Celano and Natoli

[2012] FamCA 178

FAMILY COURT OF AUSTRALIA

CELANO & NATOLI [2012] FamCA 178

FAMILY LAW - PRACTICE AND PROCEDURE – Forum in which property settlement, spousal maintenance and child support matters should be heard and determined – Forums non conveniens – anti-suit injunctions sought to restrain party commencing and/or continuing in foreign forum – stay application to restrain party continuing proceedings in Family Court of Australia pending finalisation of proceedings in foreign forum.

Gilmore & Gilmore (1993) FLC 92-353
Henry v Henry (1996) 185 CLR 571
Navarro & Jurado [2010] FamCAFC 210
Oceanic Sun Line Shipping Co Inc & Fay (1988) 165 CLR 197
Spiliada Maritime Corporation v Cansulex Ltd [1986] 3 All ER 843
Voth & Manildra Flour Mills Pty Ltd [1990] HCA 55, (1990) 171 CLR 538

Family Law Act 1975 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)

APPLICANT: Mr Celano

RESPONDENT Ms Natoli

FILE NUMBER: PAC 1766 of 2011

DATE DELIVERED: 20 February 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 17 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT:

Mr Gittoes-Caesar

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Berman

SOLICITOR FOR THE RESPONDENT Ms Ferdinandy
Angela Ferdinandy Solicitor

Orders

1. That the respondent wife be restrained from agitating any relief, whether presently commenced or intended to be commenced in relation to issues of: 

   a)division of the parties’ matrimonial property;

   b)spousal maintenance; and

   c)child support for the parties’ child, V born … July 1998.

2. That the wife’s application contained in her response to an application in a case filed 18 November 2011 is hereby dismissed.

3. That I note at the conclusion of the hearing, counsel for the husband and senior counsel for the wife, both indicated to me that whatever the outcome of these proceedings by virtue of my reasons and orders there would be no application made for costs against the other party.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1766 of 2011

Mr Celano

Applicant Husband

And

Ms Natoli

Respondent Wife

REASONS FOR JUDGMENT

INTRODUCTION

1. In this matter the parties are in dispute as to a number of issues, particularly property settlement, spousal maintenance and child support.  The question for me is where those issues are to be determined.  The parties have reached agreement as to parenting issues concerning their only child and Final Orders have been made by consent to finalise that aspect of the matter.  Further, the parties have agreed that the property proceedings on foot are to be heard in Australia.  From everything that has passed in argument and discussion, it would appear common ground that the wife concedes that wherever the remaining issues, which would seem to be spousal maintenance and child support are heard, the property issue must be heard and determined in this Court first. 

2. I note that there has been some talk about divorce or dissolution of marriage.  Yet when reference is made to the applications of the parties seeking to restrain the other, dissolution or divorce does not appear to be mentioned by either of the parties. 

3. The parties, as I have said, are in disagreement as to where these issues should be heard and determined.  The wife seeks that they be heard in Italy to the exclusion of this Court.  The husband seeks that they be heard in Australia, and particularly in this Court.  The husband, indeed, has moved the Court as the initiating party in seeking orders that the matters remain in this Court.  Each party therefore seeks what is often referred to as an anti-suit injunction against the other to secure the venue in which the matters I have identified are to be heard.

BRIEF BACKGROUND

1. A brief history of this matter is instructive. 

   ·The husband was born in 1959 in Italy.

   ·The wife was born in 1962 in Italy.

   ·There is a dispute between the parties as to when they commenced cohabitation and when, indeed, they married.  The husband asserts that cohabitation commenced in about 1991, whereas the wife says it was not until July 1993.  The husband asserts the parties married in May 1993, whereas the wife says it was not until February 1996.  A marriage certificate does not appear to be on file.  Such document would have put this issue beyond doubt.

   ·The parties’ child was born in July 1998.

   ·The parties purchased property in Suburb D in April 1999.  Thereafter, for a period from approximately 2001 to 2003 the parties resided in Italy. 

   ·In about March 2003, the parties commenced residence in Adelaide and they remained there until about September 2008. 

   ·In about May 2004, they purchased property in Suburb W, South Australia, which became the parties’ home. 

