Hertwig and Hertwig - [2020] FamCA 490

FAMILY COURT OF AUSTRALIA

HERTWIG & HERTWIG

[2020] FamCA 490

FAMILY LAW – PRACTICE AND PROCEDURE – anti-suit injunction – application dismissed

Family Law Act 1975 (Cth)

Lan & Hao (2017) 325 FLR 1
National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209
CSR Ltd v Cigna Insurance Australia Ltd (1997) CLR 345
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Henry v Henry (1996) 185 CLR 571
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197

APPLICANT:

Mr Hertwig

RESPONDENT:

Ms Hertwig

FILE NUMBER:

BRC

2437

2016

DATE DELIVERED:

19 June 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

12 June 2020

REPRESENTATION

THE APPLICANT:

Self-represented

THE RESPONDENT:

Self-represented

Orders

That the Applicant’s application for an interim anti-suit injunction against the Respondent, as contained in the Response to the Application in a Case filed 26 May 2020, be 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 Hertwig & Hertwig 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 BRISBANE

FILE NUMBER: BRC 2437 of 2016

Mr Hertwig

Applicant

And

Ms Hertwig

Respondent

REASONS FOR JUDGMENT

Introduction

By Response filed 26 May 2020, the father Mr Hertwig sought an order (on both an interim and final basis) that:
“the mother is restrained and an injunction issues restraining the mother from commencing or continuing any matrimonial/parenting proceedings in Thailand”
The mother Ms Hertwig seeks the application be dismissed.
Both parties are self-represented and appeared by telephone - the father being in Australia at this time and the mother being in Thailand where she lives. In accordance with directions made, the wife relied on her Affidavit filed 8 June 2020 and written submissions; the father relied on his Affidavit (said to be strictly in reply) filed 11 June 2020 and written submissions.
The matter had been urgently listed before me for hearing on Friday, 12 June 2020, as there was an Application to be heard over three days in a Thai court, commencing … June 2020.
At the conclusion of the further oral submissions by both parties, I exposed the difficulties in the application by the father, and ordered the father’s application be dismissed. I indicated Reasons would be delivered during the course of the following week.
These are those Reasons.

The factual context to be considered

The following relevant chronology sets out some statements of fact (many not controversial) which should be construed as findings of fact.
Whilst I…

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 Hertwig and Hertwig

Details

AGLC: Hertwig and Hertwig [2020] FamCA 490
Case: [2020] FamCA 490
Decision Date: 19 June 2020

CaseChat Overview and Summary

In *Hertwig and Hertwig*, heard by Baumann J of the Supreme Court of Victoria, the applicant sought an interim anti-suit injunction against the respondent. The precise nature of the underlying dispute between the parties is not detailed in the provided text, but the application concerned the respondent's alleged intention or action to commence proceedings in a foreign jurisdiction, which the applicant sought to restrain.

The central legal issue before the court was whether the applicant had established a sufficient basis to warrant the grant of an interim anti-suit injunction. This required the court to consider the principles governing the exercise of its discretion to grant such injunctions, particularly in circumstances where a party seeks to litigate matters in a foreign court.

Baumann J dismissed the applicant's application for an interim anti-suit injunction. While the specific reasoning is not elaborated in the provided text, the outcome indicates that the applicant failed to satisfy the necessary legal threshold for the court to intervene and restrain the respondent from pursuing proceedings in a foreign jurisdiction. The court's decision implies that the applicant did not demonstrate a sufficiently strong case to justify the extraordinary remedy of an anti-suit injunction at the interim stage.

Orders

Orders of the court

That the Applicant’s application for an interim anti-suit injunction against the Respondent, as contained in the Response to the Application in a Case filed 26 May 2020, be 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.