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	of		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

1. 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.

2. 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.

3. In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to the said Application:

   (a)       Each party file within a further 14 days written submissions in respect of that issue; and

   (b)       Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.

4. In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via e-mail to the Associate to Justice Carew.

5. All extant applications be adjourned for mention to a date to be advised.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3981 of 2016

Mr Costigan

Applicant

And

Ms Costigan

First Respondent

And

Mr A Costigan

Second Respondent

And

Ms B Costigan

Third Respondent

REASONS FOR JUDGMENT

1. The applicant and first respondent are husband and wife and the second and third respondents are the husband’s parents.

2. There are current proceedings on foot in Israel as between the husband and wife relating to parenting and financial matters and current proceedings on foot in this Court as between the husband and wife and the husband’s parents relating to financial matters, namely, the wife’s claim that certain proceeds of sale of a property at C Town in Australia are held by the husband’s parents on trust for her and the husband (“the C Town proceeds”).

3. The husband seeks a stay of the proceedings in Australia until the determination of the proceedings in Israel.

4. The wife resists the stay and in turn seeks an anti-suit injunction against the husband proceeding with his Israeli proceedings pending the determination of the proceedings in Australia save for the proceedings in Israel relating to parenting issues.

background

1. The husband is forty-five years of age and was born in Australia although he has dual Australian/Israeli citizenship. He is a qualified professional and practises in both Australia and Israel.

2. The wife is forty-six years of age and was born in Israel although she has dual Israeli/Australian citizenship. 

3. The husband and wife married in 2001 and separated on or about 1 March 2016.

4. The husband and wife have three children aged 14, 13 and 9 respectively. The husband and wife lived in Australia from late 1999 until August 2011. They and their children have lived in Israel since August 2011.

5. The second and third respondents live in Australia.

6. The husband has re-partnered with Ms D and they live together in Israel.  Ms D is expecting their first child together in October 2017. Ms D has two other young children. The husband contends it will be difficult for him to leave Ms D to conduct proceedings in Australia.

7. The husband and wife entered into a financial agreement in Israel on 11 April 2016 (“the Israeli agreement”) resolving their dispute in relation to the care arrangements for their children; child support and division of property. As a result of owning real property in Australia they also agreed to enter into a financial agreement in Australia. In the Israeli agreement the C Town property[1] was dealt with as an asset of the parties.

   [1] The property has since sold and is referred to herein as the C Town proceeds.

8. The husband and wife travelled to Australia with their children on 14 April 2016. The husband commenced property and maintenance proceedings in Australia on 5 May 2016.

9. While in Australia, the husband and wife entered into another financial agreement on 14 May 2016 (“the Australian agreement”). By its terms the Australian agreement incorporated and amended the Israeli agreement. In the Australian agreement the C Town property was dealt with as a financial resource of the husband’s.

10. The husband, wife and children returned to Israel on 15 May 2016.

11. On 1 August 2016 the husband discontinued his proceedings in Australia.

12. On 18 August 2016 the wife filed an application to the Rabbinical Court in Israel to temporarily restrain the husband from leaving Israel and to obtain a Jewish divorce – a GET. [2]

    [2] The husband alleges that the proceedings commenced by the wife in the Rabbinical Court also concerned the agreements but even on his case the wife could not file a claim until the parties had engaged in mediation.

13. On 12 September 2016 the Rabbinical Court in Israel ordered a GET and dissolved the marriage of the husband and wife. There are no pending proceedings in the Rabbinical Court.

14. The principal assets of the parties are in Australia and comprise:

    a)The real property at E Street, Suburb F, Victoria;

    b)The sale proceeds of the property at G Street, Suburb H, Victoria; and

    c)The wife’s claimed interest in the C Town proceeds which are currently invested on behalf of the husband’s parents.

15. There are no substantial assets in Israel and no real property.

16. On 24 October 2016 the wife commenced proceedings in the Family Court of Australia in which she sought the following:

    a)An order and declaration that the husband’s parents hold the C Town proceeds on trust for the husband and the wife;

    b)An order that the husband and wife use the C Town proceeds to implement the Australian agreement;

    c)Enforcement of the Australian agreement;

    d)An injunction seeking to restrain the husband from commencing proceedings in Israel.

17. On 28 November 2016 the husband filed a Response to the wife’s Australian proceedings in which he sought to have the wife’s application dismissed.

