Hertwig and Hertwig
[2020] FamCA 490
•19 June 2020
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 | of | 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 acknowledge that the litigation that has consumed these parties at least in Australia since 2016 has been prolonged and difficult and has clearly heightened emotions, I did indicate to both parties that sections of their Affidavit evidence were simply not relevant to the discrete urgent issue I was required to decide. I understand a pending Contravention Application filed by the father and some other interlocutory applications are still to be determined and in part are listed for further directions before Hogan J on 16 July 2020. I also understand that property settlement proceedings between the parents who were married in 2003 and separated finally at last by February 2015, are still on foot.
On 28 May 2019, Forrest J made final parenting Orders by consent (“the said final Orders”). The Orders are Appendix One to these Reasons. The Orders were made at a time when:
a)the three children X (now aged 13 years), Y (now aged 11 years) and Z (now aged eight years) were residing with the parents in Thailand. X was born in Australia however Y and Z were both born in Thailand;
b)although the parents are both Australian citizens, they have permanent residential status in Thailand and have lived as a family in that country, it seems for over 10 years;
c)reflective of the circumstances where the family lived in Thailand at the time of the said final Orders, Order 4(b) provides for an equal time (week about) arrangement. Furthermore, the notation to Order 20 suggests at the time of the said final Orders, the parents intended the children maintain a “domicile in Thailand";
d)relevant to the current application is Order 20, under the heading of “Jurisdiction” which provides:
“That the Mother and the Father intend these Orders to be final in respect of all matters relating to the children AND FOR THIS PURPOSE the Mother and the Father shall do all things and sign all necessary documents in order to register these parenting Orders with the appropriate Court in Thailand or Thailand Government Authority, if possible, to enable their enforceability in that jurisdiction where necessary and given these Orders were made in the Family Court of Australia it is intended that any issues of dispute and/or interpretation be determined in accordance with the Family Law Act 1975 (Cth) of Australia.”
e)the father submitted that it was his belief at the time of the said final Orders that the Australian Orders could be registered or otherwise recognised in Thailand. He indicated that is no longer his belief. Both parties say that at the time of the said final Orders, no evidence was produced to the Court from an expert in Thai law as to the ability to register, recognise or enforce the said final Orders in that country.
It is clear that subsequent to the said final Orders, the mother says that she became aware of behaviour by the father towards the children, which she regarded as creating child protection concerns and as a result:
a)on or about 5 November 2019 the mother obtained a child protection order in Thailand which operated initially for 30 days and prevented the father from contacting the children;
b)on or about 28 November 2019 the mother commenced proceedings (or supported such commencement) for essentially parenting orders which would, the father asserts, have the long term effect of extinguishing his parental rights and, I infer, seriously restrict his access to the children; and
c)as a result of the commencement of those proceedings, the initial child protection order was extended until the completion of the Thai proceedings. Although it is a procedure different to that undertaken in the Australian court system, the wife submits that the current Thai proceedings include both civil (black case …/2019) and criminal (red case …/2019) issues. Appendix 7 to the wife’s Affidavit includes a translation of an order made 25 February 2020 which confirms the Thai proceedings are:
i)listed for hearing on 17, 18 and19 June 2020;
ii)the mother intends to call five witnesses; and
iii)the father intends to call eight witnesses.
The father does not dispute the proceedings in Thailand are on foot. He says that since their commencement he has sought to either stay or adjourn the proceedings. He informed the Court that if his anti-suit application is not successful, he has made an application to adjourn the proceedings in the Thai court. He did not dispute that he has been engaged in those proceedings.
The father says that on or about 4 November 2019 he attempted to file in Australia a Contravention Application but that an administrative impediment in the Registry meant that the Contravention Application is not shown as being filed until 10 December 2019. The father says his attempts to file the Contravention Application was the day prior to the mother obtaining the protection order initially on 5 November 2019.
