Chaney & Chaney
[2022] FedCFamC2F 108
•18 February 2022
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 197Pagliotti & 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 538Whung & 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 the final orders sought in the Husband’s Initiating Application contained a preamble making reference to ‘full and final satisfaction of any claim that either party may have or hereafter have against the other for settlement of property, alteration of property interests, spousal maintenance and costs,’ none of the orders sought in fact enlivened the court’s jurisdiction pursuant to either s 72 or s 77A of the Family Law Act1975 (Cth), and they were properly characterised by the Husband in his case outline as ‘orders for property settlement’.[1]
[1] Husband’s Case Outline filed 1 February 2022, paragraph 1.
The Husband’s Initiating Application also sought an anti-suit injunction restraining Respondent Wife, Ms Chaney (‘the Wife’) from prosecuting proceedings between the parties initiated by her in Country B (‘the Country B proceedings’) insofar as they relate to property settlement and spousal maintenance.
The Wife is unrepresented in the proceedings before this Court. She filed a Response to Divorce on 18 November 2021 and a Response to Initiating Application on 5 December 2021. Both responding documents sought orders to the effect that the Husband’s Application for Divorce and Initiating Application respectively be stayed or dismissed in circumstances in which there were, at the time of filing of those applications, already proceedings on foot in Country B in relation to the same matters.
The parties were each born in the United Kingdom. They married in the United Kingdom in 2014. In 2015, the parties moved to Australia, where they lived until their separation on 16 January 2020. The parties had a son, born in 2017 and a daughter born in 2020, both of whom were born in Australia. In 2020, shortly after the birth of their younger child, the parties separated. Both parties are dual British and Australian citizens.
In early 2020, the Wife returned to the United Kingdom with the children. Although he signed a parenting plan consenting to the Wife’s travel to the United Kingdom with the children, the Husband’s evidence is that he withdrew his consent prior to the Wife’s removal of the children from Australia. In mid-2020, the Wife informed the Husband that she was taking the children to Country B, where they have remained since that time. The Husband remains living in Australia.
The Wife commenced the Country B proceedings in the Country B Court in late 2021. The Country B proceedings encompassed applications for divorce, orders pertaining to the children, spousal maintenance and child maintenance. The Wife’s evidence was that such applications are dealt with collectively pursuant to Country B law, and that divorce cannot be excised from the balance of the applications in the same manner as can occur under Australian law. This assertion was not disputed on behalf of the Husband and is consistent with the face of the documents filed in the Country B proceedings, which were annexed to an Affidavit filed by the Wife.[2] Neither party adduced any expert evidence as to Country B law.
[2] Wife’s Affidavit filed December 2021, annexure 3.
Although the Wife’s application in the Country B proceeding had been filed some 14 days prior to the filing of the Husband’s Application for Divorce and just over 7 weeks prior to his Initiating Application and the Wife had commenced the process of service through the appropriate international channels, it is common ground that service on the Husband had not yet been properly effected by the time he filed his Applications in this Court. The Husband’s evidence is that he received a copy of the Wife’s application by way of email from her on 20 October 2021, being after the filing of his Application for Divorce but prior to the filing of his Initiating Application. The Wife alleges that the Husband was deliberately evading service but has not established that the Husband was in fact aware of the existence of the Country B proceedings at the time of filing his Application for Divorce.
On 18 November 2021, the Wife sought an anti-suit injunction in the Country B Court, seeking to restrain the Husband from pursuing his divorce and property applications in this Court. A hearing took place in the Country B Court in early 2022, in which the Husband participated and was represented. He opposed the continuation of the Country B proceedings on grounds relating to the question of the appropriateness of that forum. At the time of the hearing before me, the Country B proceedings remained pending, and although there was some lack of clarity as to the precise status of those proceedings, it was clear that they were at a preliminary stage, and the forum dispute had been heard but had not yet been determined. The Husband’s evidence is that he is represented by Country B solicitors in the Country B proceedings.
It is common ground between the parties that proceedings between them in relation to parenting arrangements will take place in the Country B Court. At the time of the hearing before me, there were no proceedings on foot in Australia in relation to child support or child maintenance, and save for the reference to spousal maintenance in the preamble to the orders sought in the Husband’s Initiating Application, there was no application before this Court in relation to spousal maintenance.
APPLICATIONS BEFORE THE COURT
During the hearing before me, the Wife indicated that she consented to the final orders sought in the Husband’s Initiating Application (save for the order as to costs) in their entirety. As a result, final orders were made by consent finalising the extant property application, and the sole substantive application remaining before this Court is the Husband’s Application for Divorce.
