Hillam & Barret
[2019] FamCA 193
•2 April 2019
FAMILY COURT OF AUSTRALIA
| HILLAM & BARRET | [2019] FamCA 193 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Husband and wife living temporarily in State B, U.S.A. for the husband’s work – while in State B, following the breakdown of the marriage, husband and wife commenced collaborative negotiations to resolve all issues in dispute pursuant to the State B Family Collaborative Law Act – no resolution achieved. FAMILY LAW – PRACTICE AND PROCEDURE – Litigation commenced by wife in the Superior Court of State B at D County – that litigation not yet allocated to a judge and at embryonic phase. FAMILY LAW – PRIVATE INTERNATIONAL LAW – Whether State B proceeding should be stayed – whether this litigation in the Family Court of Australia is clearly inappropriate – whether Family Court of Australia will determine all issues. FAMILY LAW – INJUNCTIONS – ANTI‑SUIT INJUNCTIONS – Grounds for applying for order – detailed review of authorities. |
| Child Support (Assessment) Act 1989 (Cth) s 152(2) Family Law Act 1975 (Cth) s 34 Judiciary Act 1903 (Cth), s 78B(5) State B Family Collaborative Law Act 2014, 2A NJ Stat Ann |
| Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 Attorney‑General for the United Kingdom v Heinemann Publishers Australia (1988) 165 CLR 30 Bank of Tokyo Ltd v Karoon [1987] AC 45 BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169 British Airways Board; British Caledonian Airways Ltd v Laker Airways Ltd [1985] AC 58 British South Africa Co v Companhia de Mocambique [1893] AC 602 Buttes Gas & Oil Co v Hammer (No 3) [1982] AC 888 Cabal v United Mexican States (No 3) [2000] FCA 1204 Carron Iron Co Proprietors v James Maclaren, Henry Dawson, E H Tibbats Stainton (1855) 10 ER 961 Castanho v Brown & Root (UK) Ltd [1981] AC 557 Christie v Christie (2007) 37 Fam LR 181 Cole v Abati (2016) 55 Fam LR 329 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 D v L (2005) 33 Fam LR 525 Gamogab v Akiba (2007) 159 FCR 578 Hamilton v Oades (1989) 166 CLR 486 Henry v Henry (1996) 185 CLR 571 Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 Hunt & Hunt [2005] FamCA 849 Hussey v Horne‑Payne [1879] 4 AC 311 In the Marriage of Baba and Jarvinsen (1980) 6 Fam LR 276 In the Marriage of Gillies (1981) 7 Fam LR 106 Incitec Ltd v Alkimos Shipping Corporation (2004) 138 FCR 496 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Jago v District Court of New South Wales (1989) 168 CLR 23 Jess & Jess [2013] FamCA 863 Jess & Jess (2014) 52 Fam LR 43 Lan & Hao(No 2) (2017) 325 FLR 1 Lederer v Hunt (2007) 36 Fam LR 587 McCrea v Minister for Customs and Justice [2004] FCA 1273 Mokbel v Attorney‑General for the Commonwealth of Australia (2007) 162 FCR 278 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Oetjen v Central Leather Co (1918) 246 US 297 Pan Australia Shipping Pty Ltd v Ship “Comandate” [2006] FCA 881 Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 R v Secretary of State for the Home Department; ex parte Hill [1999] QB 886 R v Secretary of State for the Home Department; ex parte Johnson [1999] QB 1174 Reynolds & Reynolds (1977) 33 FLR 232 Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 Sieling & Sieling (1979) 4 Fam LR 713 Smith & Saywell (1980) 6 Fam LR 245 SociétéNationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 St Justins Properties Pty Ltd v Rule Holdings Pty Ltd (1980) 40 FLR 282 Tansell v Tansell (1977) 3 Fam LR 11 Teo v Guan (2015) 53 Fam LR 248 Todhunter v Attorney‑General (Cth) (1994) 52 FCR 228 Underhill v Hernandez (1897) 168 US 250 Underwood & Underwood [2017] FamCAFC 267 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Whung & Whung (2011) 45 Fam LR 269 Wileypark Pty Ltd v AMP Limited (2018) 130 ACSR 66 Witham v Holloway (1995) 183 CLR 525 |
| Martin Davies, Andrew S Bell & Paul L G Brereton, Nygh’s Conflict of laws in Australia (LexisNexis, 8th ed, 2010) |
| APPLICANT: | Mr Hillam |
| RESPONDENT: | Ms Barret |
| FILE NUMBER: | MLC | 13946 | of | 2018 |
| DATE DELIVERED: | 2 April 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Honourable Justice Wilson |
| HEARING DATE: | 19 March 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITORS FOR THE APPLICANT: | Marshalls + Dent + Wilmoth |
| THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: | None |
Orders
The respondent’s application in a case filed on 12 March 2019 to permanently stay this proceeding is dismissed.
The respondent is restrained from taking any step to continue the proceeding in Docket No … in the Superior Court of State B at D County.
Direction
This proceeding be dealt with further by a registrar of this court.
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 Hillam & Barret 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 MELBOURNE |
FILE NUMBER: MLC 13946 of 2018
| Mr Hillam |
Applicant
And
| Ms Barret |
Respondent
REASONS FOR JUDGMENT
Introduction
On 19 March 2019 while sitting in the judicial duty list I heard –
a)the husband’s application for an anti-suit injunction relation to litigation pending in the Superior Court of State B, U.S.A. at D County in Docket No …; and
b)the wife’s application for a permanent stay of this proceeding.
Expressed most basically, the husband and wife having married in Australia, moved for six years to State B to enable the husband to advance his work activities. Their marriage collapsed while in State B. Applying State B laws they participated in steps in an endeavour to collaboratively resolve the issues in dispute between them but they failed to finally resolve their differences. The wife returned to Australia with the two daughters of the marriage and commenced a proceeding in a State B court. The proceeding has not advanced beyond the filing and service of the initiating process. The husband subsequently commenced this proceeding. Each party wants to prevent the other from advancing, respectively, her case in State B and his case in this court. The question for me is which application to grant.
Synopsis
For the reasons that follow –
a)I dismiss the wife’s application to stay this proceeding; and
b)I grant an anti‑suit injunction restraining the wife from further prosecuting the proceeding she began in State B.
A short factual narrative
The important facts may be briefly stated. The wife and husband commenced living together in late 1996 and married in Australia in 1998. The wife and husband have two children, one 20 years of age and the other nearly 14 years of age.
In May 2012 the husband, the wife and their daughters moved to State B, USA, to enable the husband to pursue business opportunities in that state. All four acquired US permanent residency status in December 2014.
On 21 April 2017 the wife informed the husband that she intended to end the marriage. It seemed that the husband and wife kept their fragile marital status to themselves as they continued to live as a family and did not inform the outside world they were separating. The husband and wife continued to live together as a family until 10 February 2018 on which date the husband commenced living in separate accommodation. In July 2018 the wife and children returned to Australia to live permanently in Australia.
In accordance with the provisions of the State B Family Collaborative Law Act, the husband and wife bound themselves to the legislative regime provided for under that act to explore collaborative methods for resolving their differences. The intricacies of that regime are set out below. For present purposes it is sufficient to record that the State B Family Collaborative Law Act enabled persons to participate in a dispute resolution procedure known as family collaborative law intended to resolve family law disputes in a voluntary, non‑adversarial manner without court intervention. The legislation expressly stated as follows –
All participants in the family collaborative law process understand and agree that the process is intended to replace litigation and that the process will terminate if either party or either attorney commences a proceeding related to the subject matter to be addressed through the family collaborative process before a court or other tribunal other than to seek incorporation of a settlement agreement into a final judgment.