18. Also on this date the husband’s parents filed a Response to the wife’s Australian proceedings seeking to dismiss her claim against them.

19. On 30 November 2016 the wife was ordered to file a Statement of Claim in relation to the proceedings against the husband’s parents.

20. Over a number of months the parties engaged in the process of discovery of documents relevant to the issues in dispute.

21. On 3 February 2017 the wife filed her Statement of Claim and affidavits of evidence in chief.

22. On 22 March 2017 the husband filed an amended Response to the wife’s Australian proceedings in which he sought a stay of the wife’s proceedings in Australia and if unsuccessful that her Statement of Claim against his parents be dismissed and for the Australian agreement to be set aside.[3]

    [3] Although paragraph 3 of the Amended Response does not state that it is conditional upon the husband not succeeding with his Stay application his counsel informed the court that it was intended to do so.

23. Also on that date the husband commenced proceedings in the Israeli Family Court in which he sought a parenting order and the annulment of the Israeli agreement and the Australian agreement. The husband contends he did not understand the Israeli agreement as it was written in Hebrew; he did not have legal advice and that the wife put him under pressure to sign the agreement. In relation to the Australian agreement he contends that the wife endeavoured to ‘bludgeon’ him into signing it and made various threats.

24. On 3 April 2017 the husband’s parents filed their Defence to the wife’s claim and affidavits of evidence in chief.

25. On 18 April 2017 the wife sought an anti-suit injunction against the husband in relation to his Israeli proceedings.

26. On 15 May 2017 the wife filed a defence in the Israeli Family Court seeking an alternate parenting order; a dismissal of the proceedings relating to the financial agreements on the basis the court lacks authority or alternatively a stay pending a decision of her Australian proceedings.

27. On 4 July 2017 the Honourable Justice Cronin, Family Court of Australia, ordered the husband to instruct his Israeli lawyers to adjourn the Israeli proceedings (save with respect to parenting matters) until after the conclusion of the Australian (stay) hearing.

28. On 5 July 2017 the court in Israel made a parenting order and adjourned the financial matters to the 18 October 2017.

29. The wife has incurred legal fees in the Australian proceedings of $100,000.

30. An obligation created in the Australian agreement was for the parties to take all reasonable steps to have the Israeli agreement endorsed by the court in Israel. That has not occurred.

31. As the Israeli agreement was amended by the Australian agreement neither party are contending for the Israeli agreement in its original form to be enforced.

32. The wife argues that the Australian agreement is a ‘stand-alone’ agreement incorporating the Israeli agreement (as amended) and therefore capable of immediate enforcement. The husband argues that the Australian agreement is not enforceable until the Israeli agreement has been endorsed by the court in Israel.

33. The husband’s parents argue that until there has been a determination that the financial agreement/s between the husband and wife are binding and enforceable their involvement in the proceedings is premature.

The Israeli agreement

1. Relevant clauses in that agreement include:

   6. The parties declare that they are aware that the jurisdiction of the Family Court [in Israel] is territorial, and does not apply to assets situated in Australia, and they shall draw up and sign an agreement in Australia with suitable arrangements as agreed upon in the mediation process with regard to the assets in Australia.

   34.1 It is agreed that the City J Family Court in Israel shall have sole and exclusive local and material jurisdiction to adjudicate upon the parties’ affairs, and it shall adjudicate in accordance with Israeli law also with regard to assets in Australia.

   36.7 Upon the return of the parties to Israel, the Australian agreement will be attached to this agreement as an integral part thereof, and if necessary this agreement shall be adapted to the Australian one, and shall then be notarially translated into English, and the parties will sign it and the agreement shall be submitted for the confirmation of the K Family Court.

The Australian agreement

1. Relevant clauses in that agreement include:

   J. The husband and wife acknowledge as part of the Binding Israeli Financial Agreement that the Family Court in Israel is a local jurisdiction which has jurisdictional restrictions on enforcing the Binding Israeli Financial Agreement in Australia against Australian property or against a party to the marriage who may decide to reside in Australia.

   K.(c) That the husband and wife will submit the Israeli Binding Financial Agreement to the local Family Court in Israel for endorsement which will give the Binding Israeli agreement a force of a judgment and by so doing recognising this agreement as binding.

