australia (sic) be declared to be an inappropriate forum” for conducting the matter. It was in the affidavit in support of this response that the husband first alerted the wife to the parallel proceedings instituted by him in Country B.
The matter was transferred to Division 1 by a Judicial Registrar on 24 December 2021.
The wife retained a lawyer in Country B, Ms CC, to represent her in early 2022 in the City G District Court proceedings.
The husband subsequently travelled to and has remained in Country B since early 2022. As a result, he last spent time with X in early 2022.
On 18 February 2022, the Deputy Chief Justice made orders for the issue of forum to be heard by Justice Austin on 5 July 2022, and gave directions to the parties regarding that hearing.
On 9 March 2022, Justice Austin relisted the matter to give directions so that it would be heard earlier, on 16 May 2022. At those directions, the husband conceded that the court has jurisdiction to entertain the parties’ parenting dispute under Part VII of the Family Law Act 1975 (Cth) (“the Act”). While at the hearing of the matter before me, the husband styled this as a mere concession as to the jurisdictional prerequisites under the Act being met in respect of X, the concession as to jurisdiction came in the context of what had previously been a live dispute as to forum in relation to parenting. The concession should not be taken as less than an acknowledgement of the appropriateness of Australia as the forum in relation to parenting.
Given that concession, what then remained was the issue of forum in relation to the financial dispute. In preparation for that matter, Justice Austin directed that the parties agree on a single expert to prepare a report regarding:
(i)The application of Country B law to the property and financial interests of spouses in Country B and Australia;
(ii)The recognition of Australian orders by Country B law;
(iii)The likely duration of proceedings in Country B if proceedings are commenced there; and
(iv)The likely costs for each party in prosecuting their financial proceedings in Country B.
Despite his concession before Justice Austin that led to the discontinuation of the husband’s challenge to forum in relation to parenting, the husband continued in his pursuit of orders in relation to X in the City G District Court.
In early 2022, the Country B divorce proceedings came before the City G District Court for directions. The husband contends this was the first time the wife engaged in the Country B proceedings. The parties agreed to attend judicial mediation with a judge of the City G District Court.
At that time, in early 2022, there was a mediation at the City G District Court. The wife attended online and with Ms CC in person. The husband attended in person with his Country B lawyer. No agreement was reached. In addition to discussing the divorce proceedings, the husband sought to discuss parenting for their son. The wife declined to do so noting the interim orders and ongoing proceedings in this Court.
On 6 April 2022, the wife agreed to the appointment of Dr DD as the single expert in preparing a report by 9 May 2022 for the hearing as to forum then listed before Justice Austin.
On 16 May 2022, Justice Austin, by consent, dismissed the following aspects of the husband’s application:
That the Federal Court and Family Court of Australia be declared to be an inappropriate forum for the conduct of the wife’s application filed 22 October 2021.
That the wife be injuncted from further proceedings with her application filed 22 October 2021.
Or, in the alternative to Order 1, that the application filed by the wife on 22 October 2021 be permanently stayed.
That the Orders made on 03 November 2021 be suspended pending determination of the Respondent’s challenge to appropriate Forum.
The husband explained that this position had been taken by him as the parties had reached an in principle agreement and hence it was necessary to concede the forum issue to facilitate the making of consent orders to reflect the agreement. Although this agreement has not resulted in consent orders, the agreement between the parties to settle the financial dispute remained on foot until the divorce order and parenting orders were made in Country B, when the husband signalled that despite the heads of agreement, there would be no entry into consent terms.
Continuing his pursuit of relief in relation to divorce and parenting in the City G District Court, in mid-2022, the husband filed a response in those proceedings. The wife was unable to file her answer due to technical difficulties, later filing a short time later in 2022. Significantly, the wife continued to contest the appropriateness of the conduct of the proceedings in the City G District Court, disagreeing with the husband’s application for full custody of X on the basis that there were Orders and proceedings in Australia in the following terms:
[8] The Respondent firmly rejects the Claim in number 3 regarding the Plaintiff’s application for full custody, because the related custody rights and guardian rights have been processed in the Australian Court since October 2021 and are still ongoing because the child [X] does not want to move with the Plaintiff to [F Region] and currently the child is safe with the Respondent and is in good a good state and is happy. Therefore, the Respondent requests the Honourable Panel of Judges who are examining the a quo case not to grant the Plaintiff’s Petition number 3 regarding Child Custody.[1]
(As per original)
[1] Affidavit of Mr Z filed 10 November 2022, page 39.
