Costigan & Costigan - [2017] FamCA 879

FAMILY COURT OF AUSTRALIA

COSTIGAN & COSTIGAN AND ORS

[2017] FamCA 879

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Where proceedings are on foot in both Australia and Israel – Where the husband seeks a stay of proceedings in Australia until the determination of proceedings in Israel – Where Australia is not a clearly inappropriate forum – Application for stay dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – ANTI-SUIT INJUNCTION – Where the wife seeks to restrain the husband from continuing Israeli proceedings – Where the proceedings will concern the same issue being litigated in Australia – Where an anti-suit injunction is necessary to protect the integrity of this Court’s process – Application for anti-suit injunction granted.

Family Law Act 1975 (Cth)

CSR Ltd v Cigna Insurance Australia Lth (1997) 189 CLR 345
Henry & Henry (1996) 185 CLR 571
Kemeny & Kemeny (1998) FLC 92-806

Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
Spiliada Maritime Corp. v Consulex Ltd [1987] 1 AC 460
Teo v Guan [2015] FamCAFC 94; (2015) FLC 93-653

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538

APPLICANT:

Mr Costigan

FIRST RESPONDENT:

Ms Costigan

SECOND RESPONDENT:

THIRD RESPONDENT:

Mr A Costigan

Ms B Costigan

FILE NUMBER:

MLC

3981

2016

DATE DELIVERED:

2 August 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Carew J

HEARING DATE:

26 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson

SOLICITOR FOR THE APPLICANT:

Marshalls & Dent Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Upjohn QC with Ms Vohra

SOLICITOR FOR THE FIRST

RESPONDENT:

Kennedy Partners

COUNSEL FOR THE SECOND & THIRD

RESPONDENTS:

Mr Strum QC with Ms Renwick

SOLICITOR FOR THE SECOND & THIRD

RESPONDENTS:

Taussig Cherrie Fildes

Order

The husband’s application as contained in paragraph 1 of his Amended Response filed 22 March 2017 as further amended by leave, seeking a stay of the Initiating Application filed by the wife on 24 October 2016 as amended on 18 April 2017 and the Statement of Claim filed by the wife on 3 February 2017 (in so far as it seeks further orders) pending the determination of the parenting and property proceedings in Israel is dismissed.
Pending the determination of the proceedings in the Family Court of Australia between the husband and wife to alternatively set aside or enforce the financial agreement entered into between them on 14 May 2016 (“the Australian agreement”) and the determination of the proceedings in the Family Court of Australia between the wife and the second and third respondents, the husband is restrained and an injunction hereby issues restraining the husband from commencing or continuing any matrimonial proceedings (other than the current parenting proceedings) in Israel, save to the extent necessary to seek recognition and enforcement of any orders made by this Honourable Court in these proceedings.
In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if…

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 Costigan & Costigan

Details

AGLC: Costigan & Costigan [2017] FamCA 879
Case: [2017] FamCA 879
Decision Date: 2 August 2017

CaseChat Overview and Summary

In *Costigan & Costigan*, the parties were husband and wife. Proceedings concerning their marital dispute were on foot in both Australia and Israel. The husband sought a stay of the Australian proceedings until the determination of the Israeli proceedings, while the wife sought an anti-suit injunction to restrain the husband from continuing the Israeli proceedings. The matter came before Carew J.

The court was required to determine two principal issues. Firstly, whether Australia was a clearly inappropriate forum, which would necessitate a stay of the Australian proceedings. Secondly, whether an anti-suit injunction was necessary to protect the integrity of the Australian court's process, given that the Israeli proceedings concerned the same issues being litigated in Australia.

Carew J found that Australia was not a clearly inappropriate forum and therefore dismissed the husband's application for a stay of proceedings. However, the court determined that an anti-suit injunction was necessary to prevent the husband from pursuing parallel proceedings in Israel, which would undermine the jurisdiction and integrity of the Australian court's process. Accordingly, the application for an anti-suit injunction was granted.

Orders