As such, the issues I am required to determine are:
(a)The Wife’s Response to Divorce, which seeks, in effect, that the Husband’s Application for Divorce be stayed on the basis that Australia is not the appropriate forum for determination of the divorce; and
(b)The Husband’s application for an anti-suit injunction restraining the Wife from continuing the Country B proceedings.
I am required to consider the stay application 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
This Court will stay proceedings pending before it if satisfied, in accordance with the test adopted by the High Court of Australia in Voth v Manildra Flour Mills Pty Ltd (‘Voth’) [4] that it is a clearly inappropriate forum for the determination of the dispute. Whether an Australian court is a ‘clearly inappropriate forum’ is to be determined by consideration of whether continuation of the proceedings would be ‘oppressive’ or ‘vexatious’ in the sense in which those words were used by Deane J in Oceanic Sun Line v Fay (‘Oceanic’).[5] ‘Oppressive’ in this context, means seriously and unfairly burdensome, prejudicial or damaging; while ‘vexatious’ means productive of serious and unjustified trouble and harassment.[6] A party who has properly instituted proceedings in Australia has a prima facie right to have the proceedings determined by an Australian court unless Australia is the clearly inappropriate jurisdiction.[7] The onus is on 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 at [30] (per Mason CJ, Deane, Dawson and Gaudron JJ).
[8] Oceanic at [7] (per Deane J).
Importantly, in Oceanic and Voth, the High Court of Australia eschewed the ‘more appropriate forum’ test adopted by the British courts,[9] and as such, it is clear that a conclusion as to whether the Australian court is a clearly inappropriate forum is not to be reached by way of a balancing exercise pursuant to which the two jurisdictions are compared.[10] Even if I am satisfied that the Country B court is a more appropriate forum for the determination of the outstanding aspects of the dispute between the parties 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]–[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).
In Henry & Henry (‘Henry’),[12] the High Court majority outlined a number of matters to be considered in the determination of whether Australia is a clearly inappropriate forum in the sense referred to in Voth, as follows:
39. Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy.
40. Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.[12] [1996] HCA 51; (1996) 185 CLR 571 at [39]-[40] (per Dawson, Gaudron, McHugh and Gummow JJ).
Discussion
Understandably, the submissions made on behalf of the parties in their respective outlines and the early stages of the hearing before me focused significantly on the property aspect of the Husband’s application. Following the resolution of that aspect of the dispute, the submissions made on behalf of the parties, to the extent that they pertain specifically to property settlement matters, are no longer relevant. The parties’ submissions and evidence have been considered to the extent that they remain relevant following the finalisation of the property application.
Taking each of the considerations outlined in Henry in turn:
Whether the courts of the respective countries have jurisdiction with respect to the parties and their marriage. No question arises unless this question is answered in the affirmative
It is not a matter of dispute between the parties that the courts of both countries have jurisdiction to deal with the sole issue that remains pending before this Court, being the parties’ divorce. For the sake of completeness, I record that I am satisfied that this Court has jurisdiction to determine that application in circumstances in which the Husband is an Australian citizen and has at all material times been both domiciled in and ordinarily resident in Australia.[13]
[13] Family Law Act 1975 (Cth) s 39(3).
Whether each will recognise the other's orders and decrees
Neither party submitted, nor adduced any evidence to suggest, that either jurisdiction would not recognise a divorce order granted by the other.
There is nothing in the evidence before the Court to suggest that a divorce granted in Country B in the circumstances of this case would not be recognised in Australia.[14]
[14] Family Law Act 1975 (Cth) s 104.
The Wife, who was unrepresented before me but who has the benefit of legal representation in the Country B proceedings, made no suggestion that an Australian divorce order would not be recognised in Country B.
Which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy
As the Full Court of the Family Court of Australia (as it then was) held in Talwar & Sarai (‘Talwar’),[15] the key issues to be determined in assessing whether 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).
As the majority held in CSR v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345 (‘CSR’):
In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are ‘productive of serious and unjustified trouble and harassment’ or ‘seriously and unfairly burdensome, prejudicial or damaging.’[16]
[16] Per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
Although it is not necessary that each cause of action or matrimonial cause arising from the breakdown 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 of an application for an anti-suit injunction but is nonetheless apt as it involved consideration of whether an application was ‘vexatious and oppressive’ in the relevant sense.
