GALEGO & GALEGO

[2012] FamCA 241

FAMILY COURT OF AUSTRALIA

GALEGO & GALEGO [2012] FamCA 241

FAMILY LAW - PROPERTY – where the Wife applied for final and interim property Orders in circumstances where a property settlement agreement had already been made by Order of the High Court of South Africa – Where the Husband challenged the Wife on the grounds of res judicata – Where the parties consented to the application being permanently stayed – Where the Court is satisfied that the Wife’s continuation with her application would be vexatious or oppressive to the Husband

Family Law Act 1975 (Cth)

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

APPLICANT: Ms Galego

RESPONDENT: Mr Galego

FILE NUMBER: BRC 10053 of 2010

DATE DELIVERED: 20 April 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 20 April 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Wrightway Legal

SOLICITOR FOR THE RESPONDENT: Cassandra Pullos Lawyers

Orders

1. The Wife’s Application, initially filed in the Federal Magistrates Court of Australia under file number BRC10053/10, subsequently transferred to the Family Court and as subsequently amended, be permanently stayed.

2. The Wife be restrained by permanent injunction from commencing, maintaining or continuing any financial matter as that expression is defined in s 4(1) of the Family Law Act 1975 (Cth) (“the Act”) against the Husband in any Court exercising jurisdiction under the Act.

3. Any proceedings in any Court exercising jurisdiction under the Act which have the effect of disputing the Order made by the High Court of South Africa Transvaal Provisional Division on … February 2006 be permanently stayed.

4. Otherwise, all outstanding applications be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Galego & Galego has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC10053 of 2010

Ms Galego

Applicant

And

Mr Galego

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Briefly stated, the relevant background to this matter is that the parties married in South Africa in 1980 and separated in or about 2003. On … February 2006, the High Court of South Africa made a final Order of Divorce of the parties and that Order incorporated the terms of a settlement agreement made by the parties as Orders of that Court.

2. In evidence before the Court is an affidavit of Ms C filed on 4 November 2011. She can be regarded as an expert in South African law. Ms C was provided with the final Order of Divorce issued in the High Court of South Africa and the terms of the settlement agreement referred to which were incorporated as an Order of that Court. Ms C expresses the opinion that because the agreement was made an Order of the Court, there are:

   …almost no conceivable grounds on which the applicant could possibly have the Order declared null and void, no matter how dire the consequences of the said Order may prove to have been for her.

3. In paragraph 8 of her affidavit, Ms C expresses opinions to the effect that the jurisdiction of South African Courts is exhausted with respect to issues of property adjustment, spousal maintenance and the setting aside of the settlement agreement, and if the Wife were to institute proceedings in South Africa for property proceedings, spousal maintenance or the setting aside of the agreement, there is a likelihood such a claim would be dismissed with costs.

4. On 27 October 2010, the Wife filed an Initiating Application in the Federal Magistrates Court of Australia, seeking Orders, inter alia, for leave to commence proceedings for property settlement. She filed an Amended Initiating Application on 21 January 2011 reiterating final Orders for property settlement and interim Orders as well.

5. The Husband joined issue in the proceedings seeking a variety of Orders, including that the Wife be permanently restrained by injunction from commencing, maintaining or continuing any financial matter as that term is defined in s 4 of the Family Law Act 1975 (Cth). He sought a permanent stay of the Wife’s proceedings and a variety of other Orders intended to restrain the Wife from either continuing the present proceedings or bringing any further such proceedings.

6. The issues in respect of the legitimacy of the Wife’s proceedings were set down for hearing today as a discrete issue before me. In the result, the parties reached Minutes of Consent as contained in Exhibit 1. On the hearing today before me, I raised questions about the form of those Orders in terms of whether the parties could legitimately consent to Orders by way of permanent injunctions or stays of proceedings, but more particularly, the conflict on the one hand in the parties seeking to have the current application dismissed, and on the other, seeking a permanent stay of the same application.

7. There is no confusion, however, about the intention of the agreement reached by the parties as reflected in Exhibit 1. It is plain that what is intended is that the current proceedings be brought to an end and that there be no legitimate prospect for the Wife to institute further such proceedings in Australia in the future.

8. It can be inferred from the consent Orders, and it was acknowledged by Mr Wright, who appears for the Wife, that the Wife acknowledges that it would be vexatious and oppressive to the Husband to maintain the current proceedings or to institute any further such proceedings. Both parties’ legal representatives have confirmed, in exchanges during the hearing, that there ought be an order permanently staying, rather than dismissing, the subject Initiating Application.

9. In CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, the majority of the High Court identified the power to stay proceedings as an aspect of the inherent or implied power of every Court, “...to prevent its own processes being used to bring about injustice.”

10. In these circumstances, and for those brief reasons, I make the Orders as set out at the commencement of these reasons.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 April 2012.

Associate: 

Date: