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Case [2015] FamCA 1193 24 December 2015

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FAMILY COURT OF AUSTRALIA

BILLS & BILLS

[2015] FamCA 1193

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – where the parties are Australian citizens living and working in the United Kingdom – where the husband has issued parenting proceedings in the United Kingdom and financial proceedings in Australia – where the wife has subsequently issued divorce and financial proceedings in the United Kingdom – where the wife issues an Application in a Case for the Australian financial proceedings to be permanently stayed – “clearly inappropriate forum” test applied – final orders that the husband’s application for financial orders in Australia be permanently stayed.

Family Law Act 1975 (Cth)
Family Law Act 1996 (UK)
Foreign Judgments Act 1991 (Cth)

British South Africa Co v Companhia de Mozambique [1983] AC 602
Chen & Tan [2012] FamCA 225
Hamlin v Hamlin [1986] Fam 11
Henry v Henry (1996) 185 CLR 571
Kemeny & Kemeny [1998] FamCA 34
Khademollah and Khademollah [2000] FamCA 1045
Skinner & Alfonso-Skinner [2010] FamCA 329
Teo & Guan [2015] FamCAFC 94
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
Yeo & Huy (No2) [2012] FamCA 541

APPLICANT:

Ms Bills

RESPONDENT:

Mr Bills

FILE NUMBER:

MLC

6606

2015

DATE DELIVERED:

24 December 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

1 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glass

SOLICITOR FOR THE APPLICANT:

Nicholes Family Law

COUNSEL FOR THE RESPONDENT:

Mr Smith

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal

Orders

The application of the husband seeking orders under Part VIII of the Family Law Act 1975 (Cth) be permanently stayed.
Any submissions with respect to any application for costs of and incidental to either the wife’s application in a case filed 30 October 2015 or the husband’s response thereto filed 13 November 2015 be in writing and be forwarded by email to the Associate to Justice Macmillan and contemporaneously served upon the other party by 4.00 pm on 22 January 2016.
Any submissions in reply be in writing and be forwarded by email to the Associate to Justice Macmillan and contemporaneously served upon the other party by 4.00 pm on 5 February 2016.
In the event that neither party makes submissions in writing in support of an application for costs in accordance with paragraph 2 of these orders each party shall bear their own costs of and incidental to the application for a stay.

IT IS CERTIFIED THAT

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bills & Bills has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6606 of 2015

Ms Bills

Applicant

And

Mr Bills

Respondent

REASONS FOR JUDGMENT

On 14 July 2015 the husband in this case filed an Initiating Application in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BILLS & BILLS [2015] FamCA 1193
Case: [2015] FamCA 1193
Decision Date: 24 December 2015

CaseChat Overview and Summary

The husband sought a permanent stay of proceedings concerning property adjustment orders under Part VIII of the *Family Law Act 1975* (Cth). The wife had filed an application on 30 October 2015, to which the husband responded on 13 November 2015. The matter came before Macmillan J.

The central legal issue before the court was whether the husband's application for a permanent stay of the property adjustment proceedings should be granted. This required the court to consider the circumstances under which such a drastic procedural remedy would be appropriate.

Macmillan J granted the husband's application for a permanent stay. While the specific reasoning for the stay is not detailed in the provided text, the order itself indicates that the court found sufficient grounds to permanently halt the property adjustment proceedings initiated by the wife. The court then made orders regarding written submissions on costs, setting deadlines for initial submissions and replies, and stipulating that if no cost submissions were made, each party would bear their own costs of the stay application. The court also certified that the matter reasonably required the attendance of counsel.

Orders

Orders of the court

The application of the husband seeking orders under Part VIII of the Family Law Act 1975 (Cth) be permanently stayed.

Any submissions with respect to any application for costs of and incidental to either the wife’s application in a case filed 30 October 2015 or the husband’s response thereto filed 13 November 2015 be in writing and be forwarded by email to the Associate to Justice Macmillan and contemporaneously served upon the other party by 4.00 pm on 22 January 2016.

Any submissions in reply be in writing and be forwarded by email to the Associate to Justice Macmillan and contemporaneously served upon the other party by 4.00 pm on 5 February 2016.

In the event that neither party makes submissions in writing in support of an application for costs in accordance with paragraph 2 of these orders each party shall bear their own costs of and incidental to the application for a stay.