The Wife submitted that in circumstances in which it is not disputed that regardless of the outcome of the hearing before me, the parties will be participating in proceedings in Country B at least insofar as parenting matters are concerned and the Country B court can deal with all relevant applications in a single case, it is clearly inappropriate for the causes of action arising from the breakdown of the parties’ marriage to be fragmented across jurisdictions. There is considerable force in this submission.
In Obannon & Scarffe,[19] the Full Court of the Family Court of Australia described as ‘centrally important’ to an application for a stay of property settlement proceedings in Australia the circumstance that both parties sought that there be a continuation of proceedings in Singapore in relation to divorce, spousal maintenance, parenting issues and child support. I accept that this factor is similarly important to the issue before me. This is a factor that weighs heavily in favour of a determination that Australia is a clearly 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
As outlined above, the Country B proceedings were commenced prior to any applications being filed in this Court. The Wife submits that the earlier filed proceedings should take precedence. This is a matter of some significance, because, as the majority held in Henry, it is prima facie vexatious and oppressive to commence second or subsequent proceedings and the existence of simultaneous proceedings will be highly relevant to the question of whether the local proceedings are oppressive in the relevant sense.[20] However, as O’Reilly J held in Whung & Whung[21] it would be overly simplistic to conclude that it is necessarily the case that second or 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).
It is common ground that at the time of filing of his Application for Divorce, the Husband had not been formally served with the documents filed by the Wife in the Country B proceedings. It is not necessary for me to determine whether the Husband was evading service as alleged by the Wife or whether he was in fact unaware at the time of filing of his Application for Divorce that an application regarding the same subject matter was already pending before the Country B Court. As Deane J held in Oceanic, the relevant assessment is whether the continuation of the Australian proceedings would be vexatious or oppressive, and it is not necessary to focus on the conduct of the Applicant.[22] As such, I need not consider the extent to which the Husband acted bona fide in bringing his Application at a time when there were already proceedings on foot in Country B.
[22] Oceanic at [7] (per Deane J).
The Country B proceedings were filed first in time, which renders the proceeding in this Court prima facie vexatious and oppressive. In my view, there is nothing in the evidence adduced or submissions made on behalf of the Husband which would displace this starting point. This is a factor that weighs strongly in favour of a determination that this Court is a clearly inappropriate forum.
The stage which the proceedings have reached
The Husband submitted[23] that the proceedings in each of the Courts had reached a similar stage. I accept this submission. The proceedings in both jurisdictions are at the preliminary phase of determination of the forum-related dispute between the parties, which is being pressed in both jurisdictions. This factor does not assist with the determination of the dispute as to forum in the circumstances of the present case.
[23] Husband’s Case Outlined filed 1 February 2022.
The costs that have been incurred
Both parties have incurred costs in the Country B proceedings and will continue to do so regardless of the outcome of the applications pending before me, in circumstances in which their parenting proceedings (and likely other proceedings, including those relating to child maintenance) will be determined in the Country B court. Only the Husband, who is represented, has incurred costs of any significance in the proceedings before this Court, but it is apparent that a significant proportion of those costs related to the property aspect of the proceedings, which has now been resolved. It was not suggested before me that a significant amount of expenditure has been dedicated to the Application for Divorce, which is the remaining pending application.
Noting that the list of factors outlined by the majority Henry is not exhaustive,[24] I turn to consider the costs that will likely be incurred in future.
[24] [1996] HCA 51; (1996) 185 CLR 571 at [39]-[40] (per Dawson, Gaudron, McHugh and Gummow JJ).
The Husband’s evidence is that he will be ‘significantly financially disadvantaged’ if the proceedings are heard in Country B.[25] However, this assertion was made in the context of an extant property application, and there is no evidence to suggest that having the divorce application dealt with as part of the proceedings in Country B rather than separately in Australia would occasion any financial disadvantage to the Husband.
[25] Husband’s Affidavit filed 29 November 2021, paragraph 17.
The Wife submits that it would be more cost effective to have the entirety of the proceedings determined together in Country B and asserts that she lacks the financial resources to defend multiple actions in two countries. She also asserts that representation is more affordable in Country B as a result of the need to engage both a solicitor and a barrister in Australia. Like the Husband’s submissions, this assertion was put prior to the resolution of the extant property application, in circumstances different from those now facing the parties and the Court.
In circumstances in which the sole remaining substantive application pending before this Court is the Husband’s Application for Divorce, which could, in the event of a determination in the Husband’s favour, be dealt with by way of this judgment without the need for a further hearing, and in light of the fact that the Wife is not represented in the proceedings before this Court, I place limited weight on this factor.
