Fertig & Bosque

Case [2024] FedCFamC1F 634

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fertig & Bosque [2024] FedCFamC1F 634

File number: MLC 6891 of 2024
Judgment of: MCNAB J
Date of judgment: 12 September 2024
Catchwords: FAMILY LAW – JURISDICTION – Ex tempore reasons – Whether the Court is a clearly inappropriate forum – Where the father resides in Country B – Where the mother and children reside in Australia – Where the Court finds that this Court is not a clearly inappropriate forum.  
Legislation: Family Law Act 1975 (Cth) ss 4, 39, 69E, 79
Cases cited:

Henry & Henry [1996] HCA 51

Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55

Whung & Whung [2011] FamCA 137

Division: Division 1 First Instance
Number of paragraphs: 47
Date of hearing: 12 September 2024
Place: Melbourne
Counsel for the Applicant: Mr Mellas
Solicitor for the Applicant: Pearsons Lawyers Pty Ltd
Counsel for the Respondent: Mr Foo
Solicitor for the Respondent: Wiin Lawyers

ORDERS

MLC 6891 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS FERTIG

Applicant
AND:

MR BOSQUE

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

12 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The Husband be restrained by injunction from continuing, issuing or proceeding with his application for divorce, property division and parenting orders in Country B.

2.The Wife’s costs be reserved.

3.The matter be listed before the Hon. Justice McNab for directions hearing on 15 October 2024 at 9.30am by Microsoft Teams.

4.By 4.00pm on 10 October 2024, each party email chambers a proposed Minute of Orders they seek to rely upon at the directions hearing on 15 October 2024.

AND THE COURT NOTES THAT:

A.The parties are not required to attend the direction hearing.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Fertig & Bosque has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

MCNAB J

  1. By an Amended Initiating Application filed by the wife on 12 August 2024, the wife seeks orders restraining the husband from taking any further steps in proceedings issued by him in Country B in relation to matrimonial property and parenting proceedings. The parties are both citizens of Country B. They married in…

Continue reading Fertig & Bosque

Sign in free to access the full text

Details
AGLC
Fertig & Bosque [2024] FedCFamC1F 634
Case
[2024] FedCFamC1F 634
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Fertig, the wife, filed an Amended Initiating Application on 12 August 2024, seeking to restrain Mr Bosque, the husband, from continuing with proceedings he initiated in Country B concerning matrimonial property and parenting issues. Both parties are citizens of Country B, having married there in 2003 and separated in Australia on 26 April 2024. The wife resides in Australia with their four children, while the husband resides in Country B. The wife seeks an injunction to halt the husband's proceedings in Country B, focusing on property and parenting matters. The legal issues before the court were whether the Australian court had the jurisdiction to restrain the husband's proceedings in Country B and whether the Australian court was an inappropriate forum for resolving the dispute.

The court considered that the husband's desire to pursue property division and parenting orders in Country B raised significant enforcement issues, particularly given the substantial assets held in Australia. The court reasoned that the husband's requests for property adjustments in Australia, including a 50% share of the C Street property, the business bond, and shares in F Pty Ltd and G Pty Ltd, could be difficult to enforce in Country B. The wife, on the other hand, sought to retain properties in her name in Country B without requiring enforcement of Australian court orders. The court found that the Australian court was not a clearly inappropriate forum, given the significant assets in Australia and the potential enforcement challenges in Country B. Therefore, the court granted the wife's application for an injunction to restrain the husband from continuing with the proceedings in Country B.

The court ordered that the husband be restrained by injunction from proceeding with his application for divorce, property division, and parenting orders in Country B. The wife's costs were reserved, and the matter was listed for a directions hearing on 15 October 2024. Each party was required to submit a proposed Minute of Orders by 4.00pm on 10 October 2024. The parties were not required to attend the directions hearing.

Orders

Orders of the court

MLC 6891 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FERTIG

Applicant

AND:

MR BOSQUE

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

12 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The Husband be restrained by injunction from continuing, issuing or proceeding with his application for divorce, property division and parenting orders in Country B.

2. The Wife’s costs be reserved.

3. The matter be listed before the Hon. Justice McNab for directions hearing on 15 October 2024 at 9.30am by Microsoft Teams.

4. By 4.00pm on 10 October 2024, each party email chambers a proposed Minute of Orders they seek to rely upon at the directions hearing on 15 October 2024.

