Hett and Seer (No 2)

[2019] FamCA 374

FAMILY COURT OF AUSTRALIA

HETT & SEER (NO. 2) [2019] FamCA 374

FAMILY LAW – DIVORCE – Application for divorce – Abuse of process – Adjournment of divorce as remedy for abuse of process.

Jeffery & Katouskas Pty Ltd v Rickard Constructions Pty Ltd [2009] 239 CLR 75
Williams v Spautz [1991-1992] 174 CLR 509

APPLICANT: Ms Hett

RESPONDENT: Mr Seer

FILE NUMBER: CAC 1020 of 2018

DATE DELIVERED: 7 June 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 4 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Masters

SOLICITOR FOR THE RESPONDENT: Marjason & Marjason Solicitors

Orders

1. That the Wife’s application for divorce be adjourned to a date to be fixed, being the date on which the property proceedings are resolved by the delivery of final judgment.

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 Hett & Seer 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 CANBERRA

FILE NUMBER: CAC1020 of 2018

Ms Hett

Applicant

And

Mr Seer

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties to this matter are Ms Hett, the Applicant Husband and Mr Seer, the Respondent Wife.  The parties married in 1996 in City F and they separated on a final basis in either July 2011 or November 2012 although it is disputed precisely when.  There is one adult child of the relationship, X, who has lived with the Husband in Suburb G, the Australian Capital Territory, since July 2013.  The Wife has been living in China since 2004.

2. These current proceedings concern an Application for Divorce filed by the Wife and the division of the parties’ property, pursuant to an undefended application pursued by the Husband.  

3. The Wife has presented material to adequately support the necessary grounds and preconditions of a divorce, and the granting of a divorce, per se, is not opposed by the Husband.

4. What is contentious is that the Husband submits that the divorce proceedings should be further adjourned on the basis that they constitute an abuse of process.  That alleged abuse of process is linked by the Husband to the property proceedings that he has commenced against the Wife.  He alleges that the Wife is seeking to obtain the divorce order so that she can commence parallel property proceedings in China, which he asserts would constitute an abuse of process.

Orders sought

1. The Husband sought that the Application for Divorce not be heard until the property dispute has been finalised.

2. The Husband sought that the property of the parties not including superannuation be divided equally between the parties.

3. The Husband sought that the Wife pay his costs from the proceedings.  

4. The Wife sought that the divorce be granted.

Material Relied On

1. In relation to his application for an adjournment of the divorce, the Husband relied upon the following:

   a)Written Submissions filed 1 March 2019;

   b)Response to Divorce filed 19 July 2018; and

   c)Affidavit of Ms Hett filed 8 April 2019.

2. The Wife relied upon the following:

   a)Application for Divorce filed 29 May 2018;

   b)General Order by Deputy Registrar Payget made on 20 July 2018;

   c)General Order by Judge Hughes made on 31 July 2018; and

   d)General Order by Judge Hughes made on 14 November 2018.

Litigation History

1. The Wife filed an Application for Divorce on 29 May 2018.  The Husband filed a Response to Divorce on 19 July 2018.

2. The case was heard in the Federal Circuit Court of Australia on 20 July 2018 and adjourned by Deputy Registrar Payget for hearing before her Honour Judge Hughes.

3. The case was heard before Judge Hughes on 31 July 2018 and adjourned until 14 November 2018 to facilitate discovery.

4. On 14 November 2018 the matter was transferred to this Court.

5. Orders were made on 8 February 2019 regarding the question of what forum was suitable to decide the property proceedings.

6. The matter came before the Court on 4 June 2019.  The property proceedings were adjourned until 23 August 2019 to enable the Husband to acquire more evidence about the property in China.

Discussion

1. The Husband’s proposition is that the Wife (who he does not dispute is entitled to a divorce) is seeking the divorce in order to enable her to commence proceedings in relation to the property in China.  This proposition is founded upon a number of circumstances.  The Wife was late in complying with previous orders in relation to disclosure, and her disclosure did not refer to property held in China.  The Wife has made a number of assertions to the Husband indicating that she does not, as a Chinese citizen, regard herself as bound by Australian Courts.[1]  The Wife has also given some indication to the Husband that the obtaining of a divorce will enable her to commence property proceedings in China.[2]

   [1] Affidavit of Ms Hett filed 8 April 2019 [39]

   [2] Affidavit of Ms Hett filed 8 April 2019 [41]

2. The Husband says that the spectre of “multiple or successive proceedings which cause or are likely to cause improper vexation or oppression,”[3] means that the divorce proceedings are an abuse of process.