The connection of the parties and their marriage with each of the jurisdictions and the issues on which relief might depend in those jurisdictions
This factor encompasses the ‘relevant connecting factors’ identified by Lord Goff in Spiliada Maritime Corp v Cansulex Ltd,[26] being factors such as convenience, expense and availability of witnesses, which were identified by the majority in Voth as providing valuable assistance.[27]
[26] [1987] 1 AC 460.
[27] Voth at [51] (per Mason CJ, Deane, Dawson and Gaudron JJ).
It is not a matter of controversy that the Husband’s connection to Country B has historically been negligible if such a connection existed at all. On the evidence before the Court, such a connection is limited to the fact that his children now reside there and the consequential circumstance that proceedings in relation to parenting matters and likely also child maintenance will be prosecuted there regardless of the outcome of the present applications.
In his case outline filed prior to the hearing before me, the Husband relied on the fact that the parties’ property, including superannuation, was located in Australia, and that the parties had a strong connection to Australia, having lived in this country for the large majority of the duration of their marriage. I accept that these matters would have been a particularly significant factor had there still been extant financial applications pending before this Court, and that the strength of the parties’ connection, in particular, remains relevant. These factors weigh against a determination that Australia is a clearly inappropriate forum. They are, however, of much more limited significance in the present circumstances, in which the only substantive application which remains pending is an Application for Divorce, which, aside from the need to establish jurisdiction, is not dependent on any specific location for effective determination or implementation.
The Husband is resident in Australia and the Wife and children are resident in Country B. Neither party suggested that any witnesses other than the parties themselves would be called in relation to the competing divorce applications (as distinct from any other substantive applications). As such, there does not appear to be any practical inconvenience to one party of having the proceedings determined in one jurisdiction which is not equally experienced by the other on the alternative outcome. That is, the matters pointed to by each of the parties extend no further than the fact that it is more convenient to each of them to have as much of their dispute as possible determined in the country in which they each reside.
The Wife asserted, without objection from the Husband, that divorce and related proceedings are heard together in Country B as a ‘package’. She did not adduce any evidence as to the consequences to the remaining aspects of the Country B proceedings if the divorce application were to be determined in Australia, and as such, I am unable to draw any conclusions in that regard.
In light of the foregoing, whilst this is a factor which favours the outcome sought by the Husband, it is not a factor of great significance in light of the nature of the sole substantive application now remaining before this Court.
Whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing
The Husband asserts that he will be ‘significantly disadvantaged’ if the proceedings are heard in Country B.[28] Again, however, this assertion was made in a context in which there were substantive financial proceedings pending before the Australian court and was not specifically directed to the more limited issue of the divorce application. There is no evidence before the Court to suggest any disadvantage to the Husband arising from the divorce proceeding being determined in Country B beyond the loss of his choice as to jurisdiction.
[28] Husband’s Affidavit filed 29 November 2021, paragraph 16.
The evidence before the Court is that both parties are fluent in both Country B and English and both are represented in the Country B proceedings.[29]
[29] Wife’s Affidavit filed 5 December 2021, paragraph 12.
In any event, in circumstances in which it is not a matter of dispute between the parties that they will be litigating in the Country B court in relation to some aspects of their dispute, the relevance of this factor is limited. The Husband will, on any view, be participating in proceedings in Country B and in the Country B language in relation to at least some aspects of the determination of the legal issues arising from the breakdown of the parties’ marriage, and it is not apparent that any equality of footing, to the extent that it may be lacking, could be gained for the Husband by permitting his divorce application to be determined separately in Australia.
Other relevant matters in the general circumstances of the case
The majority in Voth[30] endorsed consideration of whether there is ‘legitimate personal or juridical advantage’ in having the proceeding determined in the forum in question. Although this may well have been in the case for the Husband with respect to the financial aspects of the proceedings, the Court was referred to no such advantage arising specifically in relation to the competing applications for divorce, and neither party suggested that there was a remedy or other substantive benefit available in respect of divorce in either jurisdiction that is not available in the other.
[30] At [51]; citing Lord Goff in Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460.
It is likely that, given its interconnectedness with the other aspects of the dispute between the parties, there would likely be greater delay associated with having the divorce application determined in Country B. However, there is no evidence before the Court to suggest that expediency could properly be characterised as a personal or juridical advantage to either of the parties. There is likewise no evidence suggestive of any risk that the divorce order will not ultimately be made in the Country B proceedings or that the law in Country B would operate to the Husband’s disadvantage vis-à-vis the issue of dissolution of the parties’ marriage.