   ·In about September 2008, the husband moved to Asia as required by his employment.  He is an Italian government official. 

   ·In about January 2010, the wife and child moved to Asia and took up residence with the husband. 

   ·In July 2010, the husband underwent surgery in Adelaide in relation to some brain disease or malfunction. 

   ·It appears common ground that in November 2010 (a) the parties separated and (b) the wife and the parties’ child returned to Suburb M in Sydney, where they currently reside, which I understand is with the wife’s mother.  The husband says that about this time the wife withdrew funds in credit in joint accounts.  

   ·There are a number of allegations made by the husband as to matters financial.  He says the wife received certain monies and that she withdrew further moneys from loan facilities. 

   ·What is clear is that on 19 April 2011 the husband commenced these proceedings in the Family Court of Australia.

   ·The wife asserts that she commenced proceedings on 13 June 2011 in Italy.  Information concerning these proceedings is somewhat scarce. 

The parties’ documents

1. So far as the parties’ documents filed in this matter are concerned, the husband has filed and relies upon:-

   ·An Amended Application filed on 28 November 2011;

   ·An Application in a Case filed on 4 November 2011;

   ·The husband’s affidavit sworn 28 March 2011 and filed 19 April 2011;

   ·The husband’s affidavit sworn 3 November 2011 and filed 4 November 2011;

   ·The husband’s Financial Statement verified by affidavit sworn 28 March 2011 and filed 19 April 2011.

2. As to the wife, she relies upon the following:-

   ·A Response to Initiating Application filed on 17 June 2011;

   ·A Response to an Application in a Case filed on 18 November 2011;

   ·The wife’s affidavit sworn 17 June 2011 and filed 17 June 2011;

   ·The wife’s affidavit sworn 18 November 2011 and filed 18 November 2011;

   ·The wife’s Financial Statement verified by affidavit sworn 17 June 2011 and filed 17 June 2011.

3. It is those applications in a case that raise the issue that I am to determine in this Judgment.  The husband sought orders that the wife be restrained from agitating any relief in relation to the question of division of matrimonial property, spousal maintenance, parenting of the child of the marriage and child support, in any court other than the jurisdiction of the Family Court of Australia. 

4. The wife in her Response sought (1) the dismissal of that application, (2) that there be a stay of the husband’s application for relief pending finalisation of proceedings in Italy, and (3) the husband be restrained from instituting, prosecuting or taking further steps in the proceedings in this Court for property settlement, spousal maintenance and child support.

5. I have already said that the issue of property settlement is by agreement of the parties to be heard in this Court as the first part in determining these proceedings between the parties.  As I have already noted, neither party seeks to deal with the issue of the parties’ divorce or dissolution of marriage. 

THE HEARING BEFORE ME

1. Both parties filed extensive case outline documents and in the presentation of their case spoke to those documents. 

2. The husband’s case is that the wife seeks to have the matter heard in Italy because she perceives or believes she will obtain a forensic advantage in that forum.  The husband points, in his practice direction document, to a number of matters that he says the Court should give consideration to.  Those may be identified briefly as the wife being an Australian citizen, being resident in Australia and giving no indication of her intention to reside elsewhere.

3. The husband further asserts that the parties’ child is an Australian citizen and resides in Australia.  I suspect this may have been mainly directed towards the issue of parenting, which has now been disposed of. 

4. Next, he asserts the preponderance of the parties’ assets, including all real estate, are in Australia.  Further, he asserts the majority of the marriage was spent by the parties in Australia.  The wife now lives in Sydney and instructs solicitors in Adelaide.  The wife has or intends to commence proceedings in Italy.  However, counsel for the husband asserted there was no proper evidence before me of the relevant or operative legislation in Italy that would govern any application the wife seeks to bring before the courts of that country. 

5. Finally, he asserts that the wife has not indicated to this Court with any precision what orders she would seek in an Italian court.  Counsel for the husband made the point that the only reason for litigation in Italy is that the wife appears to perceive she may gain an advantage by so doing. 