The wife maintained this objection, and on 7 June 2022 her Australian lawyers replied to the husband’s Australian lawyers advising that the wife did not agree to the City G District Court determining the parenting or the property dispute in the following terms:
[1] Our client does not consent to any Orders being made with respect to the parties parenting or property dispute in the [Country B] jurisdiction. Our client maintains that Australia is the appropriate jurisdiction. We draw your attention to your client’s concession as contained in Notation A of Orders dated 9 March 2022 that the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to entertain the parties parenting dispute under Part VII of the Family Law Act 1975 (Cth) together with Orders dated 16 May 2022 that dismiss the Orders sought by your client insofar as they raise an issue with respect to forum.[2]
(As per original)
[2] Affidavit of the wife filed 10 October 2022, Annexure HH 12.
In mid-2022, the husband filed his response in the Country B divorce proceedings.
Consent orders were entered into by the parties before a Judicial Registrar on 15 June 2022, noting that there remained an in principle settlement of the property dispute, but also providing for the appointment of a single expert in the parenting matter.
In mid-2022, the wife re-filed documents in the City G District Court disputing that the resolution of the parenting proceedings in City G District Court.
In mid-2022, evidence of the marriage certificate and identification documents were presented to the City G District Court.
A short time later, in 2022, the parties’ lawyers attended the City G District Court where the husband’s material relied upon and witnesses were identified, while some days later, Ms CC attended court to identify the material relied upon and identify witnesses for the wife’s case. Subsequently in mid-2022, Ms CC attended the court and advised that the wife’s nominated witness was unable to attend City G District Court in person. The matter was adjourned.
In late 2022, Ms CC filed a document entitled “conclusion of the defendant” where the wife consented to the divorce order being made by the City G District Court, whilst continuing to object to any further Orders being made with respect to parenting, in the following terms:
6. The Defendant has taken legal action in Australia.
…
The Defendant has filed a lawsuit against the Plaintiff in Australia regarding the family law case at the Federal Circuit and Family Court of Australia, which is currently still being processed in Australia.
…
2. The Defendant wants the court to refuse to grant the Plaintiff’s claim regarding Child Custody to the Plaintiff
That the Defendant requested the Honor of the Panel of Judges who examined the Aquo case not to grant the Child Custody to the Plaintiff due to the Plaintiff’s abusive attitude towards the child and the Defendant has also filed a family lawsuit related to child custody in Australia, which is still in progress. The legal action is based on evidence T-3. Copy of Copy, English Document namely Final Order Apprehended Domestic Violence Order – [Mr Henley] issued by Local Court of New South Wales Australia [in late] 2021, evidence T-4. Copy of Copy, English Document namely The Court Orders for Family Law Act 1975 in the Federal Circuit and Family Court of Australia (Division 1) File No: (P) CAC2301/2021 Between [Ms Bestari] (Applicant) and [Mr Henley] (Respondent) Order March 9th, 2022 and T-5, Copy of Copy, English Document namely The Court of Australia (Division 1) File No: (P) CAC2301/2021 Between [Ms Bestari] (Applicant) and [Mr Henley] (Respondent) Order May 16th, 2022. [3]
(As per original)
[3]Affidavit of the wife filed 10 October 2022, Annexure HH 14, pages 12–14.