The father’s Contravention Application asserts a number of counts (and was sworn in D Town (Thailand) on 26 November 2019. Leaving aside the concern that the Affidavit in support of the Contravention Application may not have been sworn in accordance with Australian law requirements for Affidavits sworn in a foreign country, the counts include:
a)the mother ceased time between the father and Y and Z since 31 October 2019;
b)the mother took the child X from the father’s care on 28 November 2019;
c)the mother enrolled X in a different school on 14 November 2019;
d)the mother failed to facilitate communication between the children and the father since 4 June 2019 and further since that time:
i)denigrated the father; and
ii)failed to comply with the Australian Orders so as to “ensure the effective operation of the Orders”.
It is clear that a number of the alleged breaches of said final Orders have occurred after the mother commenced substantive parenting proceedings in the Thai court.
principles to be applied
The principles to be applied in exercising the discretionary relief sought by the father are well settled.
At paragraphs 36 to 60, the Full Court in Lan & Hao (2017) 325 FLR 1 set out the principles that apply to anti-suit injunctions seeking to restrain the pursuit of proceedings in foreign jurisdictions. I do not set out the entirety of these principles as enunciated which, of course, guide and bind any exercise of discretion, save to note for the benefit of these self-represented parties that:
a)where there are no current pending parenting proceedings in this Court, the claim by the father seems to be based on the equitable jurisdiction to restrain unconscionable conduct by the mother or the unconscientious exercise of a legal right by her;
b)“as Gummow J pointed out in National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209 a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court” (see CSR Ltd v Cigna Insurance Australia Ltd (1997) CLR 345);
c)the majority in CSR Ltd v Cigna Insurance Australia Ltd (supra) at 393-394 identified:
“One well established category of case in which an injunction may be granted in the exercise of equitable jurisdiction is that involving proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive”
Thus, even if there were the existence of proceedings in two different countries at the same time, this does not, of itself, constitute vexatious or oppressive conduct.
d)
very significant issues to be considered when a party is seeking an
anti-suit injunction is whether the controversy between the parties is the same in both jurisdictions; whether or not complete relief is available in the local jurisdiction and whether there is nothing to be gained in the overseas proceedings or whether, on the other hand, the overseas proceedings will give rise to additional or other remedies (Lan & Hao (supra) at [41]);
e)in this case, drawing on authorities such as Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at [559 to 565]; Henry v Henry (1996) 185 CLR 571 at [586 to 587] and Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at [247] some other relevant considerations include:
i)the existence of proceedings in another jurisdiction between the same parties and with respect to the same issue or controversy;
ii)whether each jurisdiction will recognise the other’s orders and decrees;
iii)the order in which proceedings were instituted;
iv)the stage which has been reached in each proceedings; and
v)the connection of the parties and the children in this parenting dispute with each jurisdiction.
This list of considerations is not exhaustive and if there were competing parenting applications before the Thai court and this Court, then as identified in Henry (supra), the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.
Applying the principles to the facts in this case
As was held in Lan & Hao (supra) at [45], the path I am required to take is:
“…first to consider the nature of the proceedings in [the foreign country] to determine whether they raised the same or a different controversy, whether or not there was something to be gained in them, and whether there was complete relief available in Australia.”
I find that the proceedings in Thailand are focused on the parenting arrangements which are in the best interests of the three children. Whilst the initial catalyst might be said, by the mother (and vigorously disputed by the father), to be “child protection” concerns, the ongoing proceedings will allow the allegations made against the father to be properly, and quickly, ventilated in the Thai courts.
The father’s Contravention Application, based on the said final Orders, are not in its first stage of analysis, parenting applications where the best interests of the children are the focus. Contravention proceedings are quasi criminal in nature and “charge” the Respondent (in this case the mother), with breaches of orders said to bind her. If the mother is found by an Australian court to have failed to comply with the said final Orders without a reasonable excuse, then sanctions may be imposed upon her.
Whilst it is true, as the father submitted, that a Contravention Application is a process that can enliven the Court’s jurisdiction to consider variations to existing orders in the children’s best interests (see for example s70NBA and s70NEB of the Family Law Act 1975), such an enquiry does not begin until the Contravention Application has been dealt with. Although not a matter for me in the current anti-suit application, the utility of the Contravention Application where:
a)the mother lives in Thailand with the children;
b)problems likely to be encountered in effecting sanctions upon the mother in Thailand are obvious; and
c)any “best interests” determinations, if the Family Court of Australia was persuaded after the Contravention Application was determined was appropriate, would require an examination of events in Thailand at least since the said final Orders were made,
will be a likely further consideration.
