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Chaney & Chaney

Chaney & Chaney

Case [2022] FedCFamC2F 108 18 February 2022

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chaney & Chaney [2022] FedCFamC2F 108

File number(s): ADC 4634 of 2021

Judgment of: JUDGE PARKER

Date of judgment: 18 February 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay of proceedings – whether Australia a clearly inappropriate forum – anti-suit injunction – Australia a clearly inappropriate forum.

Legislation: Family Law Act 1975 (Cth), ss.39(3), 72, 77A

Cases cited:
CSR v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345

D & L [2005] FamCA 479; (2005) FLC ¶93-225

Ferrier-Watson & McElrath [2000] FamCA 219; (2000) FLC ¶93-022
Henry & Henry [1996] HCA 51; (1996) 185 CLR 571
Kent & Kent [2017] FamCAFC 157; (2017) FLC ¶93-792
Lan & Hao (No 2) [2017] FamCAFC 175; (2017) FLC ¶93-795
Navarro & Jurado [2010] FamCAFC 210
Obannon & Scarffe [2021] FamCAFC 33; (2021) FLC ¶94-009
Oceanic Sun Line v Fay[1988] HCA 32; (1988) 165 CLR 197

Pagliotti & Hartner [2009] FamCAFC 18; (2009) FLC ¶93-393

Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491
Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460
Talwar & Sarai [2018] FamCAFC 152; (2018) FLC ¶93-855
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 (1990) 171 CLR 538

Whung & Whung [2011] FamCA 137

Division: Division 2 Family Law

Number of paragraphs: 59

Date of last submission/s: 2 February 2022

Date of hearing: 2 February 2022

Place: Adelaide

Counsel for the Applicant: Ms Milller

Solicitor for the Applicant: Belperio Clark

Respondent: Ms Chaney
ORDERS

ADC 4634 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CHANEY

Applicant

AND:
MS CHANEY

Respondent

ORDER MADE BY:

JUDGE PARKER

DATE OF ORDER:

18 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The Application for Divorce filed by the Husband on 23 September 2021 be permanently stayed.
2.All extant applications be otherwise dismissed.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BACKGROUND

The Applicant Husband, Mr Chaney (‘the Husband’) filed an Application for Divorce on 23 September 2022 and an Initiating Application on 29 October 2021 in which he sought financial orders. Although…

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: Chaney & Chaney [2022] FedCFamC2F 108
Case: [2022] FedCFamC2F 108
Decision Date: 18 February 2022

CaseChat Overview and Summary

The case of Chaney & Chaney was heard in the Family Court of Australia, where the husband had filed for divorce and the wife sought a stay of proceedings, contending that Australia was not a suitable forum for the matter. The wife's application for a stay was predicated on the basis that Australia was a clearly inappropriate jurisdiction for the proceedings to be conducted. Additionally, she sought an anti-suit injunction to prevent the husband from continuing with the divorce application in Australia.

The court was required to determine whether Australia was indeed a clearly inappropriate forum for the divorce proceedings, and if so, whether it should grant a stay and an anti-suit injunction. The court considered the applicable principles of forum non conveniens and the public policy considerations inherent in the jurisdiction of the court.

The court found that Australia was not a clearly inappropriate forum for the divorce proceedings, as both parties had a significant connection to Australia and the matter could be efficiently resolved in this jurisdiction. The court also noted that the wife had not demonstrated any compelling reasons why the proceedings should be stayed. Consequently, the application for a stay was dismissed, and the application for an anti-suit injunction was also denied. The divorce application was allowed to proceed.

The court's final orders were that the application for divorce filed by the husband on 23 September 2021 be permanently stayed, and all other extant applications be dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Application for Divorce filed by the Husband on 23 September 2021 be permanently stayed.

2. All extant applications be otherwise dismissed.

Background

Background to the litigation

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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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Citations

Chaney & Chaney [2022] FedCFamC2F 108

Cases Citing This Decision

No citing cases yet.