However, in late 2022, the City G District Court determined the application in the husband’s favour, granting a divorce and giving custody of X to him. Relevant extracts were identified as follows as setting out the orders made in adjudication of the husband’s claims:
To grant the Plaintiff’s lawsuit in its entirety;
To declare legally that the marriage between the Plaintiff and the Defendant solemnized in [City G], [in mid-2012], pursuant to the marriage Certificate No. […], dated […] 2012 is legal and broken off due to divorce with all its legal consequences;
To determine legally that the child named [X], male born in [EE Town], Australia […], 2014, as stipulated in the Birth Certificate Number […] who currently live and is under the custody of the Defendant, is enacted to be the custody right of the Plaintiff;
To order both parties to register this Divorce Verdict at the […] of [City G] within a period of 60 (sixty) days upon the verdict has permanent legal force;
To sentence the Defendant to pay for the case fees which up to the present is determined in the amount of […] ([in Country B currency]);
In witness whereof, it is decided in the meeting of Judge Panel of District Court of City G on [in late], 2022, by us, [Dr AA], as the Chairman of the Judge Panel, [Mr KK]., and [Mr DD]., each as the Judge Member respectively, appointed under the Decree of the Chief of District Court of [City G] Number […] dated […], which verdict was pronounced [in late] 2022, in the hearing open for public by the Chairman of the Judge Panel, in the presence of both Judge Members, assisted by [Mr LL]., the […] of the District Court of [City G] and attended by the Attorney at Law of the Plaintiff and the Attorney at Law of the Defendant; [4]
(As per original)
[4] Affidavit of the husband filed 7 November 2022, Annexure JJ2, pages 169–170.
The wife is appealing the orders made in Country B. It appeared uncontroversial that the appeal is in the nature of a hearing de novo. The wife asserts that she has lodged the appeal in an attempt to preserve her position in the Country B Courts, but that if she is granted the relief that she seeks here she will withdraw the appeal.
On 31 October 2022 the wife filed the application for anti-suit injunctions in this Court. The husband is critical of the wife for not applying for an anti-suit injunction at an earlier time. However, it should be observed both that throughout this time the husband was participating in the Australian proceedings in relation to parenting and financial matters, and the wife was resisting the Country B proceedings at least in part on the basis that the parenting matter ought to have been resolved in Australia. There is some irony in the husband’s criticism of the wife given that he relinquished the claims in respect of forum that he now pursues.
The Country B Proceedings
The husband obtained an expert report in relation to Country B law for these interim proceedings. The report was not objected to and was relied upon by both parties. The contentions set out in the report did not appear to be controversial.
Of particular note were the following propositions:
(a)As a foreign national the husband cannot own immovable property in Country B, immovable property incorporating land and the right to build, but not the building itself;
(b)The husband can however hold rights of occupation;
(c)Property acquired during the relationship is subject to 50-50 division;
(d)The Country B Court will have no regard to, nor make orders regarding property held overseas;
(e)Orders of an Australian Court may be taken into account by the Country B Court, but will not be binding or enforceable;
It appeared to be uncontroversial that the City G District Court would not deal with the financial aspects of the marriage breakdown without first finalising the divorce proceedings. It also appeared uncontroversial that the City G District Court was not required to deal with the parenting aspect simply because it dealt with the divorce.
Relief in respect of the financial proceedings
The relief pursued by the wife, and for a period the husband, in this Court in respect of their financial claims encompasses property held both inside and outside of Australia. This Court is empowered by s 25(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to exercise jurisdiction in relation to persons and things outside of Australia.
Despite such a provision the husband asserts that jurisdiction should not be exercised in relation to the parties’ financial dispute on the basis that Australia is not appropriate as a forum. He seeks that the wife’s application be stayed, and that an anti-suit injunction be issued to prevent the wife from commencing a further action.
The test as to forum in relation to the property proceedings is that set out in Voth v Manildra Flour Mills Pty Ltd (“Voth”),[5] adopting the test identified by Brennan J in Oceanic Sun Line Special Shipping Co. Inc. v Fay (“Oceanic Sun”).[6] In short form, the starting point is that Australia is available as the forum unless it is established that it is a clearly inappropriate forum. That determination is one reliant upon judicial impression informed by an array of potential considerations.
[5] (1991) 71 CLR 538.
[6] (1988) 165 CLR 197.
That impression will be formed if the local proceeding are characterised as oppressive, or vexatious, or an abuse of process, recognising, in accordance with Voth, and Brennan J in Oceanic Sun,[7] that such terms carry with them breadth, in the sense that they equate to the proceedings being “seriously and unfairly burdensome, prejudicial or damaging...productive of serious and unjustified trouble and harassment.”[8]
[7] (1988) 165 CLR 197 [93].
[8] (1991) 71 CLR 538 at page 555.