The father, I sense from his perspective, felt that the Australian “final” Orders were just that – final and not challengeable. I explained to the father that whilst described as “final”, in all parenting cases the ability to re-assess at a future time whether there has been a substantial or material change in circumstances since the “final orders” were made exists. This is a manifestation of ensuring orders parents are obliged to comply with are in the best interests of the children.
The mother has lawfully and in accordance with the domestic laws of Thailand, commenced proceedings in which she asserts a change of circumstances. To the extent part of the father’s application is based on a position that having orders made in Australia in May 2019, means that Australian courts are the only courts that should exercise parenting jurisdiction and that any other foreign court is a “clearly inappropriate forum”, I disagree.
Whilst there is a dispute as to whether the said final Orders have been registered and are enforceable in Thailand, Order 20 of the said final Orders merely identifies an agreement that both the mother and father shall “do all things and sign all documents in order to register” the said final Orders in Thailand “if possible”. The reason revealed for doing so was to “enable their enforceability in that jurisdiction where necessary”.
If the Contravention Application is an attempt to “enforce” the said final Orders in this jurisdiction, then the utility of seeking to do so is yet to be determined. Even if the filing of the Australian Orders by the mother in the Thai court (evidenced by the application of a stamp/seal at Appendix 7 of the mother’s Affidavit) amounts to “registration”, as she submits, this would not necessarily mean the Thai court is unable to consider variations of existing parental arrangements if, for example, child protection issues are raised and proved.
This seems to be the real issue that the Thai courts are ready to consider beginning on 17 June 2020.
The continuation of those proceedings in Thailand may affect the utility of the Contravention proceedings launched in Australia by the father after the mother’s application was filed in Thailand.
However, it will not affect the continuance of the property proceedings in Australia which will continue. The mother makes no application for the property proceedings in Australia to be stayed and no property proceedings are pending in Thailand.
Conclusion
For the reasons now published and articulated, the father’s application was dismissed by Orders made on 12 June 2020.
For completeness, the father’s Affidavit filed 11 June 2020 and the written submissions filed on the morning of the hearing before me were not the subject of response by the mother. Much of the father’s allegations in his Affidavit are not “strictly in reply” as permitted by the directions of Hogan J. As a result, the mother asked that I disregard the father’s Affidavit filed 11 June 2020.
As I find much of the father’s Affidavit not relevant to the principles I was required to apply, I simply gave little weight to those assertions – which generally fall within the father’s criticisms of the mother’s behaviour and conduct, and are simply covered by the father’s perceptions that:
“looking back I do not think she had any true intention to have those orders be final”
Within the context of the Thai proceedings, considering it has been listed for three days of hearing, it is, I infer, likely that the conduct and behaviour of both parents will be examined. Again, with the children living in that country, as they have for over 10 years, that is the appropriate and timely event to conduct such enquiry now.
I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 19 June 2020.
Associate:
Date: 19 June 2020
APPENDIX ONE
That all previous children’s Orders be discharged.
Parental Responsibility
That except as otherwise provided in these Orders, Ms Hertwig (the Mother) and Mr Hertwig (the Father) shall have equal shared parental responsibility with respect to decisions about major long-term issues in relation to:
(a) X, born in 2006;
(b) Y, born in 2008; and
(c) Z, born in 2011;
referred to collectively in these Orders as the children. For the avoidance of doubt, major long-term issues are issues about the care, welfare and development of the children which are of a long-term nature and include, but are not limited to:
(a)the children’s education, both current and future;
(b)the children’s religious and cultural upbringing;
(c)the children’s health;
(d)the children’s names; and
(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
That in the exercise of equal shared parental responsibility, each of the Mother and the Father must make decisions about major long-term issues jointly, by consulting with the other in relation to the decision to be made and making a genuine effort to come to a joint decision about that major long-term issue affecting the children.
Living Arrangements
(a) That the children shall live in Thailand.
(b)That the children shall live with the parents for equal time on a week about arrangement in D Town for the time that both parties are in Thailand, save for Order 7 hereof with changeover to be effected on Monday after school if on a school day or Monday morning at 10.00 am if not on a school day.
