Bhasin & Bhasin

Case [2023] FedCFamC1F 96

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bhasin & Bhasin [2023] FedCFamC1F 96

File number: MLC 6473 of 2021
Judgment of: CARTER J
Date of judgment: 24 February 2023
Catchwords: FAMILY LAW – JURISDICTION – appropriate forum – where proceedings on foot in Australia and Country J – where Australian proceedings commenced first in relation to financial matters – where respondent subject to prior anti-suit injunction relating to property proceedings in Country J – where the father has commenced proceedings in Country J in relation to parenting and other non-financial matters – where child and mother reside in Australia – where father resides in Country J – child’s best interests. 
Legislation:

Family Law Act 1975 (Cth) ss 60CA, 68B, 90C, 114

Family Law Regulations 1984 (Cth) Schedule 1A, rr 14, 23
Cases cited:

EJK & TSL (2006) FLC 93-287

Henry v Henry (1996) FLC 92-685

Kent & Kent [2017] FamCAFC 157

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

Pascarl & Oxley (2013) FLC 93-536

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

Zanda & Zanda [2014] FamCAFC 173

ZP v PS (1994) 181 CLR 639
Division: Division 1 First Instance
Number of paragraphs: 106
Date of last submissions: 20 February 2023
Date of hearing: 20 February 2023
Place: Melbourne
Counsel for the Applicant: Mr Johannes Schmidt
Solicitor for the Applicant: Lander & Rogers
Counsel for the Respondent: Mr Brian Kelly
Solicitor for the Respondent: Croy Legal

ORDERS

MLC 6473 of 2021

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

MS BHASIN

Applicant
AND:

MR BHASIN

Respondent

order made by:

CARTER J

DATE OF ORDER:

24 February 2023

THE COURT ORDERS THAT:

Parenting proceedings anti-suit injunction

1.The husband immediately withdraw and/or discontinue all proceedings issued by him through petition filed in the Family Court, H City District, H City, Country J with file number … insofar as those proceedings are in relation to X born 2013 and thereafter be restrained by injunction personally, by his servants and/or agents from issuing and/or causing the commencement of any proceedings pertaining to parenting, in any jurisdiction other than Australia, including in Country J.

Adjournment

2.The wife’s Application in a Proceeding filed 8 February 2023 be otherwise adjourned to an interim defended hearing before a Senior Judicial Registrar on 14 March 2023 at 10.00 am.

File and serve material

3.Not less than seven days prior to the interim defended hearing, the husband file and serve a Further Amended Response to an Application in a Proceeding together with an affidavit in support.

4.On or before 10 March 2023, the husband file and serve a statement of claim, in relation to his assertion that the Financial Agreement is not binding and/or should be set aside.

5.The wife file and serve any defence within 14 days of being served with the husband’s statement of claim.

Costs application

6.In the event either party purses an application for costs in relation to the forum non…

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Details
AGLC
Bhasin & Bhasin [2023] FedCFamC1F 96
Case
[2023] FedCFamC1F 96
Decision Date

CaseChat Overview and Summary

In the matter of Bhasin & Bhasin, the wife, a resident of Suburb D in Australia, commenced proceedings against her husband in the Federal Circuit and Family Court of Australia, seeking financial orders and spousal maintenance. The husband, a professional sportsman residing in Country J, responded by filing a Response to the Initiating Application, in which he consented to the jurisdiction of the Court and sought interim orders including the distribution of proceeds from the sale of a property in Suburb C and spousal maintenance for the wife. The primary legal issues the Court had to resolve were whether Australia was an inappropriate forum for determining parenting matters and, if not, whether an anti-suit injunction should be granted against the husband's concurrent application for permanent custody of their child, X, in Country J.

The Court found that Australia was not a clearly inappropriate forum for determining parenting matters. The Court held that X, who was born and has lived most of his life in Australia, is significantly and deeply connected to his life in Australia. The Court also noted that most witnesses involved in X’s life and care reside in Australia, making it easier for the Court to be properly and fully informed about X. Therefore, the Court concluded that X’s best interests would be met by an Australian court determining the dispute between the parents regarding where X should live, with whom he should live, what time he should spend with the other parent, and all other matters connected to his care, welfare and development. Consequently, the Court decided that it was not appropriate to stay the parenting proceedings brought by the wife in the Australian court.

Further, the Court considered whether an anti-suit injunction should be granted against the husband's concurrent application for permanent custody of X in Country J. The Court noted that if it had formed the view that the parenting aspect of the proceedings in the Australian court ought to be stayed, the husband sought an anti-suit injunction against the wife. The Court held that it would be oppressive and vexatious in the relevant sense for the husband to be permitted to pursue parenting matters in the Family Court in Country J in circumstances where the Australian court had declined to stay the parenting proceedings. The Court was concerned that if the husband's continuation of that application for permanent custody of X was not enjoined, it could be construed as a challenge to the integrity of the proceedings before the Australian court.