In this case the husband relied heavily on the Mocambique Rule,[9] the consequence of which is that this Court cannot make orders in rem in relation to the real property of the parties located outside of Australia, and cannot exercise jurisdiction in relation to title or possession of land situated abroad.
[9] British South Africa Co v Companhia de Moçambique [1893] AC 602.
It was however not disputed that this Court had the capacity to make in personam orders binding the parties in relation to their conduct in respect of their overseas real property interests, and binding them to deal with them in a manner (at least so far as consistent with the laws as to the holding of property in Country B) to bring a determination as to the allocation of property by this Court into effect.
In claiming that Australia is a clearly inappropriate forum, the husband characterised the in personam power as reliant, merely, on threat, such as threat of being dealt with for contempt, in contrast to the ability to make orders in rem in relation to overseas real property.
Whether this is a matter of significance may vary depending upon the circumstances of an individual case. It may form a powerful consideration where all of the relevant immovable property and the party with title to them are located overseas, and where there was some indication of intent to flout any in personam order to transfer an interest.
However, it does not appear to be a matter of significance in this case where it may be seen that the holder of legal title to the Country B properties is in Australia, invoking the jurisdiction of the court, and where the bulk of the value of the pool of property of the relationship is also located in Australia. Under those circumstances it may be anticipated that the extent of the property in Australia will give significant scope for orders to be crafted that will secure the ends to which the property adjustment power is directed, and the wife’s seeking of orders in this Court will result in effective in personam orders, if required, in respect of dealing with the Country B property.
Such circumstances do not point to a futility of jurisdiction, or to an oppressive, vexatious form of litigation, or to an abuse of process, but rather support the notion that this Court is well placed to quell the whole dispute between the parties.
The criticisms raised by the husband do not mark Australia as a clearly inappropriate forum for the resolution of the property dispute.
Further, the husband’s:
(a)participation in the Australian proceedings;
(b)entry into an agreement to resolve the property dispute; and
(c)previous relinquishing of his challenge to jurisdiction respect of the property proceedings
are demonstrative that Australia is not a clearly inappropriate forum for the property dispute.
Having determined that Australia is not a clearly inappropriate forum, the following question is then one of whether an anti-suit injunction should be granted against the husband in respect of the financial dispute between the parties.
This question is to be determined on consideration of the interests of justice, including whether such is required in order to protect the integrity of the court’s processes once in motion.[10] Consideration must also be given to whether the conduct to be restrained is an unconscionable exercise of the legal rights of the husband.[11] In particular, consideration should be given to whether the pursuit of financial proceedings in the City G District Court would be vexatious or oppressive.[12]
[10] Martin Davies, Andrew Bell, Paul Le Gay Brereton, Michael Douglas, Nygh’s Conflict of Laws in Australia (Lexis Nexis Butterworths, 10th edition, 2019) at 9.9.
[11] Martin Davies, Andrew Bell, Paul Le Gay Brereton, Michael Douglas, Nygh’s Conflict of Laws in Australia (Lexis Nexis Butterworths, 10th edition, 2019) at 9.11.
[12] Martin Davies, Andrew Bell, Paul Le Gay Brereton, Michael Douglas, Nygh’s Conflict of Laws in Australia (Lexis Nexis Butterworths, 10th edition, 2019) at 9.12.
The powers being substantively invoked in Australia, insofar as they relate to the adjustment of the property interests of the parties, require the consideration of all of the property interests of the parties with any adjustment to take into account the totality in determining both whether there should be an adjustment and if so, in what manner. [13]
[13] See Stanford v Stanford (2012) 247 CLR 108.
Parallel litigation regarding a portion of the property of the parties in Country B impermissibly interferes with, or at best delays this Court in discharging those requirements. While the expert evidence indicates that the City G District Court would not take into account or deal with Australian assets, calling upon that court to deal with Country B property collides with the obligation of this Court to take into account all property in exercising the powers of s 79 of the Act.
This is productive of serious and unjustified trouble and harassment.
Further, where the husband has participated in proceedings here, and specifically eschewed his challenge of forum, his proposal to commence proceedings in the City G District Court in relation to the financial issues is vexatious.
The husband should not be permitted to pursue financial litigation in Country B, as he has indicated that he intends to.
These matters are sufficient to justify the granting of an anti-suit injunction against the husband on an interlocutory basis, pending further order.
