Ewing and Ewing

[2019] FamCA 654

FAMILY COURT OF AUSTRALIA

EWING & EWING [2019] FamCA 654

FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision – Where the proceedings had been set down for hearing on the issues of forum and urgent interim financial relief – Where the husband sought a review on the basis that the forum issue should be addressed prior to hearing interlocutory issues – Where the parties owned assets in various countries – Application granted – Proceedings listed for a hearing regarding forum only.

APPLICANT: Mr Ewing

RESPONDENT: Ms Ewing

FILE NUMBER: SYC 3264 of 2019

DATE DELIVERED: 22 August 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 22 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M. Vohra SC

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr S. O’Ryan QC

SOLICITOR FOR THE RESPONDENT: Mills Oakley

Orders

1. By consent, without admissions and without a concession on behalf of the husband as to forum, and pending further order, orders are made in terms of the document titled “Consent Order” (Exhibit 1 dated 22 August 2019) as set out hereunder:

   1. That pending further Order on a without admissions basis, with no concession made as to forum and pursuant to section 114 of the Family Law Act 1975 (Cth):

   1.1The Husband and his agents be restrained by injunction from selling, transferring, encumbering, mortgaging or in any other way dealing with the following properties, except with the written consent of the Wife or by Order of this Court:

   1.1.1F Street, Town B NSW , being folio identifier …);

   1.1.2C Street, Suburb H NSW , being folio identifier …);

   1.1.3J Street, Suburb K QLD; and

   1.1.4M Street, Suburb D QLD.

   1.2The Husband and his agents be restrained by way of injunction from selling, assigning, disposing, alienating or encumbering any shares held in his sole name or jointly with any other persons or entities, without the written consent of the Wife or by Order of this Court save and except for the annual vesting of long term incentives, which shall be paid into the GBP account..

   1.3That the Husband be restrained by way of injunction from disposing of funds held in his N Bank GBP account.

   1.4The Husband and the Wife be restrained by way of injunction from entering into any loans or debit accounts in excess of $15,000, save and except for debits arising from the Husband’s work expenses for which he will be thereafter reimbursed, and any tax liabilities to be paid by the Husband without the written consent of the other party or by Order of this Court.

   2.      That the Husband and the Wife shall each forthwith and within twenty-four (24) hours file a written Undertaking as to Damages, in respect of the injunctive relief sought against the Husband and the Wife in accordance with Order 1 hereof.

   Until Further Order:

   3.      That the Husband provide to the Wife on the first day of each month a copy of his transaction history for the N Bank GBP and 360 accounts for the prior month.

   4.      That the Wife provide to the Husband on the first day of each month a copy of her transaction history for any of her personal bank accounts in Singapore (if any) and Westpac Bank account for the prior month.

2. The proceedings be listed for interim hearing, estimated time half a day, on 25 October 2019 in relation to anti suit injunctions/forum proceedings.

3. The parties provide to the chambers of Justice Loughnan and to each other a case outline document by the close of business on 21 October 2019 setting out the documents to relied on and the summary of the arguments to be made in relation to forum.

4. Any further affidavit evidence be filed and served not later than the close of business on 14 October 2019 or such later time as the parties agree on in writing.

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 Ewing & Ewing 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 SYDNEY

FILE NUMBER: SYC 3264  of 2019

Mr Ewing

Applicant

And

Ms Ewing

Respondent

REASONS FOR JUDGMENT

1. Before the Court are proceedings involving a dispute about forum.

2. The broad facts, as I understand it, involve the parties who have lived in different parts of the world, having significant assets in the United Kingdom, in n and in Australia.  I understand that the wife was born in Australia and although they are at or approaching maturity the parties’ children were born in Australia. 

3. There are family law proceedings here and in Singapore.  It is my understanding that the Singapore proceedings follow the pattern principal relief and associated relief. 

4. The matter came before a registrar who made a decision about the separate hearing of some of the interlocutory issues in the proceedings and an application has been made to review the decision of the registrar.  It is that application that has been listed today. 

5. Reviews of a registrar’s decision are heard de novo.  That is to say that the issue is heard afresh by a judge.  It is proposed on behalf of the wife that there be an interim hearing as to both forum and interim financial issues on 25 October 2019.  That is a date I have told the parties, is available.  The husband for his part would prefer that the matter proceed only as to the forum issue. 

6. The forum issue will or may determine whether the matter continues here at all.  If the proceedings are not to proceed in this Court, exploring aspects of the husband’s finances and the needs of the wife in terms of interim costs or interim spousal maintenance would be a waste of time and money.  So that is the dispute.  The husband wants to litigate the bare forum dispute and the wife seeks to take advantage of the day and deal with all interim issues in case she is successful with the forum application. 

7. There is no submission made to me about the strength of the forum argument.  I apprehend that an aspect of the wife’s case is the protocol about courts not embarking on proceedings about immoveables located outside their own jurisdiction, referred to as the Mozambique Rule.  That is relevant because the parties have real estate here.  As I understand it, the preponderance of the parties’ wealth might be in the United Kingdom.  Neither of the parties proposes that the Courts of England and Wales, for example should be the forum for their family law dispute.

8. We don’t have litigation about things that might not be relevant.  We do not know that interim costs, funding for litigation here, is going to be needed.  It is asserted on behalf of the husband and without complaint, that the wife has substantial funds available to her.  As to the law in relation to maintenance, if the Australian law is relevant, an applicant is not obliged to exhaust his or her own resources before seeking maintenance.  That said there is no automatic entitlement to interim maintenance.  On balance it seems to me that the better course is to deal with the forum issue alone.  If something else becomes urgent, then the Court can deal with that. 

9. The wife also seeks a number of injunctions in the nature of Mareva injunctions in respect of Australian assets.  Without admissions and on the basis of an undertaking as to damages, the husband and in some instances the husband and the wife, have agreed to a series of injunctions in relation to dealing with property of various sorts and in respect of raising funds.  Those matters have been compromised today, albeit on a without admissions basis and without conceding the forum issue.  That deals with the merit of those applications and with the urgency that might have been perceived to have applied to them.

10. It therefore seems to me that the matter should proceed on the next date as to forum only.   

I certify that the preceding ten paragraphs (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 22 August 2019.

Associate: 

Date:  13 September 2019