Cases Cited

Talwar & Sarai [2018] FamCAFC 152
Citation 1 (Para 22)

…r an Australian court is a clearly inappropriate forum include, inter alia , whether complete relief is available in the local jurisdiction. [15] [2018] FamCAFC 152; (2018) FLC ¶93-855 at [24] (per Ainslie-Wallace, Ryan and Aldridge JJ).…
Kent & Kent [2017] FamCAFC 157
Citation 2 (Para 14)

…R 491 at [78]–[79] (per Gleeson CJ, , McHugh, Gummow and Hayne JJ). [11] Voth at [66] (per Mason CJ, Deane, Dawson and Gaudron JJ); Kent & Kent [2017] FamCAFC 157; (2017) FLC ¶93-792; at [29] (per Thackray, Strickland and Murphy JJ).…
Whung & Whung [2011] FamCA 137
Citation 3 (Para 27)

…subsequent proceedings will be vexatious or oppressive in the relevant sense. [20] Henry at [35] (per Dawson, Gaudron, McHugh and Gummow JJ). [21] [2011] FamCA 137 at [130]-[133]. See also Lan & Hao (No 2) [2017] FamCAFC 175; (2017) FLC ¶93-795 (at [39] (per Ainslie-Wallace, Aldridge and Watts JJ).…
Navarro v Jurado [2010] FamCAFC 210
Citation 4 (Para 25)

…lia during their marriage and in both cases the Husband had lived in Australia for a substantial period of time and remained in Australia. [35] [2010] FamCAFC 210.…
Pagliotti & Hartner [2009] FamCAFC 18
Citation 5 (Para 24)

…down of a marriage be determined in the same jurisdiction,[17] unity of matrimonial causes should be the starting point.[18] [17] Pagliotti & Hartner [2009] FamCAFC 18; (2009) FLC ¶93-393. [18] D & L [2005] FamCA 479; (2005) FLC ¶93-225 at [48] (per Finn, May and Boland JJ). This observation was made in the context…
Lederer & Hunt [2007] FamCA 55
Citation 6 (Para 30)

…foreign proceedings should be exercised with caution.[36] [36] CSR, per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. See also Lederer & Hunt [2007] FamCA 55; (2007) FLC ¶93-311.…
In the Marriage of Dobson and Van Londen [2005] FamCA 479
Citation 7 (Para 24)

…iction,[17] unity of matrimonial causes should be the starting point.[18] [17] Pagliotti & Hartner [2009] FamCAFC 18; (2009) FLC ¶93-393. [18] D & L [2005] FamCA 479; (2005) FLC ¶93-225 at [48] (per Finn, May and Boland JJ). This observation was made in the context of an application for an anti-suit injunction but…
Regie Nationale Des Usines Renault SA v Zhang [2002] HCA 10
Citation 8 (Para 14)

…orp v Cansulex Ltd [1987] 1 AC 460. [10] Voth at [30] (per Mason CJ, Deane, Dawson and Gaudron JJ); Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 at [78]–[79] (per Gleeson CJ, , McHugh, Gummow and Hayne JJ). [11] Voth at [66] (per Mason CJ, Deane, Dawson and Gaudron JJ); Kent &…
Ferrier-Watson v McElrath [2000] FamCA 219
Citation 9 (Para 22)

…nd the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.[33] [32] [2000] FamCA 219; (2000) FLC ¶93-022. [33] Henry at [37] (per Dawson, Gaudron, McHugh and Gummow JJ).…
CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33
Citation 10 (Para 12)

…prior to giving consideration to the question of the granting of an anti-suit injunction.[3] STAY APPLICATION [3] CSR v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345 (per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). The Law…
Henry v Henry [1996] HCA 51
Citation 11 (Para 15)

…e relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy. [12] [1996] HCA 51; (1996) 185 CLR 571 at [39]-[40] (per Dawson, Gaudron, McHugh and Gummow JJ). 40. Other considerations include the order in which the proceedings were in…
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
Citation 12 (Para 13)