   M. The husband and wife recognise that it is necessary to amend the Binding Israeli Financial Agreement …

   N. The husband and wife are desirous to enter into this financial agreement … to recognise and endorse the Binding Israeli Financial Agreement, as amended by this Agreement, and ensure that together the Binding Israeli Financial Agreement and this agreement:

   (a) exclusively define and govern their respective financial rights and responsibilities towards each other …

   (b) define and govern the financial arrangements to apply between the parties in relation to their Australian properties as set out in Appendix A … and as provided for in this agreement;

   (c) define and govern the agreed financial arrangement between the parties in relation to the care and support for the children …

   P. The husband and wife agree that this Agreement together with the accepted translation of the Binding Israeli Financial Agreement, as amended by this Agreement, form the entire agreement between the parties in relation to the subject matters;

   Q. The husband and wife agree that the Binding Israeli Financial Agreement, will be amended in accordance with paragraph 16 and Schedule “C” of this Agreement but as contemplated by the parties in Recital K herein, the Binding Israeli Financial Agreement will be filed with the Israeli Court for endorsement.

   3. This Agreement shall be binding upon the parties hereto and upon their legal personal representatives, including their respective heirs, executors, administrators and assigns.

   9. The parties submit exclusively to the jurisdiction of the Family Court of Australia in respect of all matters, assets, rights and obligations of the parties in so far as their assets are located in Australia and or the party is residing in Australia.

   11. The parties submit exclusively to the jurisdiction of the courts in Israel in respect to enforcing any obligations or rights of the parties arising under the Binding Israeli agreement.

Evidence from the Israeli lawyers

1. Each party relied upon evidence as to the law in Israel and jurisdiction to hear and determine the dispute between the parties. There was objection taken to the wife relying on certain recent affidavits from her Israeli lawyer but ultimately it was submitted on behalf of the wife that reliance on those later affidavits was not necessary because the husband’s application will fail at the ‘first hurdle’ i.e. because he is unable to prove that Australia is a clearly inappropriate forum. 

2. The Israeli lawyers disagreed on a number of matters but agreed on the following:

   a)The Israeli court has jurisdiction to hear the dispute between the husband and wife;

   b)The Israeli court could not make orders affecting property in Australia but could make an order binding the husband and wife personally;

   c)It is possible that if the husband’s parents were served with an application commenced by the wife against them in Israel, the court in Israel would exercise jurisdiction to determine that dispute. However, the wife’s lawyer considered it unlikely that the court in Israel would hear that dispute because the husband’s parents live in Australia and the C Town proceeds are invested in Australia. 

   d)It is likely that an Israeli court would recognise and enforce an order made by the Family Court of Australia, although the husband’s Israeli lawyer opined that there was a possibility that such an order may not be recognised given the husband’s objection to the Court in Australia exercising jurisdiction.

Applicable principles in determining the stay application

1. It is not in contention that the Court has the power to stay its own proceedings. As noted by the High Court in Voth v Manildra Flour Mills Pty Ltd[4]

   …the traditional power to stay proceedings which have been regularly commenced, 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 between parties in the particular case.

   [4] [1990] HCA 55 at [30]; (1990) 171 CLR 538

2. There is no doubt that this Court has jurisdiction to deal with the wife’s application for enforcement of the Australian agreement.[5] The question is whether the Court should exercise that jurisdiction.

   [5] See s 39 Family Law Act 1975 (Cth)

3. To determine that question, the appropriate test is whether or not this Court is a ‘clearly inappropriate forum’[6] and the husband bears the onus of establishing that to be so.[7]

   [6] Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 at [51]; (1990) 171 CLR 538; Henry & Henry (1996) 185 CLR 571

   [7] Voth v Manildra Flour Mills Pty Ltd (supra) at [51] & [31], [50]-[52]; Henry & Henry (supra)

4. The High Court in Voth [8] adopted as correct the following description of the test articulated by Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay[9]:

   ... it is possible to identify in summary form what I see as the modern content of the traditional principles governing the power of a court in this country to order that proceedings which have been regularly instituted within jurisdiction should be dismissed or stayed on inappropriate forum grounds. That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff. Otherwise, that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties.

   and

   "oppressive" should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while "vexatious" should be understood as meaning productive of serious and unjustified trouble and harassment.

   [8] supra at [51]

   [9] (1988) 165 CLR 197 at 247, 248

1. Relevantly, the High Court in Voth (supra) also held:

   36. … the question which the [clearly inappropriate forum] test presents … focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums. That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum….

