Cattaneo & Okeke
[2025] FedCFamC1A 43
•17 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cattaneo & Okeke [2025] FedCFamC1A 43
Appeal from: Cattaneo & Cattaneo [2024] FCWA 211 Appeal number: NAA 270 of 2024 File number: PTW 4686 of 2022 Judgment of: CHRISTIE, SCHONELL & BERRY JJ Date of judgment: 17 March 2025 Catchwords: FAMILY LAW – APPEAL – Application for leave to appeal – Where the applicant argues that the primary judged erred in granting a permanent stay of proceedings in the Family Court of Western Australia – Application for leave to appeal dismissed – Appeal dismissed Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act2021 (Cth) ss 28(3)(e)(i), 35, 93A(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17(1)(a)
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02(1)(a)
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Duckworth & Jamison (2015) 52 Fam LR 471; [2014] FamCA 308
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Grabar and Grabar (1976) FLC 90-147
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hsiao v Fazarri (2020) 270 CLR 588
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Metwally v University of Wollongong (1985) 60 ALR 68
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32
Richards and Richards (1976) FLC 90-037
Sweeney & Burniss (2024) FLC 94-205; [2024] FedCFamC1A 145
Taffa & Taffa [2014] FamCAFC 106
Voth v Manildra Flour MillsPty Ltd (1990) 171 CLR 538; [1990] HCA 55
Number of paragraphs: 53 Date of hearing: 26 February 2025 Place: Heard in Perth via audiovisual link, delivered in Sydney Counsel for the Applicant: Mr Hannan with Ms Oakeley Solicitor for the Applicant: Jackson McDonald Counsel for the Respondent: Ms Dellidis SC Solicitor for the Respondent: Pigdon Norgate Family Lawyer ORDERS
NAA 270 of 2024
PTW 4686 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CATTANEO
Applicant
AND: MS OKEKE
Respondent
ORDER MADE BY:
CHRISTIE, SCHONELL & BERRY JJ
DATE OF ORDER:
17 MARCH 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 7 February 2025 is dismissed.
2.The Application in an Appeal filed 17 February 2025 is dismissed.
3.The Application for leave to appeal is refused.
4.Appeal NAA270/2024 is dismissed.
5.The applicant pay the respondent’s costs in the sum of $22,353 within 28 days.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Cattaneo & Okeke has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE, SCHONELL & BERRY JJ:
This is an appeal by the husband from a decision of a judge of the Family Court of Western Australia (“the Australian Court”) granting a permanent stay of proceedings in that Court, because in the exercise of the primary judge’s discretion the Australian Court was a “clearly inappropriate forum”. For the reasons which follow, the appeal will be dismissed.
APPLICATIONS IN AN APPEAL
The applicant seeks leave to adduce further evidence on appeal. That evidence if permitted is relevant to Ground 4A and will be dealt with below.
The respondent seeks leave to adduce further evidence on appeal. The intention of that evidence (should leave be granted) is to bolster the correctness of the primary judge’s decision.
LEAVE TO APPEAL
Consistent with authority, the applicant seeks leave to appeal the decision of the primary judge granting the respondent a stay of proceedings: Federal Circuit and Family Court of Australia Act2021 (Cth) s 28(3)(e)(i); Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02(1)(a); Taffa and Taffa [2014] FamCAFC 106; Sweeney & Burniss (2024) FLC 94-205.
The test to be applied on an application for leave to appeal is that set out by the appellate court in Medlow & Medlow (2016) FLC 93-692 at [57]. It is a conjunctive test. The applicant must demonstrate that:
…in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
(Emphasis in original)
As is discussed below under the various grounds of appeal, we are not persuaded that the decision of the primary judge is attended by sufficient doubt to warrant reconsideration and in circumstance where the parties may resolve their dispute concerning property in the same jurisdiction as their ongoing parenting and child maintenance proceedings, we do not take the view that a failure to grant leave would occasion a substantial injustice.
THE TRIAL
On 16 June 2022 the applicant filed an application in the Australian Court seeking property adjustment orders. In response, on 31 August 2022, the respondent sought dismissal or permanent stay of the proceedings.
The respondent had, prior to 31 August 2022, initiated three proceedings in the Family Court of Country C (“the Country C Court”) arising out of the breakdown of the parties’ marriage.
On 16 October 2020 the respondent commenced parenting proceedings in the Country C Court. Interim orders were made on 24 May 2021.
On 31 May 2021 the respondent commenced child maintenance proceedings in the Country C Court.
On 9 November 2021 the respondent commenced divorce proceedings in the Country C Court in which she sought, as ancillary relief, just and equitable property adjustment orders.
