Eastgate and Cardiff & Anor

FAMILY COURT OF AUSTRALIA

EASTGATE & CARDIFF AND ANOR [2020] FamCA 387

FAMILY LAW – PROPERTY – FORUM – Where the parties are New Zealand citizens – Where the parties resided in Australia for 15 of their 20 years together – Where the wife established a discretionary Trust in New Zealand at or just prior to the commencement of the relationship – Where the Trust acquired property in New Zealand and Australia during the marriage – Where the wife is the one of two Trustees, but sole appointor and primary beneficiary of the Trust – Where that Trust is the owner of real property both in New Zealand and Australia – Where the parties are the joint owners of real property in Australia – Where the husband filed an Initiating Application seeking orders pursuant to Pt VIII and Pt VIIIAA of the Family Law Act 1975 (Cth) – Where the husband seeks to bring to account the property held by the Trust in proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the Trustees filed an application in the New Zealand Family Court seeking a declaration that neither the husband nor the wife have a personal interest in the Trust property – Where the wife and the Trustees seek a stay of the Australian proceedings to allow that application to be determined by a court in New Zealand.

FAMILY LAW – PROPERTY – FORUM – JURISDICTION – Where, pursuant to s 19(1)(a) of the Trans-Tasman Proceedings Act 2010 (Cth), the Court must be satisfied that the New Zealand court has jurisdiction to deal with the matters in issue – Consideration of s 7 of the Property (Relationships) Act 1976 (NZ) – Where s 7 of the Property (Relationships) Act 1976 (NZ) does not confer jurisdiction on a New Zealand court over “foreign immovable property” or “movable property” where the parties are not domiciled in New Zealand – Consideration of Samarawickrema v Samarawickrema [1994] NZFLR 913 – Where neither the wife nor the Trustees could cite authority for their submission that this Court could stay part of these proceedings to permit the New Zealand application to be decided – Where s 19 of the Trans-Tasman Proceedings Act 2010 (Cth) is to be read in the context of the entire Act and is not unclear, ambiguous or lacking clarity – Where the Court is not satisfied that a New Zealand court would have jurisdiction to deal with the matters in issue – Application dismissed.

FAMILY LAW – PROPERTY – DECLARATION OF APPLICABLE LAW – Where the wife and the Trustees sought, in the alternative, that this Court make a finding as to the applicable law to govern the Trust – Where no authority was cited to support the proposition that a judge hearing this application at an interlocutory stage has jurisdiction, or power, to make an order binding upon a trial judge who ultimately hears and determines this proceeding at a trial – Application of Pagliotti &…