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

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

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

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

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.

Continue reading CLAYTON & BANT NO 2

Details

AGLC: CLAYTON & BANT NO 2 [2015] FamCA 102
Case: [2015] FamCA 102
Decision Date: 27 February 2015

CaseChat Overview and Summary

The proceedings before Johnston J concerned an application by the husband to prevent the City Z Court from delivering findings or judgment in proceedings commenced on 15 July 2014. The specific nature of the dispute between the parties, beyond the husband's desire to halt the City Z Court proceedings, is not detailed.

The central legal issue before the court was whether it had the power to issue an injunction restraining the City Z Court from proceeding to judgment in the aforementioned matter. This involved considering the court's jurisdiction and the principles governing the granting of such injunctive relief, particularly in relation to foreign or interstate proceedings.

Johnston J ordered that the husband must take all necessary steps to request and prevent the City Z Court from delivering any findings or judgment in the proceedings 918/2014 until 4.00 pm on 2 March 2015. This order effectively granted a temporary stay or injunction on the foreign proceedings.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.