The applicant participated in each proceeding before the Country C Court.
The respondent argued in the Australian Court that the Australian Court was a clearly inappropriate forum as the basis for grant of a permanent stay. The primary judge accepted the respondent’s position and so ordered. The applicant appeals from that stay. It followed that the primary judge declined to make an anti-suit injunction the effect of which would be to restrain the respondent from pursuing her property adjustment proceedings in the Country C Court.
THE APPEAL
The applicant’s Amended Notice of Appeal filed 29 November 2024 sets out seven grounds of appeal. Those which were not formally abandoned at hearing are dealt with below.
In the main they contend asserted errors of fact leading to asserted miscarriage in the exercise of the primary judge’s discretion.
Error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Also, in Norbis v Norbis (1986) 161 CLR 513, at 539 per Brennan J, it was stated:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
Specifically, as regard the power to stay a proceeding on the basis that the Australian Court is a clearly inappropriate forum, Deane J said at 247-248 of Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 that power:
…is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of the particular case and the decision whether power should be exercised are matters for individual judgment and, to a significant extent, matters of impression.
Ground 1
The learned Judge erred in finding that the Wife had commenced property division proceedings in Country C before the Husband commenced PTW 4686/2022. See Reasons [58] & [66]. The learned Judge should have found that the property division aspect of the Country C Divorce Action had not (in substance) yet been commenced. The learned Judge's exercise of discretion in granting the Wife's Stay Application thereby miscarried.
Ground 1 can be characterised as an asserted error of fact. This Court will not interfere with an error of fact on appeal if the finding was reasonably open on the evidence: Edwards v Noble (1971) 125 CLR 296; Gronow v Gronow (1979) 144 CLR 513; Richards and Richards (1976) FLC 90-037; Grabar and Grabar (1976) FLC 90-147.
At [58] the primary judge found:
The wife commenced proceedings in relation to property first.
When the respondent filed her Statement of Claim for Divorce on 9 November 2021 she invoked the jurisdiction of the Court to undertake a “just and equitable division of the matrimonial assets”.
The applicant’s argument is that because the Country C Court can exercise its property adjustment jurisdiction “upon or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage” there are effectively two stages to the application and the parties in this case had commenced stage one, but their progression to stage two, where ancillary relief including property adjustment orders may be made, was contingent on completion of stage one. The primary judge acknowledged this at [40].
While the ancillary relief sought by the respondent was contingent upon the completion of the first stage it remains accurate to acknowledge that the respondent had invoked the Court’s jurisdiction, including for ancillary relief in Country C, significantly prior to the commencement of the proceedings before the Australian Court, making the primary judge’s factual conclusion unassailable. There is no merit in ground 1.
Ground 2
The learned Judge erred in finding that the Husband had relevantly participated in the property division aspect of the Country C Divorce Action and thereby submitted to the jurisdiction of the Country C Family Court. See Reasons [59] & [66]. The learned Judge's exercise of discretion in granting the Wife's Stay Application thereby miscarried.
Ground 2 also asserts an error of fact. In the primary judge’s reasons at [59] he said:
The husband acceded to the jurisdiction of the [Country C] Court, sought orders with respect to the adjustment of property, actively participated in the [Country C] proceedings and, given the agreement made in May 2022, implicitly accepted that the [Country C] Court had the power to justly and equitably alter their property interests.
It is difficult to understand how the above conclusions are in error. The applicant’s Summary of Argument constructs the complaint as being not only error of fact but also application of wrong principle. It is submitted by the applicant that it would be erroneous for the primary judge to have regard to the applicant having submitted to the jurisdiction of the Country C Court since the applicant’s conduct could not be considered as an unequivocal and unambiguous waiver of his right to contest the jurisdiction of the Australian Court.
The primary judge accurately concluded that the applicant had voluntarily participated in litigation in the Country C Court, effectively conceding jurisdiction. The applicant’s counsel acknowledged as much at the hearing before the primary judge. Had the primary judge found that this alone was sufficient to grant the relief sought then it may have constituted wrong principle: Duckworth & Jamison (2015) 52 Fam LR 471 at [74], [79]. This was one of the matters to which the primary judge had regard when reaching the overall conclusion. There was no application of wrong principle.
Ground 2A was abandoned at hearing.
Ground 3 was abandoned during oral argument.
Ground 3A
The learned judge concluded that the WA Family Court is unable to resolve the entirety of the matrimonial dispute between H&W “given that parenting and child maintenance matters will be dealt with by [Country C's Family Court system]”. See Reasons [62]. In reaching that conclusion the learned judge erred in fact. Having regard to:
(i) paras 30 – 36 of Ms B’s report dated 16 August 2023; and
(ii) the Wife’s great wealth
The learned trial judge should have found there was no sensible prospect that if property adjustment orders were made in the WA Family Court under section 79 of the Family Law Act 1975 (Cth) such orders would impact on the Country C Child Maintenance Proceedings. The learned Judge’s exercise of discretion in granting the Wife’s Stay Application thereby miscarried.