IT IS CERTIFIED THAT

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

BILLS & BILLS [2015] FamCA 1193

Most Recent Citation

SCARFFE & OBANNON [2020] FamCA 77

Cases Citing This Decision

SCARFFE & OBANNON [2020] FamCA 77
Citation 1 (Para 3)

…Hillam & Barret . [99] (2010) 43 Fam LR 531. [100] [2012] FamCA 541. [101] [2014] FamCA 12. [102] [2014] FamCA 396. [103] (2016) 55 Fam LR 329. [104] [2015] FamCA 1193. [105] [2017] FamCAFC 157.…

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Cases Cited

Teo & Guan [2015] FamCAFC 94
Citation 1 (Para 9)

…The Full Court in Teo & Guan [2015] FamCAFC 94 at [134] quoted with approval a passage from an article by Dr Anthony Dickey QC, ‘Orders in respect of foreign property under section 79’ (1993) 67 Australian Law Journal at [538]: It now seems clear, however, that this jurisdictional limitation does not apply to procee…
Chen & Tan [2012] FamCA 225
Citation 2 (Para 8)

…The Mozambique Rule has previously been held not to apply to proceedings for property adjustments by authorities in this Court. In Chen & Tan [2012] FamCA 225, Kent J set out the two propositions in the Mozambique rule and added at [17]: ...a Court exercising jurisdiction under the Act in family law exercises juris…
Yeo & Huy (No 2) [2012] FamCA 541
Citation 3 (Para 6)

…And as Murphy J observed in Yeo & Huy (No 2) [2012] FamCA 541 (‘ Yeo ’) at [33]-[34]: … what emerges is that there is nothing as a matter of principle that prevents the bifurcation of proceedings emanating from a single controversy with part of the proceedings being heard in one country and another part in another…
Skinner & Alfonso-Skinner [2010] FamCA 329
Citation 4 (Para 1)

…In Skinner & Alfonso-Skinner [2010] FamCA 329 (‘ Skinnner ’), Murphy J at [69] summarised what he described as the “non-exhaustive list of matters relevant to the application of the “clearly inappropriate forum test” identified in Henry as follows: (a)whether each court will recognise the other’s orders and decrees…
Khademollah & Khademollah [2000] FamCA 1045
Citation 5 (Para 6)

…nsel for the wife submitted that this was not fatal to her application, referring me to the decision of the Full Court in Khademollah and Khademollah [2000] FamCA 1045 (‘ Khademollah ”) where the Full Court said at [157], that “..absent any expert evidence, as a general rule there is a presumption that the law of a…
Henry v Henry [1996] HCA 51
Citation 6 (Para 3)

…In Henry v Henry (1996) 185 CLR 571 (‘ Henry ’), the High Court held that the “clearly inappropriate forum” test in Voth is the test the court should apply in proceedings in this Court for a stay of proceedings. The High Court in Henry identified the following principles: (a)the party seeking a stay of Australian pro…
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
Citation 7 (Para 2)

…As stated by the High Court in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 (‘ Voth ’), a party who has properly instituted proceedings in a court of competent jurisdiction in Australia has a prima facie right to have those proceedings determined by that Australian court. The test that governs whether the c…
[1998] FAMCA 34 [1998] FAMCA 34
Citation 8 (Para 11)

…e” in the notion that parties might be required to conduct parenting matters in one country and financial disputes in another ( Kemeny & Kemeny [1998] FamCA 34 (‘ Kemeny ’) at [5.3.7]). However that is not necessarily the situation in this case. As previously discussed, in the event that the Court accepted the hus…
[1983] AC 602 [1983] AC 602
Citation 9 (Para 7)

…The Mozambique Rule derives two propositions from British South Africa Co v Companhia de Mozambique [1983] AC 602, summarised in Nygh, P, Conflict of Laws in Australia (2010, 8 th ed, Lexis Nexis Butterworths): ·a local court will not exercise jurisdiction in respect of the title to, or possession of, land situa…

Legislation Cited

Family Law Act 1975 (Cth)
1 mention (from Para 1)
Family Law Act 1996 (c. 27)
1 mention (from Para 6)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)
Foreign Judgments Act 1991 (Cth)
1 mention (from Para 5)
Smith v The Queen
1 mention (from Para 6)