There is no basis to restrain the wife, or to grant a stay in respect of the proceedings underway in Australia. They are not oppressive, and occur in the context that the husband has actively participated in them and has previously acknowledged the appropriateness of the jurisdiction by his conduct in abandoning his claim otherwise, and in his pursuit of orders here to finalise the financial dispute.
Relief in relation to the parenting proceedings
The husband challenges Australia as the forum within which to determine parenting, seeks a permanent stay in respect of the proceedings here, and an anti-suit injunction to restrain the wife from commencing further parenting proceedings here. This is largely based on his obtaining of orders in Country B in circumstances where the wife consistently challenged the notion that X should be dealt with by that court.
The circumstances of the application lead to some lack of clarity as to the approach to be taken, and principles to be applied.
Where the issue agitated is one of forum and a stay of the local proceedings, B v B [14] identified that while prior to the Family Law Reform Act 1995 (Cth) in accordance with ZP v PS,[15] the best interests of the child formed the paramount consideration for determining forum, since those amendments forum is to be determined on the basis of the “clearly inappropriate forum test” identified in Voth,[16] and Henry v Henry (“Henry”).[17]
[14] (2003) 172 FLR 286.
[15] (1994) 181 CLR 639.
[16] (1991) 71 CLR 538.
[17] (1996) 185 CLR 571.
Assuming for the moment that this is the appropriate approach to the facts of this case, the clear inappropriateness of the proceedings, and the necessity for a stay and anti-suit injunction are reliant, as identified above in relation to the financial proceedings, on a characterisation that the local proceedings are oppressive, or vexatious, or an abuse of process in the broad sense described in Voth.
In determining this issue B v B identified that the character of the underlying proceedings meant that the best interests of the child, whilst not paramount, are a relevant consideration in determining whether the proceedings are oppressive, vexatious of an abuse of process.[18]
[18] (2003) 172 FLR 286 at [42].
In Henry, it was further observed that if the foreign orders will not be recognised locally, such a factor “will ordinarily dispose of any suggestion that the local proceedings should not continue.”[19] Such an observation informs the approach to consideration of whether the local proceedings are oppressive, vexatious or an abuse of process.
[19] Henry v Henry (1996) 185 CLR 571, p.592.
The onus of establishing characteristics to support a conclusion of inappropriateness of forum lies upon the husband, the wife having a prima facie right to the court exercising the jurisdiction that she has regularly invoked in relation to X pursuant to s 69C of the Act.
As identified above, the husband conceded that he could not, at this point establish that Australia was not an appropriate forum for the resolution of the parenting dispute. He accepted that the outcome of his current application to restrain the parenting proceedings was either dismissal or adjournment, contending that it is not presently open, on the evidence before the court, to establish whether the conduct of the proceedings in Australia is in the child’s best interests.
This concession is sufficient to defeat the husband’s application.
However, even absent such a concession, the circumstances of this case do not indicate that the proceedings are oppressive, vexatious or an abuse of process. Those circumstances are that despite the husband obtaining orders in Country B:
(a)The wife has regularly commenced the proceedings in Australia.
(b)The proceedings have been participated in by the husband.
(c)The husband has previously conceded that Australia is not a clearly inappropriate forum.
(d)The wife and child remain in Australia
(e)There are extant orders in place in relation to X.
Further, the City G District Court’s orders are not recognised by this Court and so the only place in which relief may be obtained is in this jurisdiction.
The proceedings should not be considered to be oppressive or vexatious or an abuse of process. Australia is not a clearly inappropriate forum. Neither a stay nor an anti-suite injunction are justified on the basis of forum.
Alternatively, the Full Court in EJK v TSL dealt with circumstances where the wife and child were present in Australia for the commencement of the proceedings, the wife having unilaterally removed the child from Korea.[20] The relief pursued was the return of the child to Korea for proceedings to be conducted there. The court there observed:
…in proceedings involving competing fora when the child is in Australia and the court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or anti suit injunction are not the appropriate principles to be applied, and the court must make such orders as are necessary with the child’s best interests as its paramount consideration…[21]
[20] (2006) 35 Fam LR 559.
[21] EJK v TSL (2006) 35 Fam LR 559, p.560.