The wife stated in her affidavit made 8 March 2019 that she and the husband commenced the collaborative divorce process by executing a document called a collaborative process participation agreement on 15 November 2017. That led to negotiations over the ensuing six months culminating in a draft marriage settlement agreement produced on 9 May 2018 and a draft proposed parenting agreement produced on 18 May 2018. The wife stated in her affidavit that on 23 August 2018 she filed a proceeding in the Superior Court of State B. On that day, court administrators wrote to the wife’s US attorneys, C Family Law, informing that firm that the case would not be assigned to a specific judge until documents were received in response to the divorce complaint. On 4 September 2018 C Family Law provided an acknowledgment of service document to the husband’s attorneys and on 7 September 2018 the husband’s attorneys duly acknowledged service of the summons and complaint for divorce.
The wife put in evidence an unexecuted marital settlement agreement. However, she stated in paragraph 14 of her affidavit made on 8 March 2019 that on 7 September 2018 she and the husband participated in a four‑way conference with lawyers “reaching agreement on finances, division of property, custody arrangements, alimony and child support” (her words). That settlement was not borne out by the documentation. The marital settlement agreement was not executed. The wife contended that it incorporated modifications previously canvassed and agreed. That contention was not readily supported. The wife directed me to exhibit 5 of her affidavit. That was a lengthy memorandum containing what appeared to be the husband’s position in response to certain proposals put by the wife. In very many instances, the husband rejected the proposal put by the wife. In the final sentence of the document the husband stated –
The only acceptable position is a complete agreement that closes out all matters.
To my mind, that was a strong indication that agreement had not been reached on key issues, despite the wife’s construction of the same events to the effect that agreement had been reached “on finances, division of property, custody arrangements, alimony and child support”. As a matter of Anglo Australian jurisprudence, the question whether or not a concluded binding contract, in law, has come into existence is a question of fact. In determining that question, the court considers all relevant facts, a proposition espoused as long ago as the turn of the 19th century in the House of Lords decision in Hussey v Horne‑Payne[1] as adopted by the High Court of Australia in Howard Smith & Co Ltd v Varawa.[2] In view of the final sentence recorded in the document being exhibit 5 of the wife’s 8 March 2019 affidavit, it could not be said that a concluded binding agreement was manifested in the draft marital settlement agreement.
[1] [1879] 4 AC 311.
[2] (1907) 5 CLR 68.
Returning to the chronological narrative, the wife stated in paragraph 16 of her affidavit that she requested her US attorneys to file for default divorce as the husband had not responded over more than 60 days to the summons earlier served on him. The wife stated that on 5 February 2019 the initiating application in this proceeding was served on her so she scanned the documents with which she was served and sent them to C Family Law and requested C Family Law to apply for default judgment which she said was duly entered on 5 February 2019. The documents that she produced as exhibit V supported her request for default judgment. The wife did not demonstrate that default judgment had in fact been entered in response to at her request. Ms C of C Family Law, the wife’s attorneys, made an affidavit on 17 March 2019 in which she deposed to having represented the wife since 15 November 2017. Ms C was admitted to the Bar of the State of State B and the US District Court of State B in 2007 and the Bar of the State of State T in 2008. Ms C deposed to extensive experience in matters of matrimonial law, family law and guardianship. Ms C deposed in her affidavit to the events of 5 February 2019. She said the following –
14.On February 5, 2019, I filed Request to Enter Default pursuant to R. 4:43-1 and R. 4:43-2. It is customary in [State B] for one party to file for default in settled cases where the other party does not wish to participate in the court proceedings. In these cases, the Court will proceed with the divorce at the Default Hearing and enter a Final Judgment of Divorce incorporating the parties' settlement agreement by reference.
15.As per my office’s conversation with the Family Division Manager’s office on March 15, 2018, a Default Hearing will be scheduled in this matter 8-12 weeks from the filing of the Request for Default on February 5, 2019, or in or about April 2019. An applicant must file a Notice of Proposed Final Judgment and Equitable Distribution pursuant to R. 5:5-10 within 30 days of the Default Hearing. There is no requirement that the Notice be filed immediately. Moreover, in settled cases, the Notice of Proposed Final Judgment consists simply of a copy of the parties’ Settlement Agreement.
