CLAYTON & BANT NO 2

[2015] FamCA 102

FAMILY COURT OF AUSTRALIA

CLAYTON & BANT NO 2 [2015] FamCA 102

FAMILY LAW – PRACTICE AND PROCEDURE - INJUNCTIONS – Where divorce and property proceedings were current both in Australian and in City Z – Where the applicant seeks an urgent anti-suit injunction – Where the respondent opposes the application – Where the question of forum is to be considered by this Court in the near future – Where the wife has established a prima facie case for a property settlement in this Court – Where it is imminent that the City Z Court is likely to hand down a judgment and make orders as sought by the husband – Orders made that the husband request and prevent the City Z Court from delivering any findings or judgment in the proceedings.

Family Law Act 1975 (Cth) ss 4, 31(2), 39

CSR Ltd v Cigma Insurance Australia (1997) 189 CLR 345

APPLICANT: Ms Clayton

RESPONDENT: Mr Bant

FILE NUMBER: LEC 310 of 2013

DATE ORDERES DELIVERED: 25 February 2015

DATE DELIVERED: 27 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 25 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd, SC

SOLICITOR FOR THE APPLICANT: GJ Legal Solicitors

COUNSEL FOR THE RESPONDENT: Mr Kirk, QC

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. That until 4.00 pm on 2 March 2015 the husband do all things and give all instructions necessary to request and prevent the City Z Court from delivering any findings or judgment in the proceedings 918/2014 commenced on 15 July 2014.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: LEC 310 of 2013

Ms Clayton

Applicant

And

Mr Bant

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings involve an application for an urgent anti-suit injunction. 

2. The applicant is Ms Clayton to whom for convenience I shall refer as “the wife”.  The respondent is Mr Bant and for convenience I shall refer to him as “the husband”.

3. Proceedings between the parties are currently pending in this Court and also in the W Court in City Z (“the City Z Court”), Country U (“CU”) in relation to divorce and matrimonial property.

4. The question of which forum would be appropriate for the hearing of these matters in dispute has been in issue between these parties for a considerable period.  It has been listed for hearing by this Court in Brisbane on 2 March 2015.  In the meantime, it has become clear that the husband anticipates that the City Z Court is likely to hand down a judgment and make orders as sought by him concerning divorce and matrimonial property on 26 February 2015. 

5. In these circumstances the wife has sought urgent orders to the effect that the husband do all things and give all instructions necessary to request and prevent the City Z Court from delivering any findings or judgment in proceedings 918/2014 commenced on 15 July 2014 pending further order of this Court.

6. The wife’s application was opposed by the husband who seeks that it be dismissed.

7. I heard these proceedings on 25 February 2015 and, because of the urgency, made the order for an anti-suit injunction without giving reasons.  These are the reasons.

Background

1. The husband is a Country U national born in 1973.  The wife is an Australian citizen having been born in Australia in 1977. 

2. The parties met in CU in 2006.  The wife was employed as in the travel industry.

3. They commenced cohabiting in mid-2006 and married in City Z in 2007.  Prior to the parties’ marriage that day, they entered into a Marriage Contract in the CU language.  The husband said that was interpreted to the wife. 

4. The Marriage Contract provided for the wife to receive 100 000 dirhams (approximately AUD$25 000) on marriage and the same amount upon divorce.  The wife says she understood the document to be a Marriage Certificate and nothing more.  She said she trusted the husband and nothing was said to her that caused her to think the document was other than “a simple marriage document”. 

5. The husband asserts in his affidavit that the judge of the City Z Court who was present at the marriage ceremony and signing of the Contract informed the wife through an English interpreter about the terms of the Marriage Contract and that the wife informed the judge that she understood the terms of the contract.  The husband alleges the wife informed the judge that she did not wish to change any of the terms of the Marriage Contract.  The wife denied this.

6. There is one child of the marriage, Y who was born in Australia in 2009.

7. The parties separated in July 2013 at a time when they had come to Australia to spend time here on holiday.

8. There is relevant property in Australia and property in CU and other countries. 

9. Just before separation the wife had obtained an ex parte Apprehended Domestic Violence Order from the B Magistrates Court.  She had also commenced proceedings in the Federal Circuit Court (“FCC”) initially seeking parenting orders and, after a few weeks, amending her application to include orders for property settlement and spousal maintenance.

10. The proceedings were transferred to this Court and the husband made a challenge to jurisdiction.  Ultimately the issue about jurisdiction came before Kent J to be heard with the parenting application on 8 October 2013.  There is an issue about whether during this trial the husband abandoned his opposition to the Court exercising jurisdiction.  Kent J delivered judgment on 19 November 2013 making orders for the child to reside with her mother and restraining removal of the child from Australia.  His Honour also ordered that all outstanding applications be dismissed.  Amongst the outstanding applications was the wife’s property application.  After a long time, the husband conceded that this order had been made accidentally and agreed to application of the “slip rule” to rectify the accident. 