6. Senior counsel for the wife made the point that the husband’s application does not seek to prohibit an application for divorce.  Further, senior counsel asserts the husband has no connection with Australia and that he does not seek to agitate divorce, maintenance and child support.  I record here that his connection with Australia would seem to be that he is presently married to an Australian citizen, has a son who is an Australian citizen and has the bulk of the property that the parties assert they own in Australia.

7. Senior counsel for the wife says it does not matter if the wife has actually issued proceedings or not in Italy.  The wife seems to assert she has material concerning this, yet it is not in great supply.  He says that it is her intention to litigate in Italy that is relevant, rather than the fact that she has or has not actually filed in that country. 

8. I remain confused as to what has or has not been done in Italy in relation to this matter.  It would seem to be the case that the husband commenced proceedings in Italy for the recovery of the parties’ son following what is alleged to have been a removal of the child from Asia by the wife.  It would further seem that the wife commenced proceedings for domestic violence against the husband in Italy and I accept the husband was served with this document.  I am puzzled as to what the wife sought to achieve by those domestic violence proceedings in Italy. 

9. It is the wife’s case, to be found in paragraph 16 of her affidavit of 18 November, that she gave instructions to a lawyer in Italy.  The wife said that she signed all the Italian documents on 3 June 2011, which was clearly after she had been served with the husband’s application filed on 19 April together with supporting documents.  The wife asserts that she gave notice that she had issued proceedings in her prior affidavit, that is the affidavit of 18 November 2011.  She says a bundle of documents forwarded by her solicitor to the husband’s solicitor in September 2011 contained or incorporated documents relating to the Italian proceedings.

10. She has annexed, as annexure B to that affidavit, a letter identified in paragraph 16(n) of the affidavit.  However, that letter merely refers to a bundle of documents and does not set out with any clarity what was forwarded to the husband’s solicitor that may be seen as documentary material in this case. 

11. Senior counsel goes on to say that the property proceedings are not parallel proceedings as are referred to in a number of decided cases to which I propose to make reference shortly.

12. It is to his credit that senior counsel for the wife fairly conceded a number of matters.  These may be summarised as follows.  Firstly, that the property matter would need to be heard in Australia and heard first.  Secondly, that the Child Support (Registration and Collection) Act 1988 (Cth) together with the regulations under that Act and schedules thereto make provision for a means whereby an assessment order can be made in this country and effectively enforced in another country. It can certainly be enforced in Italy.

13. It was pointed out that in Italian proceedings it would be necessary to obtain a divorce or dissolution of marriage to ground other relief sought.  That would be the spousal maintenance and the child support that the wife seeks.  Senior counsel posed, then, a question of what was the advantage in Australia compared to Italy where the husband is a citizen and, indeed, a government employee.  I will return to that aspect further in these reasons for Judgment. 

14. Mr Batey in reply stated that the husband was not in a position to apply for dissolution of marriage in Australia until the parties had been separated for a period of 12 months.  It seems common ground that separation between them occurred in November 2010, which would indicate to me that the husband in Australia could not bring an application for dissolution until a year had elapsed, which would have been from some time back in November 2011.

15. He also made the point that it was unlikely that a person would seek a spousal maintenance order and to a lesser extent a child support order or assessment as against themself.  He also made the point that the Italian court, if those issues were to be determined in the Italian court, would be asked to make an order for support both of a spouse and a child in Australia.  An exercise that, perhaps, would provide some difficulty for an Italian court.  That court would need be informed by proper evidence of matters such as standards of living and incomes and other financial matters of that type.  Mr Batey says that these matters would be known to an Australian court were it to deal with the matter. 

THE LAW TO BE APPLIED

1. To determine whether or not an anti-suit injunction sought by either of the parties is to be made, I believe I must look to a significant body of case law dealing with issues of forum non conveniens.  I have been referred to a most useful and helpful decision of the Full Court of the Family Court of Australia, which is Navarro & Jurado[1].  It is a clear exposition of the law and makes reference to a number of earlier significant cases commencing with the decision of Voth & Manildra Flour Mills Pty Ltd[2]. 