   [3] Jeffery & Katouskas Pty Ltd v SST Consulting Pty Ltd; Jeffery & Katouskas Pty Ltd v Rickard Constructions Pty Ltd [2009] 239 CLR 75 at [27]

3. The above quote from Katauskas came from a broader statement as to the scope of the concept of abuse of process, there within a contest relating to litigation funding.  The broader quote is as follows:

   An early statement of the power of any court to prevent abuse of its processes is found in an 1841 case, Cocker v Tempest:

   The power of each court over its own processes is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of injustice.

   That statement foreshadowed the contemporary approach in the United Kingdom and Australia which takes no narrow view of what can constitute “abuse of process”.  Nevertheless, certain categories of conduct attracting the intervention of the courts emerged in the nineteenth and twentieth centuries and included:

   “(a) proceedings which involved a deception on the court, or are fictitious or constitute a mere sham;

   (b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;

   (c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose;

   (d) multiple or successive proceedings which cause or are unlikely to cause improper vexation or oppression.”

   The term “abuse of process”, as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort.  It has been said repeatedly in the judgements of this Court that the categories of abuse of process are not closed.

4. The first question that then arises is whether, if the Wife did commence property proceedings in China, that would be an abuse of process.

5. In the context of the Wife having participated and then withdrawn from property proceedings in Australia, and thereby having resiled from her assertions as to the appropriate forum for resolving the property dispute, if the Wife now commenced property proceedings in China the parallel proceedings should be considered to be oppressive.  It would be oppressive because it would involve the Husband dealing with court proceedings in two forums directed to the same subject matter and dispute.  This falls squarely within the examples set out above from Katouskas.

6. The second question that arises is whether, in the face of that possibility, that the Wife’s application for a divorce (to which she is entitled) is for the purpose of furthering such an abuse of this court’s process.

7. It is necessary for the Husband to prove that the divorce application is made for an improper ulterior purpose. 

8. In Williams v Spautz[4] the majority adopted what was said by Bridge LJ in Goldsmith v Sperrings Ltd:[5]

   What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired by product of litigation?  Can he on that ground be debarred from proceeding?  I very much doubt it.

   [4]Williams v Spautz [1991-1992] 174 CLR 509

   [5]Goldsmith v Sperrings Ltd [1977] 2 All ER 566

9. It is not enough that the Husband show that the divorce would enable the Wife to commence abusive proceedings in China.  He must prove that to be the Wife’s purpose in making the divorce application.  It is not enough that it merely be a desired by-product.  It must be shown to be the purpose.  This is consistent with the importance attached to people not being barred from access to courts.

10. The Husband relies on inferences being drawn from the collection of circumstances set out above to establish that the Wife’s purpose is to enable oppressive proceedings to be conducted in China.  It is the combination of those circumstances that lends weight to the Husband’s claim.  The combination of the Wife’s withdrawal from the property proceedings in Australia, her assertions that she would not be bound by a determination by this Court, her indication that she will have recourse to the Chinese courts and her assertions that she will be able to commence proceedings in China once the divorce is granted, are the factors that speak most loudly to the ulterior purpose.  Together with the other matters identified by the Husband they are sufficient to prove that purpose.

11. To remedy this alleged abuse, the Husband seeks the adjournment of the divorce proceedings only until the delivery of judgment about the property proceedings.  Such is likely to take place in August or September 2019.  The Wife is currently the subject of an anti-suit injunction, restraining her from commencing or prosecuting proceedings in China in relation to the property.  It is common between the parties that she has not commenced any such proceedings.

12. No material was advanced to suggest that the finalisation of property proceedings in Australia would act as some form of bar to proceedings being commenced by the Wife in China, at least as far as the Chinese courts might be concerned.  In this sense, any protection afforded to the Husband may be short term.

13. Given that the Husband seeks that the adjournment only continue until judgment in the property proceedings is delivered, and given that she is the subject of an anti-suit injunction, the Wife queries what protection is actually accorded to the Husband by the delay.

14. The apparent inability of the Wife to commence property proceedings prior to obtaining the divorce order is protective of the Husband.  It is a protection greater than that afforded by the anti-suit injunction.

15. Although the protection may not be effective once the property proceedings are ended, it is the limited protection sought by the Husband.  That the Husband may not have effective protection once the proceedings are finalised does not remove the effectiveness of the protection at present, and does not present a good argument in this case for the refusal of the temporary remedy.

Conclusion

1. The divorce application will be adjourned pending the resolution of the property proceedings.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 7 June 2019.

Associate:

Date:  7 June 2019