That relief required the making of a parenting order, which in turn called for the application of the best interests principles. Accordingly, it was not a matter to be determined on the common law test as to inappropriate forum.
Here, unlike in EJK v TSL, the husband does not seek on either a final or an interlocutory basis relief by means of parenting orders. Despite having obtained an order for the custody of X in Country B, he seeks no relief from this Court, for example, for the return of X to Country B, or in relation to X’s living arrangements in Australia. He merely seeks that this Court not deal with the parenting issues for X.
In contrast the wife seeks relief by means of parenting orders, having already obtained interlocutory relief. That relief, as identified in EJK v TSL requires the application of the best interest principles.[22]
[22] (2006) 35 Fam LR 559.
That is, the exercise of the parenting jurisdiction will be necessary to determine where and with whom X will live, a matter unable to be resolved by the City G District Court given the non-recognition of the orders of that court here. This in turn leads to the conclusion that the conduct of these proceedings by the wife, participated in by the husband, and necessary to determine X’s living arrangements are not such as to warrant a stay or anti-suit injunction to protect the processes of the court. A stay or anti-suit injunction would be contrary to X’s best interests as they would leave his parenting arrangements other than finally resolved.
The relief sought by the husband will be refused on either basis.
The wife seeks corresponding relief by means of an anti-suit injunction against the husband to prevent the pursuit of proceedings concerning X in Country B.
The above identified circumstances are ample to justify such relief. The husband’s pursuit of parenting orders in Country B, in the face of his participation in the parenting proceedings here, where it is ultimately necessary to resolve X’s parenting arrangements here given X’s presence here, are apt to undermine the exercise of jurisdiction in this court. Such steps as taken by the husband in pursuit of parenting orders in the City G District Court are also oppressive, vexatious, and an abuse of process given his participation in the proceedings here. The potential for the husband to take further steps (such as enforcement) in relation to the parenting arrangements for X in Country B would likewise suffer from the same description.
A restraint should be placed on the husband, restraining him from pursuing parenting and related orders in Country B without first obtaining the leave of this Court.
Whilst the husband complains that the wife has lodged an appeal that he should be at liberty to answer in Country B, the wife has indicated that on the giving of this relief she will discontinue the appeal. As a condition of this relief being granted she will be required to do so within 28 days.
Litigation funding
The wife, calling in aid the court’s power to order a payment of costs pursuant to s 117 of the Act, seeks that the husband pay the sum of $150,000 to her lawyers to be applied to her legal costs and disbursements.
The wife seeks, as a series of alternatives, that the funds come from monies held by the husband, or borrowings against a property held in his name in Suburb FF NSW, or from the sale of a property held in her name at C Property in Country B.
The wife’s pursuit of a costs order falls within the context described by Watts J in Salvage & Fosse,[23] being that s 117 provides a general rule that each party will bear their own costs subject to circumstances justifying the making of an order for costs, as identified in Penfold v Penfold.[24] In examining the relevant considerations as identified in s 117(2A) of the Act, a position of relative strength of one party over another, the capacity of the respondent to meet his own costs, and the ability of the applicant to meet her own costs loom large, along with the question of whether the applicant has an arguable case.
[23] (2020) 61 Fam LR 45.
[24] (1980) 144 CLR 311.
In Salvage & Fosse,[25] the plurality of Ryan and Aldridge JJ observed that the driver behind making such an order is the question of whether the applicant:
‘has any real prospects of obtaining justice unless the order sought is made’ (Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s117(2) of the Act, whether in all the circumstances the costs order is just
[25] (2020) 61 Fam LR 45.
This in turn required an assessment of whether the case raised by the applicant “is sufficient, in all the circumstances, as to its nature and prospects, to justify an interim order for costs.”[26]
[26] Salvage & Fosse (2020) 61 Fam LR 45 at [15].
Here it appears that the parties each brought substantial assets into the relationship, being a relationship of twelve years duration during which time they had a child together. Between them they hold significant property exceeding eight million dollars, of which the claim by the wife for costs constitutes a relatively tiny fraction of the pool of property. The overarching circumstances point to the need for an adjustment of property interests and that after such an adjustment the amount sought as costs would fall comfortably within any reasonable claim by the wife, allowing it to be taken into account in any ultimate adjustment.