16.As [Mr Hillam] terminated the Collaborative process by operation of law in unilaterally filing his action in Australia, I have filed a Substitution of Attorney with the [Superior Court of State B, D County] removing myself and my firm from the litigation in [State B].
17.Upon information and belief, [Ms Barret] has no intention to voluntarily dismiss her action in State B, the State of State B having properly obtained personal jurisdiction over [Mr Hillam], and [Ms Barret] shall fully and actively prosecute the divorce in [Superior Court of State B, D County], said action now proceeding in due course.
From that information it is a fair distillation of the evidence that –
a)on a date in April 2019, the precise date of which has not yet been stated, a default hearing will be conducted in this case;
b)Ms C will not represent the wife in that default hearing; and
c)in any default hearing, the settlement agreement will be produced.
In this case no executed settlement agreement exists.
Another State B attorney, Ms G, made an affidavit in this proceeding. The husband relied on that affidavit. In it Ms G deposed to having practised law in State B for more than 30 years. She said she had been retained by the husband in this proceeding and in the proceeding in State B. She said the State B court had not yet assigned a judge to the proceeding in State B and that the proceeding in State B had not been listed for case management nor had any substantive steps been taken in the State B proceeding other than the wife’s application having been filed. Ms G observed in her affidavit that it is questionable whether Ms C may be estopped from representing the wife in the State B proceeding by reason of Ms C having represented the wife in the collaborative law process.
Ms G said that under State B law, the wife is required to take certain steps in the State B proceeding and the wife has not taken those steps. Ms G said that the wife is required to file a notice of final judgment which particularises and quantifies the wife’s claim. Ms G said the wife is required to file evidence about the financial circumstances of the parties on which the State B court can proceed. Ms G said that the husband will have 30 days within which to respond, once the notice of final judgment is filed. Ms G said the wife has not filed or served on the husband a notice of final judgment. She disputed the wife’s contention in which the wife stated that final judgment in the US court was imminent.
Several matters emerged from Ms G’s affidavit. The first related to Ms C’s entitlement to represent the wife in the State B proceeding having regard to the fact that Ms C represented the wife during the collaborative process and under the State B Family Collaborative Law Act. Various provisions make stipulations about the parties’ legal representatives continuing to represent a party in litigation subsequent to the collaborative process. As to that matter let me say that it is not proper for me as a Justice of a superior court in Australia to embark upon a consideration of matters done or to be done in another foreign jurisdiction. The principle of non‑adjudication is a long established and widely recognised principle of international law. The principal may be expressed in the notion that courts of one country will not sit in judgment of the acts of the government of another done within its own territory. The principle is of very great antiquity, emanating in the world’s common law courts in such cases as Underhill v Hernandez[3] and Oetjen v Central Leather Co.[4] In the latter case the Supreme Court of the United States explained the rationale of the rule to be embedded in international comity. There the Supreme Court held as follows –
To permit the validity of the acts of one sovereign state to be reexamined and perhaps condemned by the courts of another would very certainly ‘imperil the amicable relations between governments and vex the peace of nations.’
[3] (1897) 168 US 250.
[4] (1918) 246 US 297.
This principle of non‑adjudication is consistent with the international rule of comity which refers to the respect or courtesy accorded by one country to the laws and institutions of another. When sitting as a judge of the Federal Court of Australia, the Honourable Justice Gordon (now of the High Court of Australia) spoke of the principle of non‑adjudication in Mokbel v Attorney‑General for the Commonwealth of Australia.[5] The principle has deep roots in federal jurisprudence in international law, as was explained by the High Court of Australia in Attorney‑General for the United Kingdom v Heinemann Publishers Australia.[6] The House of Lords in the United Kingdom likewise adopted a similar approach in Buttes Gas & Oil Co v Hammer (No 3)[7] in which Lord Wilberforce held that the principle of non‑adjudication is one of “judicial restraint or abstention” and is “inherent in the very nature of the judicial process”.