   [1] [2010] FamCAFC 210

   [2] [1990] HCA 55, (1990) 171 CLR 538

2. As is pointed out by Thackray J in Navarro (supra) at paragraph 9:-

   The plurality in the High Court in Voth at 565, adopting views expressed in the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1986] 3 All ER 843, stressed that arguments about forum issues should be disposed of expeditiously, with the benefit of concise submissions. Their Honours went on to say:

   There may well be circumstances in which the primary judge may conclude that it is desirable to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors and explaining why the local forum is or is not a clearly inappropriate one. Ordinarily, however, it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken account of 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 (i.e. “clearly inappropriate forum”) grounds.

3. I should stress here, and I will return to it, that the test is clearly promulgated as not what is the convenient forum, but what is the clearly inappropriate forum in reaching a decision in these matters. 

4. In Navarro (supra) at paragraph 11, their Honours referred to remarks made by Deane J, as he then was, in Oceanic Sun Line Shipping Company & Fay[3]:-

   Th[e] power [to stay proceedings on forum grounds] 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

   a particular case and the decision whether the power should be exercised

   are matters for individual judgment and, to a significant extent, matters of impression.

   [3] (1988) 165 CLR 197

5. In Navarro (supra) at paragraph 24, reference was made to Voth (supra) and the quote made by Deane J again referring to the subjective balancing process.  It was noted that the task of a trial judge is to determine whether the applicant has established that the continuation of proceedings in Australia would be oppressive in the sense of seriously unfair, burdensome, prejudicial and damaging or vexatious in the sense of productive of serious and unjustified trouble and harassment.

6. At paragraph 56 of Navarro (supra), their Honours referred to the balancing test that their Honours of the High Court had carried out between the decisions in Voth (supra) and Gilmore & Gilmore[4]. 

   [4] (1993) FLC 92-353

7. The proceedings contemplated are clearly matrimonial proceedings within the definitions contained in section 4 of the Family Law Act 1975 (Cth).

8. In Henry v Henry[5], their Honours of the Full Court said at paragraph 32:-

   There appears to be an assumption in Gilmore that the duplication of proceedings in another country is not, of itself, relevant to the question whether Australia is a clearly inappropriate forum.

   [5] (1996) 185 CLR 571

9. Their Honours in Henry (supra) then at paragraph 33 said this:-

   Foreign proceedings usually fall for consideration in a context in which they involve the same or related factual issues as those involved in the local proceedings, but not the same legal issue and, perhaps, not the same parties. Even in cases of that kind it may sometimes be appropriate to grant a temporary stay of the local proceedings to allow the factual issues to be determined in the other jurisdiction. There are more compelling considerations in favour of a stay of the local proceedings if, as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings . . .

10. Their Honours later said this at paragraph 35:-

    It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue.

11. I say here that the factual situation in this present case is the opposite of that situation.  I am satisfied the husband commenced first.  I am not even able to say I am satisfied as a matter of concluded fact that the wife has filed elsewhere, but I am for the purpose of this Judgment working on the basis that she has an intention to do so.  An intention, which her learned senior counsel put to me, was sufficient to ground the operation of the orders that she sought.

12. Their Honours then went on to say at paragraph 36:-

    It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment".

    Their Honours said in conclusion that the appellant was “entitled to complain that no or insufficient regard was had to the fact that there were proceedings on foot” in another country.

1. In paragraph 78 of Navarro (supra), the following passage appears:-

   … we are persuaded, having regard to the submissions of Counsel for the husband directed to the common test of vexation or oppression, that the passage in question from Henry would have application to the grant of an anti-suit injunction in relation to matrimonial proceedings, and thus the unity of matrimonial causes should be the starting point, so to speak, of any consideration of an application for such an injunction in such proceedings.

2. In paragraph 123 of Navarro (supra), their Honours then said the following:

   The clearly more appropriate forum test was summarised in the remarks of Lord Goff in Spiliada when he indicated at 476-77 that a stay would only be granted if the court was satisfied that there was some other available forum, having competent jurisdiction, which was the more appropriate or “natural forum” for the trial of an action.

3. I say here that there is no doubt on the material I have before me that the Italian court could assume jurisdiction for the financial matters, but only after there is filed, and perhaps dealt with, in the Italian court an application for dissolution of the parties’ Australian marriage.  Of course, in this country the granting of a divorce is not necessary to obtain any of the relief that the wife now appears to seek.