11. In March 2014 the husband sought leave to appeal Kent J’s orders.  He was out of time and in May 2014 May J heard his application for leave to file an appeal out of time, which leave her Honour granted in June 2014.

12. On 15 July 2014, without any mention to the wife of his intention to do so, the husband filed proceedings for divorce in the Second Personal Status Family Circuit of the City Z Courts (“the City Z Court”).  There was no attempt to serve the wife with the relevant divorce petition notwithstanding that the parties had been engaged in litigation in Australia about matrimonial matters and the wife had solicitors acting for her in these proceedings which were ongoing.

13. On 2 September 2014, the wife, unaware that the husband had filed for divorce in the City Z Court, filed a divorce application in the FCC.  This was rejected by the registry and a corrected divorce application was filed by the wife on 17 September 2014. 

14. The following day, that is 18 September 2014, the husband’s divorce petition first came before the City Z Court.  The husband’s lawyer in City Z appeared and established that the wife was not resident or present in the CU and the Court directed that she be notified of the proceedings by publication in an English newspaper.  The proceedings were adjourned to 14 October 2014.  The required notice was published in a newspaper.

15. On 14 October 2014 there was no appearance by the wife at the City Z Court, the proceedings were adjourned to 30 October 2014 and the husband was required to place another notice to the wife in the newspaper.  This was done on 23 October 2014 in the same newspaper as previously in both CU and English.

16. On the same day, the wife’s solicitors wrote to the husband’s Australian solicitors Watts McCray seeking acknowledgement of service of the wife’s divorce application.  The solicitors indicated they were not instructed to accept service.  On 17 October 2014 the wife’s divorce application was adjourned to 6 February 2015.

17. On 28 October 2014 the husband’s lawyers sent an email message to the wife serving her with the husband’s divorce documents.  This was at approximately 6.00 pm.  This indicated that they had “registered a case against [her] for divorce on behalf of [the husband]” and that “the next hearing will take place on October 30, 2014 at City Z Court, according we will submit our final statement asking the court to accept the divorce between [her] and [the husband].”  Sent with the email was an English translation of an accompanying document in CU to the effect that a divorce case had been instituted against her by the husband requesting the Court to order “forfeiture of all her matrimonial rights, as well as to also pay the Court fees and advocacy charges”.  This was the first the wife knew of the City Z proceedings.

18. The following day the wife’s solicitors wrote to the husband’s Australian solicitors requesting an adjournment. 

19. The next day, 30 October 2014, there was no appearance for the wife in the City Z Court.  This was in circumstances where she had been afforded approximately one day to endeavour to arrange a lawyer in City Z.  The Court appointed two arbitrators to endeavour to settle the dispute and adjourned the proceedings to 20 November 2014.

20. There were various emails between the wife’s solicitor and the husband’s City Z lawyer and the wife in early November.

21. On 2 November 2014 the husband’s City Z lawyers informed the wife’s solicitors that the wife would need to instruct her own lawyers in City Z to obtain documents filed in the husband’s case.

22. Meanwhile, on 11 November 2014, the wife’s solicitors wrote to the husband’s Australian solicitors seeking to use the Notice to Produce documents procedure pursuant to Rule 15.76 of the Family Law Rules 2004 to obtain production of all documents filed by the husband in the City Z proceedings at the forthcoming appeal in this Court.

23. On 20 November 2014 in the City Z Court there was no appearance by the wife and the Court again adjourned the hearing to 16 December 2014 and ordered the husband to notify the wife of the current status of the proceedings in an English newspaper.  The wife was made aware that 16 December 2014 was the adjourned day.

24. On 4 December 2014 the husband’s appeal was heard by this Court.  Nothing was said to indicate that the husband proposed soon to make submissions to conclude the City Z proceedings.

25. Also on 4 December 2014 the wife filed an Initiating Application seeking orders for property settlement and spousal and child maintenance.  The wife said this was served on the husband that day and the husband disputes this.  That application was listed for hearing on 3 February 2015.

26. On 8 December 2014 the wife endeavoured to instruct lawyers in City Z.  This involved the wife providing such lawyers with a power of attorney which she did subsequently. 

27. On 16 December 2014 there was no appearance on behalf of the wife in the City Z Court and the husband’s final statement was submitted to the Court by the husband’s lawyers.

28. On 8 January 2015 the husband was served with the wife’s Initiating Application which also sought interim orders.

29. On 27 January 2015 the husband’s Australian lawyers wrote to the wife’s solicitor requesting an adjournment of the interim hearing listed for 3 February 2015.

30. On 29 January 2015 apparently the City Z arbitrators prepared a report for the Court with a recommendation for the Court to accept the divorce and to confirm the Marriage Contract.