[5] (2007) 162 FCR 278 (at [59]).
[6] (1988) 165 CLR 30.
[7] [1982] AC 888.
A large number of decisions of Australian courts have embraced the principle of non‑adjudication. Those include Voth v Manildra Flour Mills Pty Ltd,[8] McCrea v Minister for Customs and Justice,[9] Gamogab v Akiba,[10] Cabal v United Mexican States (No 3)[11] and Todhunter v Attorney‑General (Cth),[12] to name but a few.
[8] (1990) 171 CLR 538.
[9][2004] FCA 1273
[10](2007) 159 FCR 578.
[11][2000] FCA 1204
[12](1994) 52 FCR 228.
So far as decisions on point in courts in the United Kingdom are concerned, they are numerous as well. They include Royal Government of Greece v Governor of Brixton Prison,[13] R v Secretary of State for the home Department; ex parte Hill[14] and R v Secretary of State for the Home Department; ex parte Johnson.[15]
[13] [1971] AC 250.
[14] [1999] QB 886.
[15] [1999] QB 1174.
There are others.
That short survey is sufficient to indicate that it is not appropriate for me to express any view about the conduct of any aspect of the proceeding in State B. The entirety of that litigation is for the courts of State B. To say anything beyond that is to risk imperilling amicable relations between nations, something I shall not do.
Having said that and having read and considered the affidavits of two practitioners of the state of State B who have deposed to the procedures in courts of State B, it seemed that the State B proceeding has quite a way to travel before the subject matter of it comes to being assessed by a State B judge. According to Ms G, the wife is yet to particularise and quantify her claim.
The assets to be divided
In discussions between the wife and Mr Ellis for the husband on 19 March 2019 I raised with them the identification and location of assets that remain to be divided between the parties. The husband’s assets located in the United States include the proceeds of the sale of his partnership interest (I assume he meant his shareholding) in an information technology company in the United States. The husband tabulated the assets to be divided in this case as follows –
Description
Owner
Value (AU$)
US cash at bank
Mr Hillam
187,107
Money paid to Ms Barret from property sales
Ms Barret
191,174
US business sale proceeds
Mr Hillam
292,200
US tax on business sale proceeds
Mr Hillam
Not known
US life insurance redemption (est.)
Mr Hillam
69,444
Net assets
739,925
Australian superannuation
Mr Hillam
131,943
Australian superannuation
Ms Barret
E40,000
Superannuation
171,943
Net assets + superannuation
911,868
The husband stated that the purchaser of his interest in the information technology company failed to pay an instalment of US $7 500 that fell due on 31 January 2019 and that the governing law and venue for disputes under that sale agreement is State Q, USA. Irrespective of the outcome of the two applications in this case, the husband may well be required to pursue litigation in State Q in relation to an unpaid debt of $7 500. That claim would take the form of a common law debt against the purchaser of his interest in the husband’s company.
The husband stated in paragraph 18 of his affidavit that he is willing to transfer his cash savings to an Australian financial institution.
State B Family Collaborative Law Act
As has been recorded in the passages above, on 15 November 2017 the husband and wife invoked the provisions of the State B Family Collaborative Law Act by executing a collaborative process participation agreement. In the preamble to that agreement, the parties recorded that they had chosen to use the collaborative process pursuant to the State B Family Collaborative Law Act to resolve the issues arising from their separation and dissolution of marriage without the intervention of a court or a tribunal. In clause one of the agreement, the parties recorded their purpose in undertaking the collaborative process as being, among other things, the minimisation if not the elimination of litigation. In clause two of the agreement the parties set out the imperatives of honesty, cooperation and commitment that they would exhibit in searching for a resolution of the dispute without court intervention. In clause three the parties incorporated in schedule A the roles that were called “collaborative professionals”, namely collaborative divorce attorneys, collaborative coaches, collaborative child specialists and collaborative financial specialists. In the schedule the roles of each was set out.