4. In Voth (supra) again, the majority decided that a plaintiff who has invoked the jurisdiction of a court has a prima facie case to insist upon its exercise of jurisdiction.  Further, the traditional power to stay proceedings which have been regularly commenced is to be exercised in accordance with general principles empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse. 

5. At paragraph 126 of Navarro (supra), their Honours went on to say:-

   Although in Voth the majority rejected the clearly more appropriate forum test in favour of the clearly inappropriate forum test, the majority recognised at 564-65 that in applying the principles described by Deane J in Oceanic Sun, “the discussion by Lord Goff in Spiliada of relevant ‘connecting factors’ and ‘a legitimate personal and juridical advantage’ provides valuable assistance” (footnotes omitted).

6. I have made comment about the reason for the wife seeking to proceed in Italy being to obtain some form of forensic advantage.  I am not told what that may or may not be. 

7. In paragraph 133 of Navarro (supra), their Honours were satisfied that in Henry (supra), the majority of Judges confirmed that the “clearly inappropriate forum” test applied in proceedings under the Family Law Act. Their Honours again spoke of matters that might be considered. First, proceedings in the foreign forum commenced before proceedings were commenced in Australia and second, proceedings in the foreign forum, in that case, were for divorce. The reason I mention that second consideration is, as I have already said, there seems to be no application for divorce sought by either party in this matter at this time, at least in this Court.

8. In this case, as I have said, the reverse applies.  The husband’s Initiating Application, I am satisfied, was not only filed in this country first but was brought to the attention of the wife before she sought to agitate the relief that she now seeks or intends to seek in Italy. 

SUMMARY & CONCLUSION

1. I am satisfied that their Honours in the matter of Henry (supra), identified a non-exhaustive list of factors. These are set out with approval at paragraph 137 of Navarro (supra) and deal with:-

   ·    the jurisdiction of the foreign Court, whether its judgment can be enforced in Australia;

   ·    the stage that the separate proceedings have reached;

   ·    the cost incurred;

   ·    the relative connections that each party has with the foreign country; and

   ·    the ability of each of the parties to participate in the foreign court. 

2. That list provides, to my mind, a sensible and working basis from which to approach this present case.  So far as I am concerned, the jurisdiction of the Italian courts cannot be challenged, save and except on the material I have heard, which I accept.  In order to enliven the Italian jurisdiction for relief sought (for spousal maintenance and child support), a decree of dissolution of marriage or divorce must be sought and, I gather from what I have been told, be pronounced either at the same time or before the orders sought are made.  Balanced against that, the situation is that this Court clearly has jurisdiction to make the orders sought by the wife and, indeed, in respect of property, it is clearly agreed that that issue should remain with this Court and be dealt with first.

3. I am satisfied that the judgments of the Italian court and this Court can both be enforced by proper means within the other country. 

4. So far as the separate proceedings and the stages they have reached, I am still not able to say what stage it is, indeed, that the wife’s proceedings in Italy, in respect of these claims for financial matters, have reached.  I am satisfied that the matter has now reached a point in this Court where it is to be dealt with by a Registrar in a conciliation conference, which would be an appropriate time for the parties not only to discuss the issue of the property per se but all outstanding financial issues between them. 

5. I am satisfied that the cost issue may have some bearing on the outcome.  If the proceedings are heard in Australia, in this Court particularly, the wife lives in Suburb M which is no great distance from this Court.  The husband, who is seeking to proceed in this country, is the one who clearly says that he will assume the cost of travelling for himself to this country to participate in the proceedings, something which he has shown he will do by being here for the hearing of this procedural matter in these proceedings.  It would seem to me, therefore, that notwithstanding the wife has chosen to instruct her solicitor in South Australia, which she is perfectly entitled to do, that the wife would suffer far less of a consequence in costs if the proceedings were held here than if they were held in Italy.  I am satisfied that if costs were the only issue (which of course it is not) then I would have no difficulty in determining that the matter should be heard in Australia. 