31. On 3 February 2015 Kent J made consent orders for interim child maintenance, his Honour released the husband from filing a financial statement for a couple of months and the Court was informed that the husband was still maintaining that Kent J had dismissed the wife’s property application when his Honour made the parenting orders on 19 November 2013.

32. On 6 February 2015 the husband filed a Response to the wife’s Divorce application disputing jurisdiction and indicating that there were proceedings on foot in City Z for “divorce and property settlement”.  The wife said that this was the first she knew that the husband was asserting that the City Z divorce proceedings included a property settlement.  The Response also indicated that the City Z proceedings had been adjourned to 26 February 2015.

33. The wife’s divorce application came before the learned registrar on 6 February 2015.  The Court was informed that there was a dispute in relation to forum and the application was adjourned to 17 February 2015 before Turner J.

34. On 17 February 2015 Turner J noted that there was a forum issue in relation to the wife’s divorce application and transferred the divorce proceedings to this Court.  It is listed before Hogan J on 2 March 2015.

35. The same day, the husband’s Australian solicitors consented to the application of the slip rule to correct the accidental dismissal of the wife’s property proceedings by Kent J.

36. The husband’s lawyer in City Z has indicated that it is expected that the City Z Court will deliver final judgment in respect of the divorce application and financial matters on 26 February 2015.

Submissions

The wife

1. The submissions by learned senior counsel for the wife were to the following effect. 

2. The husband has used every opportunity to delay the Australian proceedings while at the same time not informing the wife in a timely way about the existence of the proceedings in the City Z court and not assisting her by the provision of material in his case in the City Z proceedings.

3. There can be no question that the Court has power to order an anti-suit injunction. The Australian proceedings have been validly commenced, they involve matters within the definition of matrimonial cause in s 4 of the Family Law Act 1975 (Cth) (“the Act”), s 39 of the Act confers jurisdiction on this Court in respect of matrimonial causes, the wife is an Australian citizen and she is ordinarily resident in Australia and the parties have significant property in Australia.

4. The Court makes orders in personam.  Sub-section 31(2) provides for extra-territorial jurisdiction.  The Court has power over persons outside Australia which includes the husband.

5. This Court entertaining a financial proceedings in relation to which it has jurisdiction would not stay the exercise of its jurisdiction in circumstances where it could not be established that Australia is a clearly inappropriate forum.  There is nothing in the Australian proceedings which would persuade this Court to find that the proceedings are vexatious or oppressive, thereby bringing about a situation where Australia is in fact an inappropriate forum for determining the proceedings. 

6. The principles to be applied with respect to anti-suit injunctions are stated in the High Court decision of CSR Ltd v Cigma Insurance Australia (1997) 189 CLR 345 (“CSR case”). 

7. The normal principles in interlocutory relief apply – where prima-facie the jurisdiction is enlivened dealing with Australian property as a subject of a matrimonial cause, the Court would restrain the proceeding of any other action in respect of the same matter outside Australia pending a determination of the issue of forum.

8. There is no need in an anti-suit injunction to establish that steps have been taken in the foreign jurisdiction to stay the proceedings in that jurisdiction (see Lederer v Hunt (2007) FLC 93-311).

9. There can be no prejudice to the husband in granting an anti-suit injunction because he wishes to enliven the forum debate as set out in his Response filed on 13 February 2015.

10. Those representing the husband have provided the wife with misleading advice, the details of which were set out in the wife’s case outline.

11. The wife only became aware on 20 February 2015 that judgment was likely to be entered by the City Z court on 26 February 2015.

The husband

1. On the other hand the submissions by learned Queen’s Counsel for the husband were to the following effect.

2. The wife has the same rights as any litigant in City Z.  The husband provided her with all the City Z court documents yet she has done nothing and sat on her hands in relation to the City Z proceedings.

3. The relevant principles of law are set out in the CSR case.  Firstly, the Court should consider whether its own proceedings ought to be stayed.

4. The wife has had ample opportunity to protect her position.  It is inappropriate at this late stage for the wife to act in the manner that she is.  To grant the injunction would be to cause an injustice to the husband because the wife has not taken the appropriate steps.  A relevant consideration is delay and the wife’s delay has been unacceptable.  The wife should have instructed lawyers in City Z to represent her and she has had sufficient funds, despite her protests otherwise, to do so.  Rather, the wife has simply ignored the City Z proceedings.

5. The husband’s conduct has been impeccable.  He had the City Z court documents translated and served upon the wife notwithstanding that the City Z court orders did not require this and he agreed to postpone the hearing on two occasions to enable the wife to consider her position, and obtain representation in City Z.  When she did nothing, his City Z lawyers presented their final statements to the City Z court. 