(c)That the time provisions in Orders 4(b) and 6 shall continue to roll over as if no suspension shall have occurred pursuant to Order 7.
School Holidays
That in these Orders, school holiday period means the school holiday period observed by the school the children attend from time to time and commences at the conclusion of the school day on the last day of the concluding school term and concludes at the commencement of the school day on the first day of the immediately following school term, save that if the children are with the Father pursuant to Order 7 then the time with the children shall commence two days after the last day of school and conclude two days prior to the first day of school resuming (for the purpose of travel to and from Thailand).
That the equal time arrangement pursuant to Order 4:
(a)Shall be suspended during all school holiday periods as observed in Thailand at the school the children attend, when the children shall spend equal time with the Mother and the Father being the first half of such school holiday period with the Father and the second half with the Mother in even numbered years, alternating in odd numbered years AND FOR THIS PURPOSE:
(i)one half of the relevant school holiday period shall be calculated by reference to the number of nights in the school holiday period, and if there is an uneven number of nights in any particular holiday period, the children shall spend an additional night with the Mother in such holidays if that is in an odd numbered year and an additional night with the Father in such holidays if that is in an even-numbered year; and
(ii)upon the recommencement of the school term, the children’s time with each of the Mother and the Father shall recommence in accordance with Order 4 herein with the first week of the school term to be spent with the parent with whom the children spend the first half of the relevant school holiday period.
That in the event the Father lives outside of Thailand, which shall be deemed to commence upon the Father giving notice in writing of his intention to live permanently outside Thailand, such notice to be given 28 days prior to leaving Thailand or otherwise at the earliest opportunity:
(a)The children shall spend time with the Father either in Thailand or where the Father is residing at the Father’s election:
(i)for all of the First and/or Third school holidays each year (as observed by the school that the children attend);
(ii)for half of the longest school holidays each year such that Christmas is alternated each year with the Mother to have Christmas in 2019 and odd years; and
(iii)otherwise the children are to spend the entire mid-year (second) holiday with the Mother, whilst noting that if the Father invokes time in accordance with Order 7(a)(i) above, then the children shall automatically spend time with the Mother in accordance with Order 7(a)(iii) that same year or the year thereafter;
(b)For the purpose of implementing Order 7 herein:
(i)the parties shall pay for return economy flights for the children to travel as unaccompanied minors between where the Father is residing and Thailand as follows, but with any flight to cost no more than a flight to Australia:
(1)With the Mother to pay for the First school holiday period pursuant to Order 7(a)(i);
(2)With the Father to pay for the Third school holiday period pursuant to Order 7(a)(i); and
(3)With the Father to pay for the longest school holiday period pursuant to Order 7(a)(ii);
(ii)the parties shall each pay for their own flights or any guardian (if any);
(iii)the children may not necessarily travel unaccompanied but may also travel in the presence of their parent or guardian.
Communication
That each of the Mother and the Father shall be at liberty to communicate via telephone/Skype/other electronic means with the children at all such times which are suitable to the children’s routines and the parent with whom the children are then spending time shall facilitate that communication and afford the children privacy during that communication.
That the children shall be at liberty to communicate with either parent at all such times as the children (or any of them) express a wish to do so and the parent with whom the children are then spending time shall facilitate that communication and afford the children privacy during that communication.
Specific Issues
That each of the Mother and the Father must notify the other in writing within twenty-four (24) hours of any change to their respective residential addresses, contact telephone numbers or contact e-mail addresses.
That each of the Mother and the Father shall notify the other as soon as possible and in any event within twenty-four (24) hours of any injury or illness being suffered by any of the children which requires medical treatment.
That each of the Mother and the Father hereby authorise any school attended by any of the children from time to time or health practitioner attended upon by any of the children from time to time to provide the other with all such information about the children as that school or health practitioner is legally able to provide to a parent at the cost of the requesting parent.
That each of the Mother and the Father shall provide the other with the names and contact details of any health practitioner upon which any of the children attend during periods the children are spending time with them respectively within twenty-four (24) hours of the affected child’s first attendance upon that practitioner.