   37. The availability of relief in a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one. But such a decision neither turns upon an assessment of the comparative procedural or other claims of the foreign forum nor requires the formation of subjective views about either the merits of that forum's legal system or the standards and impartiality of those who administer it.

   …

   42. … In deciding whether to grant or refuse a stay, the court does not, indeed cannot, evaluate the justice or relative merits of the substantive laws of the available forums (including the chosen forum)….

2. In the application of the ‘clearly inappropriate forum’ test the High Court in Voth accepted that the discussion by Lord Goff of Chieveley in Spiliada Maritime Corp. v Consulex Ltd[10] in relation to relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ “provides valuable assistance”.[11]

   [10] [1987] 1 AC 460 at 477- 478 and 482 - 484

   [11]Voth (supra) at [51]

3. Lord Goff relevantly stated:

   … So it is for connecting factors in this sense [that with which the action had the most real and substantial connection] that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as … the places where the parties respectively reside or carry on business. [12]

   (citation omitted)

   And further:

   Clearly, the mere fact that the plaintiff has such an advantage [a legitimate personal or juridical advantage] in proceedings [in the local forum] cannot be decisive.[13]

   [12] At page 478

   [13] At page 482

4. In the current case, even if Israel is a more appropriate forum it does not follow that Australia is a clearly inappropriate forum.[14]

   [14] Voth (supra) at [66]

Is Australia a clearly inappropriate forum?

1. Australia will be a clearly inappropriate forum if a continuation of the proceedings will be oppressive in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment", to the husband.[15] Many factors will be relevant to that enquiry.

   [15] Henry (supra) at 587

Factors favouring proceedings continuing in Australia

1. Those factors include:

   a)The wife has regularly invoked the jurisdiction of the Family Court of Australia and was first in time (not that time is determinative);

   b)The husband himself elected to commence proceedings for property settlement in Australia in May 2016;

   c)The husband participated in the current proceedings in Australia (which were commenced by the wife in October 2016) without demur, until March 2017;

   d)The wife has incurred legal fees of $100,000 to date in relation to the current proceedings in Australia;

   e)The husband and wife are both Australian citizens;

   f)The husband and wife married in Australia and lived the majority of their lives in Australia;

   g)The major assets are in Australia;

   h)The husband maintains an architect practice in Australia and travels here for the purpose of undertaking projects in Australia;

   i)The husband’s parents live in Australia and the C Town proceeds are invested in Australia;

   j)There is real property and other invested sale proceeds in Australia;

   k)In order to ascertain what property there is to divide and what property is available to provide child support requires a determination of the proceedings by the wife against the husband’s parents who live in Australia;

   l)Those proceedings are well under way;

   m)The prospective witnesses in any financial proceedings are overwhelmingly in Australia;

   n)The proceedings in relation to the binding nature and enforceability of the Australian agreement are required to be determined in accordance with Australian law wherever they are heard;

   o)It is argued by the wife that the Australian agreement was immediately enforceable upon execution and is a ‘stand-alone’ agreement although it incorporates and amends the Israeli agreement.

   p)The wife has an outstanding claim for discovery of the husband’s file with his former lawyers, L Lawyers, given the husband’s application to set aside the Australian agreement is based on duress. The wife also has an outstanding claim for discovery against the husband’s parents in relation to communications relating to the C Town proceeds. The wife can more easily prosecute such matters in Australia and/or seek that the file of L Lawyers and other documents be subpoenaed if discovery is not forthcoming;

   q)There are juridical advantages for the wife in prosecuting the proceedings in Australia e.g. the ability to have the claim to enforce the Australian agreement and the claim against the husband’s parents dealt with in the one proceeding; ease of enforcement including s 106A of the Act and the matters referred to in the preceding sub-paragraph;

   r)The husband complains about his limited ability to understand Hebrew so conducting the proceedings in English in Australia will be to his advantage;

   s)The husband and wife agreed in the Australian agreement that all proceedings relating to it would be heard in Australia.

Factors that favour a stay of the Australian proceedings

1. Those factors include:

   a)It is argued by the husband that as the Israeli agreement is first in time and is an integral part of the ‘whole’ agreement between the parties i.e. the Israeli and Australian agreements, his proceedings in Israel should proceed in preference to the wife’s;

   b)It is argued by the husband that both agreements require the endorsement of the Israeli court before they are binding;

   c)The husband and wife and their children live in Israel;

   d)The husband’s parents visit Israel from time to time and support the husband’s application for a stay (although the husband’s parents have not stated that they will submit to the Israeli jurisdiction);

   e)The husband’s partner is about to have a baby in Israel and her young children live in Israel;

   f)The parties are in agreement that parenting proceedings should continue in Israel.  