The proceedings concerning child maintenance in the Country C Court have not concluded by the making of a final order. The applicant’s contention is that the evidence before the primary judge unequivocally established that those proceedings would not require a final hearing. That submission was not, as the respondent identifies, made to the primary judge. It is not open to advance it on appeal. It is also less than plain that such a submission could have been made in reliance upon the evidence before the primary judge.
In Metwally v University of Wollongong (1985) 60 ALR 68 the High Court said at 71:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
In Coulton v Holcombe (1986) 162 CLR 1 Gibbs CJ, Wilson, Brennan and Dawson JJ said at 7:
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
The ground lacks merit.
Ground 4
The learned Judge erred in finding that, if PTW 4686/2022 continues, the Wife will have to take the Children out of school in Country C and bring the Children with the Wife to Perth in order to properly participate in PTW 4686/2022. See Reasons [57]. The learned Judge should have found that the Wife has sufficient financial resources to be able to properly participate in PTW 4686/2022 by:
using remote access technology to participate from Country C in respect of suitable pre-trial matters; and
otherwise, travelling to Perth without the Children, who could remain in Country C in the care of the Wife's domestic helper.
The learned Judge's exercise of discretion in granting the Wife's Stay Application thereby miscarried.
Ground 4A
The Wife sent emails to the Husband on 5 September 2023, 8 October 2023, 26 April 2024 and 21 September 2024, which emails demonstrate that the wife travels outside Country C for work purposes and is able to arrange alternative care for the children during such travels. Such evidence is deemed contrary to the learned judge’s finding of fact that if PTW 4686 2022 continues the Wife will have to take the Children out of school in Country C and bring the Children with the Wife to Perth in order to properly participate in PTW 4686/2022. See Reasons [57]. The learned Judge’s exercise of discretion in granting the Wife's Stay Application thereby miscarried.
It is appropriate to deal with Grounds 4 and 4A together since they do not disclose distinct complaints.
The finding upon which these grounds are based is contained at [57] and reads as follows:
The parties have no family in [Country C]. The wife has no family in Western Australia. For any trial in Western Australia, it will be necessary to take the children out of school and pay for their travel and accommodation.
The applicant says that the primary judge in finding that disruption to the children’s schooling was “necessary” was in error.
In order to prosecute this ground, the applicant would need to rely on evidence which was not before the primary judge and is the subject of his Application in an Appeal to adduce further evidence. All of the evidence sought to be adduced post-dated the hearing before the primary judge.
The application to adduce further evidence is opposed.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides an unfettered discretion to admit further evidence on appeal. However, case law (albeit relating to the predecessor of s 35, s 93A(2)) developed non-exhaustive considerations which are relevant to the determination of whether to receive further evidence.
The High Court in Hsiao v Fazarri (2020) 270 CLR 588 [43], referencing CDJ v VAJ (1998) 197 CLR 172 at 202, observed “[t]he discretion that s 93A(2) confers on the Full Court to receive further evidence on an appeal exists to serve the demands of justice”. In CDJ v VAJ, McHugh, Gummow and Callinan JJ set out principles relevant to the exercise of the discretion:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
…
148. … The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
Even if the evidence had been before the primary judge, he would nonetheless have been entitled to find that the respondent would be required to either bring the children with her to attend a trial or leave them in the care of an employee. This is hardly the type of evidence which would inevitably have led to a different decision. The Application in an Appeal will be dismissed given the evidence sought to be adduced would not necessarily demonstrate error.
Ground 5
The learned Judge erred in finding that it is likely that the H&W will have to engage lawyers in both Australia and Country C if the PTW 4686/2022 is permitted to continue and thereby incur higher legal costs. See Reasons [64] & [66]. The learned Judge's exercise of discretion in granting the Wife’s Stay Application thereby miscarried.
The primary judge at [64] and [66] referenced duplication of legal fees if proceedings were to continue in both the Country C Court and the Australian Court. The factual finding was available. The applicant’s complaint is that it had no role to play in the determining that Australia was a clearly inappropriate forum.
Consistent with the observations in Sweeney & Burniss [2024] (2024) FLC 94-205 at [34] – [35] we consider that the primary judge having regard to the existence of ongoing causes of action in the Country C Court (and consequent duplication of legal expenses) fell within the matters relevant to his exercise of jurisdiction as being matters informing the conclusion that continuation of the Australian proceedings would be oppressive and/or vexatious.