Other ‘key issues’ identified by the Full Court of the Family Court of Australia in Talwar[31] include whether the controversy between the parties is the same in both jurisdictions and whether there is nothing to be gained in the overseas proceedings. In the present case, to the extent that the proceedings relate to dissolution of the parties’ marriage, they can be said to be the same in each jurisdiction. What can be gained in the Country B proceedings is the consolidated determination of all of the remaining issues to be determined.
[31] At [24] (per Ainslie-Wallace, Ryan and Aldridge JJ).
I am assisted in the determination of whether Australia is a clearly inappropriate forum by two decisions of the Full Court of the Family Court of Australia in cases in which the factual circumstances were similar in many respects to the facts of the present case.
In Ferrier-Watson & McElrath (‘Ferrier-Watson’),[32] the Husband had applied for a divorce in Australia after the Wife had commenced proceedings for a judicial separation and maintenance (but not a divorce) in Fiji. The Husband, who resided in Australia, was unable to apply for a divorce in Fiji due to jurisdictional constraints. In allowing the Wife’s appeal against a refusal of her application for a stay of the Application for Divorce, the Full Court majority determined that, rather than there being a number of separate controversies, the marital relationship as a whole was the relevant ‘controversy’. In so doing, the majority relied on the following extract from the High Court’s decision in Henry:
If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and 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).
The Full Court majority in Ferrier-Watson held:
We consider that the passages in the judgment in Henry ... make it clear enough that there is but one dispute between these parties, that being the marital relationship. That matter, with its various facets, was being litigated in Fiji before the husband filed proceedings here.[34]
[34] At [102] (per Holden and Jerrard JJ). Finn J dissented but not on this point.
In my view, these observations apply equally to the present case and weigh heavily in favour of a conclusion that Australia is a clearly inappropriate forum for the determination of the parties’ divorce.
The present case bears some similarities to the facts of Navarro & Jurado (‘Navarro’).[35] That case, like the present case, involved an application to stay an Application for Divorce filed in Australia by the Husband, who resided in Australia. In both cases, the Australian application had been filed later in time than an application for divorce filed in a country to which the Wife had moved with the child or children following separation, and in both cases, the Husband’s position was that the relocation had been unilateral. In both cases, the parties had married overseas and had lived in Australia 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.
The Federal Magistrate at first instance in Navarro concluded that Australia was a clearly inappropriate forum, and this outcome was undisturbed on appeal. There were some important differences, including the fact that the wife’s birth, parties’ marriage and the early years of their time as a married couple had taken place in the country to which the Wife had moved, and a finding that the Husband in Navarro had been on notice of the Wife’s foreign proceedings at the time he had filed his application. However, key aspects of the reasoning applied in that case are also applicable in the current case, including:
(a)A conclusion that only one party (the Husband) retained any real connection to Australia, while the Husband maintained a connection with the Wife’s country of residence by virtue of the fact that his child lived there and he was seeking parenting and other orders there in response to an application brought by the Wife and had thereby submitted to the jurisdiction of the court there in some respects; and
(b)The fact that only one aspect of the proceedings between the parties would be resolved by way of the application pending in the Australian court.
This case also supports the conclusion that Australia should properly be considered a clearly inappropriate forum.
Conclusion
My consideration of each of the matters outlined above leads me to the conclusion that Australia is a clearly inappropriate forum in the sense outlined in Voth. I shall therefore grant the relief as sought by the Wife, being a stay of the Husband’s Application for Divorce.
ANTI-SUIT INJUNCTION
The principles relating to the grant of an anti-suit injunction are as set out by the High Court of Australia in CSR. Although the jurisdiction to grant anti-suit injunctions is not restricted to defined categories, in summary, anti-suit injunctions made be granted either:
a. to restrain unconscionable conduct or the unconscientious exercise of legal rights; or
b. in exercise of a court’s inherent jurisdiction, when the administration of justice demands, to protect the court’s processes.
For reasons of comity, anti-suit injunctions, which interfere (albeit indirectly, by way of orders made in personam) with the operation of foreign courts, the power to grant injunctions in restraint of 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.
Significantly, and fatally for the Husband’s application for an anti-suit injunction, the High Court majority held in CSR that:
If the Australian court decides that it is clearly an inappropriate forum, that will be the end of its involvement and the occasion for considering whether to grant an anti-suit injunction or other relief will not arise. [37]
[37] CSR, per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ
In circumstances in which I have concluded that Australia is a clearly inappropriate forum for the determination of the Husband’s Application for Divorce, and that application is the only substantive application pending in this Court, the Husband’s application for an anti-suit injunction must fail.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker. Dated: 18 February 2022
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