6. I turn then to the relative connections each party has with the foreign forum. 

7. I have some difficulty in understanding the wife’s position.  I accept that she is a joint Italian and Australian citizen, however, she now lives in Australia, she has the care of the parties’ child who is an Australian citizen, and the assets of the parties seem to be in disagreement about are principally but not solely within Australia.  Her mother appears to also live in Australia (and in fact, as I understand it, the wife and the parties’ child live with the wife’s mother).

8. The husband’s connection with Australia seems to be less significant.  He is, I would have thought, more aligned to the Italian jurisdiction.  However, to my mind, that is something that the wife can hardly rely upon so as to say that because of his convenience, the matter should be heard in an Italian court.

9. I am satisfied that it is a most material fact that the husband commenced proceedings relating to property, albeit injunctive orders, and served those orders upon the wife prior to her commencing or intending to commence proceedings in the Italian courts.  The property proceedings, as I have already said, will need to be determined in this Court before spousal maintenance and child support issues can be dealt with.  Of course, all three financial issues can be heard together in this Court.  That, the husband asserts, is the course that should be followed.  It is not made clear to me, as I have said previously in these reasons for Judgment, why the Italian courts are in a better or even equal position to hear and determine the issues that the wife seeks to agitate in Italy.

10. There is no material that enables me to form a concluded view as to how the Italian courts would approach the task.  I have no material to inform me as to how long the process in Italy would take, whereas I am, of my own knowledge, aware that proceedings in this Court, from this point on, will take less than 12 months.  I am not told how the Italian courts could determine what was an appropriate level of support for the wife and child in Australia.  I am satisfied that the wife and child intend to remain in Australia and that then would become, in my view, a difficulty in placing before the Italian courts evidence as to appropriate levels of support that may be applicable in Australia. 

11. Their Honours of the High Court have made it clear that the test is framed to determine the inappropriate rather than the appropriate forum.  If I prevent the wife, by anti-suit injunction, from proceeding in Italy then all remaining financial issues can be determined in one set of proceedings and one hearing in this Court here in Australia.  That cannot be said or be seen to be to the wife’s disadvantage per se.  It would certainly minimise the cost involved in obtaining a set of final orders.  I am satisfied that the orders indicated by the wife as the orders that she seeks, that is orders for financial support, are indeed parallel to those referred to in the decisions to which I have made reference.  That is to say, parallel to orders sought by the husband for adjustment of property interests.

12. As I have said, the husband is silent so far as seeking to initiate orders for spousal maintenance or child support.  One might well understand that, as the matter proceeds, he will file his reply or response in respect of orders to that effect when they are sought by the wife.  The two sets of proceedings, however, would involve the same parties and rely upon the same factual basis in relation to matters financial.  The issue of property settlement as sought by the husband is by agreement to be determined first.  It seems to me, therefore, that when I balance all of these matters, I am satisfied that the proceedings of the wife are parallel proceedings.

13. I am satisfied that, for that reason, the wife’s proceedings are to be seen as oppressive as contemplated in the relevant authorities to which I have made reference in these reasons for Judgment.  The bulk of the decisions to which I have made reference relate to a party seeking, by injunction, to restrain proceedings in Australia by virtue of the existence of overseas proceedings.  However, I am satisfied that there is absolutely no reason why I cannot apply the test, to which I have sought to make reference in this case, to determine which is the forum non conveniens.  In other words, which court is the least convenient for determining the orders sought by the parties respectively. 

14. I am satisfied that it is the Italian proceedings (if on foot or when commenced) that fall into that category.  I am satisfied that the wife should be restrained from commencing or continuing proceedings in Italy for financial support, spousal maintenance or child support.  I am satisfied that the husband does not seek to restrain or, in any way, restrict the wife from proceeding to apply for a divorce or dissolution of the parties’ marriage and, indeed, nor does the wife seek any similar injunction to restrain the husband from seeking dissolution of marriage in an Australian Court.

15. The orders that I then make are as set out under the heading Orders above.

16. I note that, at the conclusion of the hearing, counsel for the husband and senior counsel for the wife, both indicated to me that, whatever the outcome of these proceedings by virtue of my reasons and orders, there would be no application made for costs against the other party.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 20 February 2012.

Legal Associate:      

Date:    27 March 2012