Conclusion on whether Australia is a clearly inappropriate forum

1. There are many factors favouring the proceedings continuing in Australia as noted above. In particular, the husband has not brought his application for a stay promptly. In fact, the husband participated in the Australian proceedings for many months before seeking a stay. The wife has incurred significant legal costs in prosecuting the Australian proceedings. The husband’s parents live in Australia and have participated in the proceedings to date despite the submission that their joinder was premature. The husband himself previously commenced proceedings in Australia although he and the wife lived in Israel. There is some uncertainty about whether the court in Israel could or would deal with the dispute as between the wife and the husband’s parents. An order made in Australia is likely to be registered in Israel. The fact that there will be proceedings about parenting in Israel and financial proceedings in Australia is not itself sufficient to find Australia to be a clearly inappropriate forum.[16]

   [16] Kemeny & Kemeny (1998) FLC 92-806

2. In my view this is not a clear case justifying a stay and I have come to the conclusion that the Family Court of Australia is not a clearly inappropriate forum. Accordingly, I propose to dismiss the husband’s application for a stay.

the anti-suit injunction

1. It is not in contention that this Court has power to grant an anti-suit injunction.[17] 

   [17] Teo v Guan [2015] FamCAFC 94; (2015) FLC 93-653; CSR Ltd v Cigna Insurance Australia Lth (1997) 189 CLR 345

Applicable principles in determining anti-suit injunction

1. While the applicable principles in determining an ‘anti-suit injunction’ are not the same as determining a forum non conveniens argument,[18] the High Court in Henry[19] said:

   … the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.

   [18] (1997) 189 CLR 345

   [19] (supra) at 591

2. As to purpose of an anti-suit injunction the High Court in CSR Ltd v Cigna Insurance Australia Ltd said:[20]

   The counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. … a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court.

   The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court’s own proceedings or processes.

   (footnotes omitted)

   [20] CSR Ltd v Cigna Insurance Australia Lth (1997) 189 CLR 345

3. Of course, the question of whether or not an anti-suit injunction should be granted only arises if both countries have jurisdiction over the same matter. If there is doubt about whether the foreign court has jurisdiction it may be necessary to adjourn the application for an anti-suit injunction.[21] It is not suggested that jurisdiction, as opposed to forum, is in issue in the present case.

   [21]Henry (supra)

Factors relevant to the exercise of discretion

1. There are a number of relevant matters including:

   a)If the husband is not restrained there will be two courts dealing with the an identical issue i.e. whether the Australian agreement (which incorporates and amends the Israeli agreement) should be set aside or enforced, with the potential for different outcomes on the same issue;

   b)If the husband is not restrained there will be two courts dealing with the same controversy i.e. whether the dispute between the husband and wife in relation to financial matters has been resolved by the entering into  financial agreement/s with the potential for different outcomes on the same issue;

   c)All parties participated in the Australian proceedings for many months;

   d)All parties have Australian lawyers;

   e)The husband’s parents live in Australia;

   f)The wife does not seek any order in relation to the Israeli agreement other than for the husband to apply to the Israeli court to have it endorsed;

   g)The wife submits that the Australian agreement is a ‘stand-alone’ agreement while incorporating and amending the Israeli agreement;

   h)The wife sought an anti-suit injunction against the husband as early as 24 October 2016;

   i)The Australian agreement deals with both property and child support and is closely linked to the ascertainment of the property pool (which depends on the determination of the claim against the husband’s parents) e.g. the Australian agreement requires the husband and wife to use the C Town proceeds to purchase property in Israel for each of the children. 

2. In summary the husband in the present case is seeking to proceed with proceedings in Israel which concern substantially the same issues being litigated in Australia. To permit the continuation of the proceedings in Israel relating to the setting aside of the Australian agreement and the Israeli agreement would be oppressive and vexatious in the Voth sense. Further, as the proceedings will proceed in Australia an anti-suit injunction is necessary to protect the integrity of this Court’s processes.

Conclusion on the anti-suit injunction

1. For the reasons identified I propose to grant the wife’s application for an anti-suit injunction against the husband pursuing the proceedings in Israel save those proceedings relating to parenting.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 2 August 2017.

Associate:

Date:  02 August 2017