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Ewing and Ewing (No 2)

Ewing and Ewing (No 2)

Case [2019] FamCA 804 4 November 2019

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FAMILY COURT OF AUSTRALIA

EWING & EWING (NO. 2)

[2019] FamCA 804

FAMILY LAW – JURISDICTION – Stay application – Where there are similar proceedings between the parties in a court in Singapore and in this Court – Where the husband seeks a stay of the proceedings in this Court – Where both parties have the required connections to each jurisdiction – Where both parties agree that either Court can adequately resolve the dispute – Application of the test set out in Voth v Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538 – Where the Court does not accept the husband’s contention that he would not be able to participate in the proceedings in this Court – Where the real property that is subject to the proceedings is located in Australia – Court finds that Australia is not a clearly inappropriate forum for the proceedings – Stay refused.

FAMILY LAW – INJUNCTION – Anti-suit injunction – Where the wife seeks an anti-suit injunction to prevent the husband from continuing the proceedings in Singapore – Where the parties agree that parallel proceedings should be avoided – Where the next court event for the proceedings in Singapore may assist with resolving the forum dispute – Anti-suit injunction refused.

Evidence Act 1995 (Cth) ss 76, 78

CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345
Henry v Henry (1996) 185 CLR 571
Navarro & Jurado (2010) 44 Fam LR 310
Spiliada Maritime Corp v Cansulex Ltd (1987) AC 460
Voth v Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538

APPLICANT:

Ms Ewing

RESPONDENT:

Mr Ewing

FILE NUMBER:

SYC

3264

2019

DATE DELIVERED:

4 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

25 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirk QC

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr Kearney SC

SOLICITOR FOR THE RESPONDENT:

Mills Oakley

Orders

The husband’s application for a stay of proceedings contained in the Application in a Case filed 2 July 2019 is dismissed.
The wife’s application that the husband be restrained in respect of proceedings between the parties in the Family Justice Courts of Singapore, contained in her Response to an Application in a Case filed 7 August 2019 is dismissed.

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: SYC3264 of 2019

Ms Ewing

Applicant

And

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 Ewing and Ewing (No 2)

Details

AGLC: Ewing and Ewing (No 2) [2019] FamCA 804
Case: [2019] FamCA 804
Decision Date: 4 November 2019

CaseChat Overview and Summary

In *Ewing and Ewing (No 2)*, the Family Court of Australia considered an application by the husband for a stay of proceedings before it, and a cross-application by the wife for an anti-suit injunction to restrain the husband from continuing parallel proceedings in Singapore. Both parties had connections to both jurisdictions, and both agreed that either court could adequately resolve their dispute.

The primary legal issue before the Court was whether Australia was a clearly inappropriate forum for the proceedings, applying the test established in *Voth v Manildra Flour Mills Pty Ltd and Anor*. The Court also considered whether an anti-suit injunction should be granted to prevent the husband from pursuing the Singapore proceedings, given the parties' agreement that parallel proceedings should be avoided.

Loughnan J found that the husband had not established that Australia was a clearly inappropriate forum. The Court rejected the husband's contention that he would be unable to participate in the Australian proceedings, and noted that the real property central to the dispute was located in Australia. Consequently, the husband's application for a stay was dismissed. Regarding the wife's application for an anti-suit injunction, the Court noted that the next court event in the Singapore proceedings might assist in resolving the forum dispute, and therefore refused the injunction.

Orders

Orders of the court

The husband’s application for a stay of proceedings contained in the Application in a Case filed 2 July 2019 is dismissed.

