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: 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…
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Details
- AGLC
- Bestari & Henley [2022] FedCFamC1F 970
- Case
- [2022] FedCFamC1F 970
- Decision Date
CaseChat Overview and Summary
The case before the court involves the wife, Ms Bestari, and the husband, Mr Henley, who were married and have a child, X. The dispute centres on the determination of their separation date, property division, spousal maintenance, and parenting arrangements. The matter was heard in the Family Court of Australia. The court was tasked with resolving the conflicting accounts of the parties regarding their separation date, determining the division of their assets and liabilities, and making orders concerning the care and control of their child.
The legal issues the court had to address included establishing the date of separation, determining the value and division of the parties' assets and liabilities, and making orders for parenting, spousal maintenance, and other related matters. The wife argued that the parties were separated from 16 July 2021, while the husband claimed separation occurred on 14 October 2021. The court needed to evaluate the evidence and decide on the appropriate date of separation, which would have significant implications for the division of assets and liabilities. Additionally, the court had to consider the best interests of the child in making parenting orders.
The court considered the evidence presented by both parties, including affidavits, financial statements, and expert testimonies. The court found that the parties were separated on 14 October 2021, when the wife and child left the shared property and obtained interim Apprehended Violence Orders. The court also determined that the wife and husband should each retain their respective properties in Australia and Country B, with specific liabilities allocated to each party. The court ordered spousal maintenance to be paid by the husband to the wife and made detailed parenting orders regarding the care and control of X. The court's decision balanced the financial circumstances of both parties and the welfare of the child.
The court made orders that the husband pay spousal maintenance to the wife and that specific properties and liabilities be allocated to each party. The court also made detailed parenting orders for the care and control of X, including the primary residence and contact arrangements. The orders reflect the court's consideration of the financial and personal circumstances of the parties and the best interests of the child.
The legal issues the court had to address included establishing the date of separation, determining the value and division of the parties' assets and liabilities, and making orders for parenting, spousal maintenance, and other related matters. The wife argued that the parties were separated from 16 July 2021, while the husband claimed separation occurred on 14 October 2021. The court needed to evaluate the evidence and decide on the appropriate date of separation, which would have significant implications for the division of assets and liabilities. Additionally, the court had to consider the best interests of the child in making parenting orders.
The court considered the evidence presented by both parties, including affidavits, financial statements, and expert testimonies. The court found that the parties were separated on 14 October 2021, when the wife and child left the shared property and obtained interim Apprehended Violence Orders. The court also determined that the wife and husband should each retain their respective properties in Australia and Country B, with specific liabilities allocated to each party. The court ordered spousal maintenance to be paid by the husband to the wife and made detailed parenting orders regarding the care and control of X. The court's decision balanced the financial circumstances of both parties and the welfare of the child.
The court made orders that the husband pay spousal maintenance to the wife and that specific properties and liabilities be allocated to each party. The court also made detailed parenting orders for the care and control of X, including the primary residence and contact arrangements. The orders reflect the court's consideration of the financial and personal circumstances of the parties and the best interests of the child.
Orders
Orders of the court
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Background
Background to the litigation
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 HISTORYApplicant 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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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