Duan & Ren
[2024] FedCFamC1F 288
•29 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Duan & Ren [2024] FedCFamC1F 288
File number: SYC 2533 of 2024 Judgment of: CAMPTON J Date of judgment: 29 April 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) seeking orders as to property, spouse maintenance, and child support – Where the husband has commenced proceedings in Country B as to divorce, property orders, and cost orders – Where the wife seeks orders restraining the husband by injunction from dealing with specific assets – Where the husband contends that this Court has no jurisdiction to hear to the wife’s Initiating Application – Where the proceedings are adjourned part heard and interlocutory orders as made are to continue without prejudice. Legislation: Family Law Act 1975 (Cth) ss 4 and 39
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 25
Cases cited: CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345; [1997] HCA 33
Henry v Henry (1996) 185 CLR 571; [1996] HCA 51
Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2022] HCA 10
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 29 April 2024 Place: Sydney Counsel for the Applicant: Mr Berriman Solicitor for the Applicant: Alton Legal Counsel for the First Respondent: Mr Dura SC Solicitor for the First Respondent: Korn Tlais Defence Lawyers Counsel for the Second Respondent: Mr Reynolds Solicitor for the Second Respondent: JC Legal Practice ORDERS
SYC 2533 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DUAN
Applicant
AND: MR REN
First Respondent
MS MANDEL
Second Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
29 APRIL 2024
THE COURT ORDERS THAT:
1.The proceeding be adjourned part heard by way of Microsoft Teams to 2.15pm on 9 May 2024.
2.Orders 7 & 8 as made 11 April 2024 and without prejudice to either respondent continue until 5pm on 9 May 2024.
3.It be noted that Order 7 made 11 April 2024 continues pending further order pursuant to Order 6 made 26 April 2024.
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 the pseudonym Duan & Ren has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
Ms Duan (“the wife”) filed an Initiating Application on 5 April 2024 in the Federal Circuit and Family Court of Australia (Division 2), as amended on 12 April 2024, seeking orders as to adjustment of property, spouse maintenance, and child support, subsequent to her marriage to Mr Ren (“the husband”), entered in Country B in 2015. She contends separation between the parties occurred on 12 January 2024. It may be on the evidence that the husband puts the fact of separation into issue.
The parties are the parents of a child, X, who was born in 2019, and is currently five years old. X presently lives with the wife.
Uncontroversially, a provisional Apprehended Domestic Violence Order (“ADVO”) was taken out by the police in early 2024 for the protection of the wife and the child. The wife contends that since this time, neither she nor the child has received financial support from the husband. The husband in his affidavit said he entered a plea of guilty in relation to the Local Court proceeding. He has now changed that plea. That proceeding is listed in the Local Court for what appears to be a hearing in late 2024.
By way of a Response to an Initiating Application filed 24 April 2024, the husband objected to the jurisdiction of this Court to hear and determine the wife’s Amended Initiating Application. It was his primary contention that there is no jurisdiction for this Court to hear and determine the relief prosecuted. In the alternative, he asserts that this Court is not the appropriate forum to hear and determine the parties’ property adjustment dispute.
It is the husband’s evidence that he commenced divorce proceedings in Country B in early 2024, which includes relief for property and costs orders. He says that the wife has not engaged in the proceedings in Country B.
The wife broadly seeks, by way of interlocutory relief, orders restraining the husband by injunction from dealing with specified real property of the parties, including a property at C Street, Suburb D. It is her evidence that she and the child are currently occupying the property and that the husband is either directly or indirectly forcing she and the child to cease living there.
The second respondent, Ms Mandel, was joined by way of orders made on 26 April 2024. She is a person with whom the husband has previously acquired property and continues to hold in Australia, specifically E Street, Sydney.
The urgent interim Application in a Proceeding was initially listed before a Senior Judicial Registrar on Friday 26 April 2024, and then listed before me today on Monday 29 April 2024. It centres upon interlocutory injunctive orders as sought by the wife to preserve the subject matter of the litigation pending a forum determination where jurisdiction is contested (Norton & Locke (2013) FLC 93-574).
It is the husband’s case that his relief has two bases. The first is that this Court has no jurisdiction, and in the alternative, Australia is an inappropriate forum. He contends that complete relief between he and the wife is available in the foreign forum, being Country B.
It is not the subject of dispute after exchange during the hearing today that this Court has power to make injunctive orders whilst jurisdiction is the subject of dispute.
Does this Court have jurisdiction?
The wife bears the onus of establishing the factual matters that ground the jurisdiction of this Court.
The substantive relief the wife seeks falls within the definition of “matrimonial causes” as contained in s 4 of the Family Law Act 1975 (Cth) (“the Act”), including as to the adjustment of property, spousal maintenance, and child support. Additionally, joinder of a third party is also a “matrimonial cause” pursuant to s 4 of the Act.
Section 39(4) of the Act provides:
39 Jurisdiction in matrimonial causes
…
(4) Proceedings of a kind referred to in the definition of matrimonial cause in subsection 4(1), other than proceedings for a divorce order or proceedings referred to in paragraph (f) of that definition, may be instituted under this Act if:
(a) in the case of proceedings between the parties to a marriage or proceedings of a kind referred to in paragraph (b) of that definition in relation to a marriage—either party to the marriage is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date; and
(b) in any other case—any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date.
…
Pursuant to s 4 of the Act, the “relevant date” is the date the Initiating Application was filed. It is uncontroversial that the wife was present in Australia since December 2023 and was present in Australia on the relevant date, being when the Initiating Application was filed on 5 April 2024.
Jurisdiction in the Federal Circuit and Family Court of Australia (Division 1) was conferred upon the transfer of the matter from Division 2 on 26 April 2024, pursuant to s 25 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
I hence find that this Court has jurisdiction to hear and determine the wife’s Amended Initiating Application. The question then becomes whether the Court should exercise jurisdiction, or whether it should declare Australia as forum non conveniens.
As identified during exchanges today, the mere existence of proceedings in two different countries at the same time does not in and of itself constitute vexatious or oppressive conduct, as identified in both Henry v Henry (1996) 185 CLR 571 (“Henry”) and CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345.
Importantly, in Henry, identification as to whether the same issue is to be determined in different countries, according to different regimes, producing what may be entirely different outcomes, may pivot any exercise of discretion as to forum. Putting it a different way, identification of the same controversy to be determined in two different forums is often a very significant factor to consider in determining whether Australia is a wholly inappropriate forum.
It may well be that by way of discussion between the legal representatives of the husband and the wife, that it is identified that different issues are involved in the local and in the foreign proceedings.
The second respondent at this time does not wish to be heard in relation to the forum issue.
The parties will no doubt consider what was said by the High Court in Henry, including whether each forum will recognise the other’s orders and decrees, the stages the respective proceedings have reached in each forum, and the connection of the parties to each jurisdiction. I also identify, for the purposes of discussion between the parties, the assistance provided to trial judges on the subject matter of forum by the High Court in Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 520.
The matter was listed on short notice before me today in circumstances where I had limited time available to hear and determine the outstanding interlocutory disputes. It is agreed that it is appropriate to allow the parties to distil the matters that have been the subject of exchange over the course of the hearing today and that they have an opportunity to further consider the conduct of the litigation either in this forum or in Country B.
It appears to be not inconvenient to all parties for the proceedings to be adjourned for a hearing by Microsoft Teams on 9 May 2024.
In the circumstances, I make the orders as set out at the start of these reasons.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 29 April 2024
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