In clause eight the collaborative process participation agreement made provision for beginning and terminating the collaborative process. It stated that the process began upon the parties signing the agreement. It stated that the process concluded upon resolution as evidenced by a signed document upon termination in the manner set out in s D‑6 of the State B Family Collaborative Law Act. In fact, it was s D‑7 of the Act and not s D‑6 that addressed termination. The agreement incorporated clause nine that addressed the circumstances when the collaborative process was terminated. That clause mirrored s D‑7 of the Act. Relevantly, the process terminated when either party commenced a judicial or other adjudicative proceeding relating to the subject matter of the dispute without joint agreement.
Clause 10 of the agreement addressed the enforceability of temporary or partial agreements reached out of the collaborative process. That clause stated that a final agreement could be filed with a court for enforcement.
Clause 11 was headed “cautions and limitations”. It was in the following terms –
In electing the Collaborative Process, we understand that there is no guarantee that the process will be successful in resolving our case. We understand that the process cannot eliminate concerns about any disharmony, distrust or irreconcilable differences which have led to the current conflict. While intent on striving to reach a cooperative solution, success will ultimately depend on our commitment to making the process work. We understand that we are still expected to assert our respective interests and our respective lawyers will help each of us to do so.
As it happened, no agreement was reached. The husband did not execute any agreement – whether temporary, partial or final – to resolve the issues between the parties. Nevertheless, the wife commenced a proceeding in the Superior Court of State B. In that proceeding the wife did not seek orders enforcing an agreement relating to the resolution of their disputes. Instead, she commenced a conventional family law proceeding in which she sought orders dissolving the marriage, orders in the nature of time with the children, alimony and orders for the distribution of property.
As mentioned earlier in these reasons, the wife and children currently reside in Australia. The husband currently resides in State M. Mr Ellis for the husband submitted that neither party has a residential connection to State B and no property exists in State B to connect the parties to State B. He said no income was earned in State B nor was there superannuation in State B. Mr Ellis said that in mid 2020 the husband intends to return to Australia where he will live permanently. Mr Ellis said no court other than an Australian court has power to make orders in relation to superannuation. Mr Ellis submitted that a State B court would not have jurisdiction to deal with parenting orders of a child who does not reside within its borders.
Ms Barret appeared in person. Let me say at once that she conducted herself impeccably and presented arguments in support of her position with care and precision. As with the submissions of Mr Ellis I was very much assisted by what Ms Barret had to say. The following was a fair distillation of her main propositions –
a)she appeared in this court under protest lest her appearance could be construed as accepting the jurisdiction of this court as she maintained that this court has no jurisdiction;
b)she and the husband lived in State B for six and a half years;
c)she and the husband embarked on the collaborative method of attempting to resolve their differences, the process taking 18 months, costing (so she said) $70 000, resulting in the sale of two properties that they owned in State B and also resulting in the distribution of the proceeds of those sales;
d)she said in her affidavit that she and the husband “spent 18 months and more than $70 000 discussing, negotiating, documenting, modifying and finalising a very comprehensive marriage settlement agreement covering every aspect of the divorce, distribution of property, financial settlement, custody arrangements, child support and alimony”; and
e)she said the arrangement was not written and since 18 October 2018 she has been waiting for the husband to sign documentation.
I asked the wife why she wanted the litigation to go ahead in State B. Her answer was revealed in the following exchange –
HIS HONOUR: Right. Can you just help me with why you want this case heard and determined in the United States?
[MS BARRET]: The answer is because it was finished. It was just sitting there waiting for his signature.
HIS HONOUR: But he hasn’t signed it.
[MS BARRET]: That’s right. So everything has been done and negotiated and discussed and modified to his liking over the last 18 months. Every single document has been prepared and written, and it’s ready for the final stamp, and he simply will not sign it because he doesn’t like the State B ruling. He doesn’t like the fact that I have been awarded alimony. And so he’s forum shopping and coming back here to try and start the whole process again so that he can have a divorce that doesn’t have alimony.