6. Comity amongst courts requires that this Court would not interfere with the operation of the other court. 

7. The husband’s role is spent and the City Z court’s role now is to pronounce judgment – any injunction to be effective now must be to stop the City Z court proceeding to judgment.  In any event, the form of orders sought by the wife is now in the form of a mandatory injunction.  It does not make clear to the husband what it is that he has to do and he only has approximately 24 hours in which to achieve that. 

The Applicable Law

1. I accept that the relevant principles of law are as set out in the CSR case. 

2. I note at page 390 the majority said as follows:

   Although stay orders and anti-suit injunctions are not governed by the same principles, it will later become apparent that, in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings. And it will also become apparent that, in other cases, the power to grant anti-suit injunctions should not be exercised without the court concerned first considering whether its own proceedings should be stayed.

   The test which, in this country, governs a stay of proceedings in favour of proceedings in another country is as stated in Voth v Manildra Flour Mills Pty Ltd(1990) 171 CLR 538. In that case, this Court declined to adopt the more appropriate forum test laid down by the House of Lords in Spiliada Maritime Corp vCansulex Ltd[1987] AC 460 and accepted, instead, the test propounded by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay(1988) 165 CLR 197 at 242, 248, 251-255, namely, that a stay is only to be granted if the Australian court is a clearly inappropriate forum.

   It was pointed out in the joint majority judgment in Voth that it was common ground in the judgments of the majority in the earlier case of Oceanic Sunthat “the traditional power to stay proceedings ... on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice ... in the particular case”. 

Discussion

1. I accept that, as submitted by learned senior counsel for the husband, the first step is for this Court to consider whether the proceedings in this Court should be stayed.

2. In my view, there has been nothing put before this Court, at least at this stage of proceedings, which would persuade the Court to the view that the property proceedings in this Court are oppressive, vexatious or an abuse of process.  After all, the wife regularly invoked Australian jurisdiction by the filing of her initiating application seeking property orders in the FCC along with orders sought in respect of parenting.  Those proceedings were subsequently transferred to this Court.  It has not been suggested that the proceedings are in any way oppressive, vexatious or an abuse of process.  Accordingly, in my view this Court would not stay its proceedings.

1. The next question is whether this Court would exercise its jurisdiction to grant the anti-suit injunction.  The wife has established a prima facie case for a property settlement in this Court.  It is clear that there are a number of properties in Australia which would form part of the pool of available property.  The wife is an Australian citizen as is the child.  The child was born in Australia, the parties have spent time in Australia including the major part of a twelve month period during 2012.  And they have been involved in litigation about matrimonial matters in Australia.

2. It is not accepted by the wife that the husband has behaved in an impeccable way towards her so far as the City Z proceedings are concerned.  Despite the parties having been involved for some time in matrimonial proceedings, the wife did not become aware of the husband’s divorce petition in City Z until approximately three months after the date it was filed.  That was late October 2014.  It is true that there was ensuing correspondence by email between the husband’s City Z lawyer and the wife and between the wife’s Australian solicitor and the husband’s Australian solicitors, as well as between the wife’s Australian solicitor and the husband’s lawyer in City Z. 

3. I cannot accept that it was a simple matter for the wife to engage lawyers in City Z.  She pointed out in her affidavit difficulties in this, including that she had already spent a very considerable sum on legal costs in the Australian proceedings, she was endeavouring to engage lawyers in City Z to act for her and it was not a simple matter for her to endeavour to interpret the meaning of translated CU documents filed by the husband in the City Z proceedings. 

4. In all the circumstances I do not accept that the wife simply sat on her hands. 

5. It is true that the husband acted on her request to have the City Z proceedings adjourned on a couple of occasions.

6. I accept that the wife had no knowledge that the City Z court would be likely to deliver final judgment and make orders determining the proceedings in favour of the husband, until 20 February 2015. 

7. In the event that the Court declined to make the order for the anti-suit injunction, this would have the consequence of the rights between the parties in respect of divorce and matrimonial property being finalised.  Such a result in relation to matrimonial property would have the most serious consequences for the wife because it would appear that she would only receive the CU equivalent of approximately $25 000 whereas under Australian law she would be likely to receive a much more substantial settlement. 

8. On the other hand what prejudice would flow to the husband from granting an anti-injunction for a limited period?  It would mean that he would be required, in effect, to act in a manner which would cause a stay of the City Z proceedings.  The injunction would not operate as a permanent stay of those proceedings. 

9. The effect of granting such an injunction would be to preserve to this Court opportunity to further consider the forum argument on the basis that the anti-suit injunction could be granted for a very limited time, namely such time as would enable this Court to determine the forum issue. 

10. In weighing these considerations, in my view the appropriate outcome is for the injunction to be granted for a limited period.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 27 February 2015.

Associate:     

Date:              27 February 2015