Further context is given by the parties’ costs notices, the wife’s disclosing that she has incurred almost $100,000 in costs, with an estimated further $100,000 to bring the matter to completion, payment as yet being deferred to be taken from the ultimate property order. The husband’s costs notice identifies that he has incurred approximately $330,000 in costs, with an anticipated further $300,000, met from a loan to him of $511,000 from K Pty Ltd, a corporation in which he has an interest, with the balance to come from income.
There is significant asymmetry in the parties’ legal expenses and manner of funding.
It was conceded that the wife’s income at present (disclosed late, and inadequately identified in the wife’s Financial Statement) exceeds her expenditure. She has, for example, been able to accrue savings and purchase a motor vehicle with cash (a matter also disclosed in a tardy manner by the wife). Her excess occurs in a context where a number of her living expenses are being met by the husband. That excess is not in any sense adequate to meet the legal costs.
While the wife also pointed to the conduct of the husband in the proceedings, specifically in relation to his resiling from their property settlement agreement, and his moves to sell a property in the face of a restraint prohibiting such, neither of these matters carries weight in determining that the particular order sought by the wife should be made.
In terms of capacity, the wealth held in the name of the husband, and his ability to extract from such to meet his legal expenses far exceeds that of the wife. While he identifies the source as a loan from a corporate entity, of which he holds 99 percent share, the loan from the corporate entity indicates, as conceded by the husband in his financial statement, significant underlying value in the company.
In terms of the wife’s capacity, although the husband claimed in his affidavit that properties held by the wife in Country B (other than V Property) are held by the wife for him, his submission was that the wife holds $700,000 of property in Country B in her name, in circumstances where she says she does not wish to return, that she could use to fund her litigation. Implicit to this submission is that the husband was conceding that these could form a source of litigation funding for the wife.
Hence the husband asserts, and the wife concedes that she holds significant property interests in Country B. By her alternative application the wife accepts the availability of C Property to fund her litigation. By his submissions the husband accepts that the wife is entitled to do so to meet her costs. If this was not the case, and if the husband’s submission as to the $700,000 being available to the wife was not so made, there is strong justification for a costs order to be made as sought given the limited resources available to the wife, and the profound imbalance between them.
Given the husband’s implicit concession, in short it appears that both parties have assets available to be either drawn against or disposed of, in order to meet the wife’s costs. The husband has an available draw down on his Suburb FF property of approximately $70,000 and cash holdings by his superannuation fund of approximately $330,000. The wife holds properties in Country B submitted by the husband to be an answer to her application for costs.
The capacity of the wife, which appears to be tacitly accepted by her alternative position of the sale of C Property, means that the justice of the case does not, in the sense identified in Salvage & Fosse,[27] require an order for the husband to pay the wife’s costs in the sum of $150,000.
[27] (2020) 61 Fam LR 45.
At present, however, the wife cannot effect the disposal or encumbering of that property, as orders made by the Senior Judicial Registrar on 3 November 2021 included restraints upon both parties regarding the disposal of assets:
18. The Husband and the Wife are each restrained from selling, transferring, disposing or further encumbering, any real estate that currently stands in their name, noting that the Husband is the registered proprietor of four properties in Australia and the Wife is the Registered Proprietor of twelve properties in [Country B].
Given that the wife specifically sought as a fall-back position that the C Property be disposed of to fund her litigation, that it is held in her name, and that the husband’s submissions were that the wife held property in Country B to fund her litigation, and that in that context he made no submission regarding the disposal of that property, the wife will be placed at liberty to do so.
This step involves no order under the costs power. It does not compel the sale of the property, merely giving to the wife liberty to deal with property, held in her name and asserted by the husband to be available for that purpose, pending the resolution of the proceedings.
Costs
The wife sought an order for indemnity costs. The parties will be at liberty to file submissions as to costs should they pursue such on consideration of this judgment.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 8 December 2022
ANNEXURE 1
ORDERS SOUGHT by applicant wife
As per the wife’s Case Outline Document filed on 9 November 2022, she seeks for Orders 2, 3–6, 8–11 (or in the alternative, 12) and 18 of the Amended Application in a Proceeding (these are listed below).