The ground fails.
Ground 6
The learned Judge concluded that the WA Family Court is unable to resolve the entirely of the matrimonial dispute between the H&W "given that parenting and child maintenance matters will be dealt with by [Country C's Family Court system]". See Reasons [62]. Even if that conclusion was correct as a matter of fact (which the Husband denies: see ground 3 above), the learned Judge nonetheless erred in principle because such a conclusion does not thereby mean that the WA Family Court is a clearly inappropriate forum in which to seek property orders under section 79 of the Family Law Act 1975 (Cth). The learned Judge's exercise of discretion in granting the Wife's Stay Application thereby miscarried.
The primary judge expressed the following conclusion at [62]:
An alteration of the parties' property by the Family Court of Western Australia will not resolve the entire matrimonial dispute between the parties given that parenting and child maintenance matters will be dealt with by the [Country C] Court.
It is not plain that there has been any error of fact (a matter tacitly conceded when the applicant abandoned ground 3). The applicant’s assertion that he “did not anticipate further litigation” is no answer to the absence of a final order in either the parenting litigation or the child maintenance litigation. The position remained that in considering whether the Australian Court was a clearly inappropriate forum, the primary judge was entitled to have regard to the existence of other ongoing litigation arising out of the breakdown of the parties’ marriage.
The contentions relied upon to advance this ground have also been the subject of discussion under Ground 5 above and are not made out.
Ground 7
The learned Judge's discretionary decision that PTW 4686/2022 should be permanently stayed, was based in significant part upon the Wife's lack of connection to Western Australia. See Reasons [54] & [66]. The Wife's lack of connection to Western Australia was an irrelevant consideration, whereas the Wife's connection to Australia was a highly relevant consideration, to which the learned Judge failed to have proper regard. The learned Judge's exercise of discretion in granting the Wife's Stay Application thereby miscarried.
As the respondent has submitted, the application of the respondent was to stay proceedings in the Family Court of Western Australia. It is difficult in those circumstances to understand why there could be any complaint about the primary judge having found that the respondent lacked a connection to Western Australia. The clearly inappropriate forum contended for by the respondent was the Family Court of Western Australia where the litigation would have taken place if the stay were not granted. The ground is misconceived.
Ground 8
The learned Judge’s decision to permanently stay PTW 4686/2022 on forum non conveniens grounds can only be explained by the learned Judge in substance applying the “more appropriate” forum test rather than the “clearly inappropriate” forum test, despite his Honour (correctly) stating that the latter test applies in Australia on applications such as the Wife’s Stay Application. The learned Judge’s exercise of discretion in granting the Wife’s Stay Application thereby miscarried.
As the ground itself identifies, the primary judge identified the correct test. The ground contends the primary judge then failed to apply the correct test.
What was required of the primary judge was that, having regard to the circumstances of these parties involved in litigation in two places, the reasons for judgment address the question of why Australia was a clearly inappropriate forum. That occurred and there is consequently no merit to this ground.
The High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565 said:
…it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken into account the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (ie “clearly inappropriate forum”) grounds.
That the primary judge did so is clear. No submission on behalf of the applicant identified any aspect of the reasons as illustrative of application of wrong principle. Ground 8 fails.
While “Ground 9” in the Amended Notice of Appeal is expressed as a ground of appeal it is little more than a request that should the appeal be allowed the appellate court re-exercise the discretion.
As foreshadowed, we have found no merit in any of the proposed grounds and propose to dismiss the application for leave to appeal and accordingly, the appeal.
COSTS
The applicant has been wholly unsuccessful on the appeal. It is appropriate that the respondent recover some of the costs of the appeal. Counsel for the applicant properly acknowledged that if the appeal was dismissed it would be difficult to resist the making of an orders for costs in the respondent’s favour. Both parties agreed that it was appropriate to fix costs in the appeal as opposed to engaging in assessment.
The respondent sought party/party costs at scale in the sum of $33,076. The applicant submitted that in the usual course the costs of the applicant would exceed those of the respondent. We agree. The respondent tacitly acknowledged (without consenting to) the appropriateness of fixing the respondent’s costs in a sum equivalent to those which would have been sought by the applicant. The applicant conceded that the respondent had engaged senior counsel. Allowing for dismissal of both parties’ applications in an appeal and seeking not to protract the litigation, we accept that, in this case it would be appropriate that the respondent’s costs be fixed. Accordingly, and in reliance on r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), we will order that the applicant pay the respondent’s costs in the sum of $22,353.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Christie, Schonell and Berry. Associate:
Dated: 17 March 2025
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