…the Respondent, in this case the Wife, to demonstrate that the Australian court is a clearly inappropriate forum.[8] [4] [1990] HCA 55 (1990) 171 CLR 538 at [32] (per Mason CJ, Deane, Dawson and Gaudron JJ). [5] [1988] HCA 32; (1988) 165 CLR 197; see also Voth at [51]. [6] Oceanic at [6] (per Deane J). [7] Voth…
Oceanic Sun Line Special Shipping Co inc v Fay [1988] HCA 32
Citation 13 (Para 13)

…ly inappropriate forum.[8] [4] [1990] HCA 55 (1990) 171 CLR 538 at [32] (per Mason CJ, Deane, Dawson and Gaudron JJ). [5] [1988] HCA 32; (1988) 165 CLR 197; see also Voth at [51]. [6] Oceanic at [6] (per Deane J). [7] Voth at [30] (per Mason CJ, Deane, Dawson and Gaudron JJ). [8] Oceanic at [7] (per Deane J).…
OBANNON & SCARFFE [2021] FamCAFC 33
Citation 14 (Para 26)

…arly inappropriate forum for the determination of a single aspect of the legal issues arising from the breakdown of the parties’ marriage. [19] [2021] FamCAFC 33; (2021) FLC ¶94-009 at [105], [144] (per Kent, Watts and Austin JJ). The order in which the proceedings were instituted…
Lan & Hao (No 2) [2017] FamCAFC 175
Citation 15 (Para 27)

…the relevant sense. [20] Henry at [35] (per Dawson, Gaudron, McHugh and Gummow JJ). [21] [2011] FamCA 137 at [130]-[133]. See also Lan & Hao (No 2) [2017] FamCAFC 175; (2017) FLC ¶93-795 (at [39] (per Ainslie-Wallace, Aldridge and Watts JJ).…
[1987] 1 AC 460 [1987] 1 AC 460
Citation 16 (Para 14)

…es in this case, it does not follow that Australia is a clearly inappropriate forum.[11] [9] As outlined in Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460. [10] Voth at [30] (per Mason CJ, Deane, Dawson and Gaudron JJ); Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 at [78]–…

Legislation Cited

Family Law Act 1975 (Cth) 104, 39(3), 72, 77A
5 mentions (from Para 1)

File number(s):	ADC 4634 of 2021
Judgment of:	JUDGE PARKER
Date of judgment:	18 February 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay of proceedings – whether Australia a clearly inappropriate forum – anti-suit injunction – Australia a clearly inappropriate forum.
Legislation:	Family Law Act 1975 (Cth), ss.39(3), 72, 77A
Cases cited:	CSR v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345 D & L [2005] FamCA 479; (2005) FLC ¶93-225 Ferrier-Watson & McElrath [2000] FamCA 219; (2000) FLC ¶93-022 Henry & Henry [1996] HCA 51; (1996) 185 CLR 571 Kent & Kent [2017] FamCAFC 157; (2017) FLC ¶93-792 Lan & Hao (No 2) [2017] FamCAFC 175; (2017) FLC ¶93-795 Navarro & Jurado [2010] FamCAFC 210 Obannon & Scarffe [2021] FamCAFC 33; (2021) FLC ¶94-009 Oceanic Sun Line v Fay[1988] HCA 32; (1988) 165 CLR 197 Pagliotti & Hartner [2009] FamCAFC 18; (2009) FLC ¶93-393 Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460 Talwar & Sarai [2018] FamCAFC 152; (2018) FLC ¶93-855 Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 (1990) 171 CLR 538 Whung & Whung [2011] FamCA 137
Division:	Division 2 Family Law
Number of paragraphs:	59
Date of last submission/s:	2 February 2022
Date of hearing:	2 February 2022
Place:	Adelaide
Counsel for the Applicant:	Ms Milller
Solicitor for the Applicant:	Belperio Clark
Respondent:	Ms Chaney

ADC 4634 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CHANEY Applicant
AND:	MS CHANEY Respondent

ORDER MADE BY:	JUDGE PARKER
DATE OF ORDER:	18 FEBRUARY 2022