That during the time the children spend with either the Mother or the Father, each parent respectively shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b) Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent, the other parent’s partner or the other parent’s family in the presence or hearing of the children and shall use their best endeavours to ensure that others do not do so;
(d) Not physically discipline the children;
(e) Ensure the children have independent sleeping arrangements;
(f) Shall not leave a child unattended before the age of 12; and
(g)Neither parent will record the telephone/skype/facetime conversations between the parties and/or the children.
Overseas Travel
That the Mother is to retain the children’s passports and, notwithstanding the existing Orders allocating parental responsibility for the children equally between the parents, the Mother shall be solely responsible for holding the children’s passports and for obtaining and renewing the children’s Australian passports from the Australian authorities, and as necessary, valid visas from the Government of Thailand for the children, permitting them to reside in Thailand, and for presenting the children’s Australian passports to Thai authorities as required.
(a) That the Mother is to release the children’s passports to the Father 7 days prior to travel (subject to the Mother’s travel), upon the provision of 28 days’ notice in writing of the Father’s intention to travel with the children internationally or for any other purpose for which an original passport is required by the relevant Thai authority, with the Father to return the passports to the Mother within 16 hours of the children’s return to Thailand or completion of presentation to the relevant Thai authority which may necessitate the provision of the children’s passports to the Father which shall be returned within 16 hours to the Mother.
(b)That the Mother will otherwise provide the Father with a certified copy of the children’s passports in order that he may travel with them domestically within Thailand if he so wishes.
NOTATION 1 (which applies to Order 16 hereof)
The holding of any passport or visa by the Mother shall not diminish the Orders for equal shared parental responsibility or equal time.
That each of the Mother and the Father agree that the other may temporarily take the children outside of their country of residence and must be provided with the children’s passports for the purpose of such travel on such conditions as are agreed between the Mother and the Father, and failing agreement, upon the following conditions being met:
(a)The travel is during a school holiday period and during time the children would otherwise spend with the travelling parent pursuant to these Orders;
(b)The children are only to visit (even by way of transit or stopover) countries that are signatories to The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, save for renewal of visas or for the children’s extra-curricular activities;
(c)The travelling parent provides the non-travelling parent with a draft itinerary, including at least the proposed dates of travel and the countries to which it is proposed the children will be travelling, at least 28 days prior to the first day of travel, together with telephone contact details;
(d)The travelling parent provides the non-travelling parent with a copy of a return airline ticket to be used by the children as well as an itinerary showing all countries that the children will be visiting during the travel at least two (2) weeks prior to the first day of travel;
(e)The travelling parent provides the non-travelling parent with a copy of a comprehensive travel insurance policy covering the travelling parent and the children, as well as a contact telephone number and address(es) at which the children can be contacted throughout the travel at least one (1) week prior to the first day of travel; and
(f) The travelling parent pays all costs associated with the travel.
That during any periods of travel, the travelling parent must ensure that the children contact the non-travelling parent by telephone, Skype or other electronic means on at least one (1) occasion per week.
Schooling
That the children shall attend at K School, D Town.
Jurisdiction
That the Mother and the Father intend these Orders to be final in respect of all matters relating to the children AND FOR THIS PURPOSE the Mother and the Father shall do all things and sign all necessary documents in order to register these parenting Orders with the appropriate Court in Thailand or Thailand Government Authority, if possible, to enable their enforceability in that jurisdiction where necessary and given these Orders were made in the Family Court of Australia it is intended that any issues of dispute and/or interpretation be determined in accordance with the Family Law Act 1975 (Cth) of Australia.
NOTATION 2 (which applies to Order 20 hereof)
It is hereby recognised by the parties that should the specific requirements in Thailand change in the future in terms of re-registration of the children’s domicile in Thailand within a prescribed period, then the parties will do all things necessary in order to accord with that change.
That each party shall take all such necessary steps and sign any document necessary to cause, as best they can, any school or health practitioner the children attend to give equal authority, rights and information to each parent.
That neither party shall take any steps to obtain a Thai passport for any of the children.
IT IS FURTHER ORDERED
That the Independent Children’s Lawyer be discharged.
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