The wife’s application that the husband be restrained in respect of proceedings between the parties in the Family Justice Courts of Singapore, contained in her Response to an Application in a Case filed 7 August 2019 is dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Ewing and Ewing (No 2) [2019] FamCA 804

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 13 of 13 shown

Navarro v Jurado
[2010] FamCAFC 210 Para 5

…In relation to the different tests, in Navarro v Jurado (2010) 44 Fam LR 310 O’Ryan J observed at [127]: 1.The two tests are not identical and the difference lies in the emphasis placed on the appropriateness of the local forum rather than the appropriateness of any available foreign forum. The clearly inappropriate test…
Skinner & Alfonso-Skinner
[2010] FamCA 329 Para 3

…to be determined on discrete factors. Indeed, considerable caution must be exercised as is amply explained by Murphy J in Skinner & Alfonso-Skinner [2010] FamCA 329 @ #39-40: “ 39. There is, then, to my mind, a reasonable foundation for arguments in support of a contention that, in the usual course of events, this…
Van Londen v Dobson
[2005] HCATrans 1007 Para 2

…etween the Husband and Wife. Such an approach is consistent with that of the Full Court of the Family Court of Australia in Dobson v Van Londen (2005) FLC 93-225 where the Full Court considered that the trial Judge should have proceeded from a starting point of “unity” consistent with the decision of the High Court in Henry…
Regie Nationale Des Usines Renault SA v Zhang
[2002] HCA 10 Para 5

…ign forum. As the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) observed in Regie Nationale des Usines Renault SA and Another v Zhang [2002] HCA 10; (2002) 210 CLR 491 at 503: “Thus, it should at once be noted that a court is not an inappropriate forum merely because another is more appropriate”.…
CSR Ltd v Cigna Insurance Australia Ltd
[1997] HCA 33

…CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 Henry v Henry (1996) 185 CLR 571 Navarro & Jurado (2010) 44 Fam LR 310 Spiliada Maritime Corp v Cansulex Ltd (1987) AC 460 Voth v Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538…
Henry v Henry
[1996] HCA 51 Para 2

…he trial Judge should have proceeded from a starting point of “unity” consistent with the decision of the High Court in Henry v Henry (1996) FLC 92-685 at 83-124, where it was relevantly said that: The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital statu…
Voth v Manildra Flour Mills Pty Ltd
[1990] HCA 55

…each jurisdiction – Where both parties agree that either Court can adequately resolve the dispute – Application of the test set out in Voth v Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538 – Where the Court does not accept the husband’s contention that he would not be able to participate in the proceedings in this Court – Where the real p…
Union Steamship Company of New Zealand Limited v Ship Caradale
[1937] HCA 1 Para 2

…ens grounds. (emphasis added) 24.In Henry the majority extract a passage from Dixon J in Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277 at 281 (extracted at 83,123) before relevantly commenting that: [T]here is … inconvenience and embarrassment if the same issue is to be fought in the courts…
Spiliada Maritime Corp v Cansulex Ltd
[1986] UKHL 10 Para 4

…clearly inappropriate forum” test applied in Australia is different to the “more appropriate forum” test established by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd (1987) AC 460. Relevantly, the latter test is applied in Singapore.…
Carron Iron Co v Maclaren
30 ER 952 Para 2

…ehalf of the wife: Relevant principles – injunctive relief 21.The classic statement of the principle to be applied is that of the House of Lords in Carron Iron Co v Maclaren (1855) 5 HLC 416 (extracted with approval by the High Court in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 393) as follows: One well establi…
[1987] AC 45
[1987] AC 45 Para 3

…ing of the opposite party, and restrains the foreign proceedings”. … [I]n Bank of Tokyo Ltd v Karoon [[1987] AC 45 at 60] Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressiv…
(1987) AC 460
(1987) AC 460 Para 4

…ied in Australia is different to the “more appropriate forum” test established by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd (1987) AC 460. Relevantly, the latter test is applied in Singapore.…
(1895) 159 US 113
(1895) 159 US 113 Para 3

…“Cigna”) at 396, the plurality cited with approval the comments by the Supreme Court of the United States in Hilton v Guyot [1895] USSC 185 ; (1895) 159 US 113 in the following terms: ‘Comity’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will on the o…

Legislation cited in this decision · 4

Evidence Act 1995 (Cth)
76, 78 3 mentions (from Para 5)
Family Law Act 1975 (Cth)
1 mention (from Para 1)
Family Law Rules 2004 (Cth)
1 mention
Foreign Judgments Act 1991 (Cth)
1 mention (from Para 2)