AND THE COURT NOTES THAT:

A. The parties are not required to attend the direction hearing.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

By an Amended Initiating Application filed by the wife on 12 August 2024, the wife seeks orders restraining the husband from taking any further steps in proceedings issued by him in Country B in relation to matrimonial property and parenting proceedings. The parties are both citizens of Country B. They married in Country B in 2003 and separated in Australia on 26 April 2024. The wife was born in 1983, aged 41 years, and the husband was born in 1977, aged 46 years. The parties have four children.BACKGROUND The parties commenced residing in Australia in late 2021 on a Provisional Visa (“the Provisional Visa”). The wife wishes to continue to reside in Australia and is eligible to apply for permanent residency in 2025. She is not currently employed and has the care of the four children aged 20, 17, 11 and 8. The parties applied for the Provisional Visa in 2019, and it was granted in 2021. The three younger children are at school and the eldest graduated from university in 2024. The wife says that her and the children have lived in a property at C Street, Suburb D (“C Street property”) since 2022 save for a five-day period in May 2024. The parties’ application for permanent residency required the parties to invest $1.5 million in a business bond in Australia, which has been complied with, and for that sum to continue to be invested for the period of the Provisional Visa. In 2022, the parties purchased the C Street property, for the sum of $1.2 million. That property is registered in the parties’ joint names. In 2016, the husband's sister and niece incorporated a company, E Pty Ltd, in Australia with the husband’s sister and brother holding shares in the company on trust for the parties at that time. In 2022, the wife became the sole director of the company. She owns 55 percent of the shares, with the husband owning 45 percent. In mid-2022, that company purchased a business and changed its name to F Pty Ltd. That company now holds 100 percent of the shares in G Pty Ltd. The company F Pty Ltd had five employees but ceased operating in early 2023 and the business accounts currently have a total balance of $3,600 in cash.[1] [1]Applicant’s Affidavit filed 10 September 2024 at [49]-[53]. In about early 2023, the husband returned to Country B after a dispute with the wife. He then flew to Australia for a month and a half in mid-2023 before returning to Country B. The husband visited Australia again in early 2024 and the wife gives evidence that this was an unsuccessful attempt to reconcile. The husband returned to Country B on 26 April 2024 which the wife lists as the date of separation. The husband returned to Australia in mid-2024 for a period of time to attend a relative's wedding but returned to Country B shortly thereafter and has remained there since. The wife, as said earlier, continues to reside in Australia. The wife gave evidence that in mid-2024 an argument occurred between the parties and the wife alleges that the next day the respondent committed family violence and, as a result, the following day the wife made an application for a family violence intervention order with the order being granted in mid-2024 against the husband.[2][2]Applicant’s Affidavit filed 10 September 2024 at [25]-[31].History of Proceedings

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

At [75] Ms J states:75.Any party seeking to enforce a foreign judgment in [Country B] in respect to his/her share of matrimonial assets, will have to file fresh civil proceedings under common law remedies, the Australian Court Order being evidence of the rights of the parties. The foreign judgment itself provides the cause of action. However, this is only applicable if the Australian Court Order was for a specific sum i.e. the division expressed in the form of payment of money, by reason of the following:-75.1To enforce a foreign judgment by way of common law, certain pre-requisites must be met. Firstly, the foreign judgment must be an in personam judgment that is final and conclusive. Secondly, the judgment must be for a specific sum. Thirdly, it must have been given by a court of competent jurisdiction.(footnotes omitted)CONSIDERATIONS It is submitted on behalf of the wife, that the issues in relation to dealing with assets in Country B, if orders are made by Australian courts, is not an issue of significance. This is put because the only adjustments that she seeks is in relation to the property interests in Australia. In respect of the property interests in Country B, the wife simply seeks to retain the properties which are registered in her name and there is no need for any enforcement proceedings. She also submits that the properties that she seeks orders to in relation to Country B, comprise only a small proportion of the total pool of property in that country. As a result of discussions with counsel for the husband through the course of the hearing, I asked him to articulate what orders were being sought by the husband in the proceeding. I accept that this was done on the run, over the telephone and through an interpreter at times and the husband will not be held to matters that he raised, however, the husband did indicate that he would be seeking orders in respect of property in Australia, and this raises real issues as to whether the court in Country B is able to make effective orders in relation to the assets held in Australia, which represent a significant portion of the assets. Whilst it is a rough calculation, based on the calculations provided in the wife's affidavit, which are in part estimates of the value of assets in Country B, whereas the value of the assets in Australia are more settled, the value of the total assets that she seeks is around $3,317,260.23, with the total asset pool of about $7.5 million. It is not apparent that the Country B court is in a position to deal finally with all matters or to effectively enforce all the orders that the husband seeks. As canvassed above, the husband indicated that he would seek orders for the adjustment of the property in Australia. In relation to the C Street property, he seeks an order that he be entitled to 50 per cent of those assets. As to the bond, he also seeks 50 per cent. He seeks an order that the CBA term deposit be in his name. In relation to the F Pty Ltd, he seeks orders in relation to fifty-fifty division, which would involve an adjustment, and as with the G Pty Ltd, he seeks 50 per cent, which would also involve an adjustment. Whilst the applications have not been finally framed, it would appear that the issues with enforcement might be more significant for the husband, given the nature of the orders that he seeks and in circumstances where the wife is not seeking an adjustment to the properties that are held in Country B in her name.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.