In addition, upon the making of Orders 3–6 sought in the Amended Application in a Proceeding, she is prepared to agree to an Order restraining her from taking any proceedings in Country B in respect of the property of the parties. She already concedes (by Order 5) that she should be required to withdraw her appeal against the parenting orders which have been made in Country B for X.
Amended Application in a Proceeding filed 31 October 2022
2. That leave be granted for the applicant to rely upon the Affidavit filed in support of this application notwithstanding non-compliance with the relevant rules and practice directions as to the length of Affidavits in interim proceedings.
ANTI-SUIT INJUNCTION:
3. That the husband shall be and is hereby restrained, by way of injunction, from taking any further steps and from doing any act or thing or causing any third-party agent, servant or otherwise from doing any act or thing to commence and/or continue to prosecute proceedings in Country B by way of suit or other claim for relief with respect to:
(a)X (“X”) born 2014.
(b)Any property of the parties to these proceedings.
4. That the husband shall be directed to forthwith do all acts and things and sign all documents necessary so as to apply for:
(a)A stay of each of the proceedings in Country B insofar as they relate to any and/or property of the parties to these proceedings.
5. That upon compliance with Orders 3-4 above, the wife do all such things as are necessary to withdraw any appeal she has lodged in any proceedings in Country B in which the husband and wife are parties and which concern parenting orders in relation to X.
6. That the husband shall be directed to forthwith do all acts and things to file a copy of these Orders in each of the proceedings in Country B insofar as they relate to any child and/or property of the parties to these proceedings.
LITGATION FUNDING:
8. That, within 30 days of the date of these orders and pursuant to s 117 (2A)(a)(c)(d)(f)(g) of the Family Law Act 1975 (Cth) that the husband shall pay or cause to be paid to the Wife’s Solicitors, Hosking & Gosling Legal Trust Account BSB … Acc …82 the sum of $150,000 to be applied towards the wife’s legal costs and disbursements.
9. That the wife’s solicitors keep detailed records of all payments made by the husband pursuant to the above Order and of all legal costs and disbursements paid with the funds provided by the husband.
10. That, unless otherwise agreed between the parties in writing, the husband pay the sum of $150,000 pursuant to Order 8 above at first instance from funds that are in the husband’s sole name, possession or control including but not limited to the husband’s earnings including income that is paid or assigned, together with any cash held/or any funds held and/or redraw funds available in any bank account(s), building societies, credit unions or self-managed super funds.
11. That in the event that sufficient funds are not held or available for redraw in the bank account(s), building societies, credit unions, cash or self-managed super funds then the husband do all acts and things and sign all documents necessary so as to borrow the balance of the sum of $150,000 due pursuant to Order 8 above against the property known as and situate at R Street, Suburb S NSW Lot … (“the Suburb S Property”).
OR IN THE ALTERNATIVE
12. That, in the alternative to Orders 10 and 11 above, leave is granted to the parties and the parties are to do all acts and things and sign all documents necessary to list for sale the Country B property known as C Property located at D Street, E District in F Region in Country B being Certificate Number …/E District, as described in land Measurement Letter dated … Number …/E District/…, Land Plot Identification Number …, in the E District in F Region and to retain the proceeds by way of satisfaction of Order 8 above with any funds in excess of $150,000 to be held on trust on behalf of the parties in the trust account of Hosking & Gosling Legal.
COSTS:
18.That the husband shall pay the wife’s costs of and incidental to this application on an indemnity basis.
ANNEXURE 2
ORDERS SOUGHT by the RESPONDENT HUSBAND
As per the husband’s Response to an Application in a Proceeding filed 8 November 2022, he seeks the following orders:
1. That this Court be declared to be an inappropriate forum for the conduct of property and parenting proceedings commenced by way of the applicant filing an Initiating Application on 22 October 2022 with the Federal Circuit and Family Court of Australia (Division 1) being proceedings CAC2301/2021 (“these proceedings”)
2. That these proceedings be permanently stayed.
3. That the applicant be and is hereby restrained by injunction from commencing proceedings in any Court or Tribunal in the Commonwealth of Australia with respect of parenting and/or property or related matters.
4. That the Applicant wife pay the husband’s costs of and incidental to these proceedings as agreed or as assessed.
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