ORDERS TO BE MADE
The Court decided that the parenting proceedings brought by the wife in the Australian court should not be stayed. Furthermore, the Court granted an anti-suit injunction against the husband's concurrent application for permanent custody of X in Country J.

Orders

Orders of the court

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Background

Background to the litigation

It is not acceptable that documents are filed late and not in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). However, given the expenses already incurred by both parties, and to avoid the matter being adjourned, the husband was permitted to be sworn in and adopt the contents of his affidavit as true and correct. I note further that the affidavit contains many matters that have no relevance to the orders sought by either party in the interim applications currently before the court. BACKGROUND The wife is 45 years old. She lives in Suburb D with the parties’ child X and her two daughters from a previous relationship. They are 22 and 18 years old. The wife is engaged in full time home duties. The husband is 37 years old. He is a professional sportsman, playing professional sport for Country J. According to his Financial Statement filed on 7 August 2021, he then earned in excess of $2 million dollars per annum. The parties married in late 2012 in City K, Country J. They separated in August 2020. During the relationship, the wife lived primarily in Australia. The husband said the wife had promised at the time of marriage that she would move to Country J, but she then did not do so. It is common ground that during the parties’ marriage the husband travelled to Australia at least twice per year to spend time with X and the wife. It is also common ground that for periods of time the wife travelled with X to see the husband, in Country J, or wherever he was on tour around the world, for about one to two months each year. I understand that for around eight months in 2020 the wife and X were in Country J, with the husband. However, following the parties’ separation in August 2020, the wife and X returned to Australia and have remained living here since that time. During the course of the marriage, the parties purchased a property in Suburb G, which was subsequently sold in 2018. In 2017 the parties purchased some land in Suburb C and in 2019 they purchased another home in Suburb D in which X and the wife continue to reside. The husband also has property interests in Country J. The vacant land in Suburb C has now been sold. It was sold for over $2,400,000. Proceedings in this court were commenced by the wife on 11 June 2021. At that time the wife sought financial orders only – including spousal maintenance. She filed an Application in a Proceeding on 3 August 2021 seeking further financial relief, including urgent child maintenance or a child support departure order. The husband filed a Response to the Initiating Application on 7 August 2021. At that time it is apparent that he consented to the jurisdiction of this court. He sought to be excused from particularising the final orders he sought, but proposed a raft of interim orders including distribution of the proceeds of sale of the Suburb C land and that the wife occupy the Suburb D property with the husband to pay the mortgage encumbering same. He further sought interim orders to pay the wife spousal maintenance, child support and school fees for X. He proposed further orders with respect to valuations and discovery.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There were no meaningful submissions made on this point. Other considerations I note further the concept that resolution of matters between parties following the breakdown of a marriage is to be viewed as a single controversy arising out of the same substratum of fact. The proceedings regarding financial matters are well advanced. The husband consented to this court determining those matters. In those circumstances it could not be said that adding parenting matters to the issues for determination by this court could be regarded as vexatious or oppressive in the relevant sense. Rather, it seems far more practical and less burdensome for this court to hear all matters requiring determination, save for the discrete applications for divorce, and denigration which the parties agree will be determined in Country J. Best interests In relation to X’s best interests, I note he was born in Australia. He is an Australian citizen. He lives here and attends school here. He has lived most of his life here. He has spent some time in Country J, including a number of months in 2020, but it is plain he is significantly and deeply connected to his life here in Australia. His mother who has been his primary carer throughout his life lives here, as do his older sisters and his maternal grandparents. It is likely most witnesses involved in X’s life and care reside in Australia. That makes it easier for this court to be properly and fully informed about X and therefore well placed to make decisions regarding arrangements for his care. If my consideration in determining the competing “fora” dispute is limited only to X’s best interests, these matters make it plain that a stay of proceedings in this court would not be appropriate. If the relevant principles to be applied in relation to the application for the stay are those applicable at common law, then these considerations also provide significant additional weight in considering whether Australia is a clearly inappropriate forum. ORDERS TO BE MADE Taking all these matters into account, I am satisfied both that:(a)it could not be said that Australia is a clearly inappropriate forum to determine parenting matters; and(b)X’s best interests will be met by an Australian court determining the dispute between the parents as to where he should live, with whom he should live, what time he should spend with the other parent, and all other matters connected to his care, welfare and development. Accordingly, I am not satisfied it is appropriate for the parenting proceedings brought by the wife in this court should be stayed. I now consider whether I should make the anti-suit injunction sought by the wife. I note that had I formed the view that the parenting aspect of the proceedings in this court ought be stayed, the husband sought an anti-suit injunction against the wife. It seems to me it would be oppressive and vexatious in the relevant sense for the husband to be permitted to pursue parenting matters in the Family Court in H City in circumstances where this court has declined to stay the parenting proceedings. If that part of the husband’s application before the court in Country J is not enjoined, I am concerned that the husband’s continuation of that application for permanent custody of X could be construed as a challenge to the integrity of the proceedings before this court.