The wife’s characterisation of this proceeding as being the result of forum shopping was unfortunate. The husband was entitled to exercise whatever rights that he considered inured to his benefit. It then fell to me to assess the matters of private international law as were raised in this case.
Further, Mr Ellis for the husband took issue with the wife’s assertion that negotiations in the United States culminated in an agreement. He said no agreement had been reached.
Section D‑7(1) of the State B Family Collaborative Law Act provides that the collaborative process contemplated under the legislation is concluded by resolution of the family law dispute “as evidenced by a signed settlement agreement”. As has been made apparent from the foregoing, no such settlement agreement was the upshot of negotiations between the parties. That may well explain why the wife’s proceeding in the Superior Court of State B seeks elementary orders that are commonplace when family law litigation is commenced where neither party seeks to enforce a settlement deed.
The anti‑suit injunction
In the husband’s application in a case he sought in paragraph one the following order –
Pending the determination of Family Court of Australia of these proceedings, the Wife is hereby restrained and an injunction hereby issues restraining the Wife from commencing or continuing any matrimonial proceedings in [State B], United States of America, save to the extent necessary to seek recognition and enforcement of any orders made by this Honourable Court in these proceedings.
It will be at once apparent that the application in a case was expressed pointedly to seek an in personam restraint on the wife from commencing or continuing any matrimonial proceeding in State B, USA. As such a proceeding has already been commenced by the wife in the Superior Court of State B, the husband’s application for an injunction can only relate to the continuation of that proceeding.
Further, the husband’s application seeks to enjoin only the wife and not a third person. As a result, the provisions of s 90AF of the Family Law Act were not enlivened. For the same reason the observations of Gibbs J about third parties in Ascot Investments Pty Ltd v Harper[16] were not relevant to the facts of this case.
[16] (1981) 148 CLR 337.
The legislative power to make an order in the nature of an anti‑suit injunction has been said to be reposed in s 34 of the Family Law Act or in the inherent jurisdiction of this court conferring upon it power to make necessary and appropriate orders to avoid injustice. That view was espoused in Hunt & Hunt.[17] In CSR Ltd v Cigna Insurance Australia Ltd[18] the High Court of Australia held (eight years earlier) that the power to grant an anti‑suit injunction is not restricted to confined or closed categories and is to be exercised when the administration of justice requires or where such an order is necessary for the protection of the court’s own proceedings or process.
[17] [2005] FamCA 849.
[18] (1997) 189 CLR 345
It seemed to me that two main issues fell for consideration in my determination of the husband’s application for an anti‑suit injunction. The first related to this court’s power to make such an order. The second was whether the jurisdiction should be exercised in the circumstances of this case.
In response the first, an abundance of authority exists to the effect that it is within power for this court to restrain a party to a proceeding in this court from conducting a proceeding raising similar issues in another court. An early illustration is the decision of the Full Court of the Family Court In the Marriage of Gillies.[19] Like this case, that case concerned an application to restrain the continuation (nor the commencement) of a proceeding in the Supreme Court of New South Wales. In separate reasons, each member of the Full Court dismissed the appeal from Hogan J who had granted the injunction restraining the continuation of the Supreme Court litigation. On appeal Evatt CJ held that this court as well as the Supreme Court of New South Wales had power to prevent the abuse of process that could arise from such a circumstance by either staying its own proceeding or by restraining a party to its own proceeding from continuing a proceeding in the other court. In reaching that conclusion, Evatt CJ relied on the reasoning in Reynolds & Reynolds,[20] Tansell v Tansell,[21] Sieling & Sieling[22] and St Justins Properties Pty Ltd v Rule Holdings Pty Ltd.[23] Evatt CJ also held that by making an order restraining the mother from pursuing her case in the Supreme Court, the mother was not deprived of a proper opportunity to have her claims determined, that is to say, Evatt CJ held that the mother’s substantive rights were not affected by the grant of the injunction.
[19] (1981) 7 Fam LR 106.
[20] (1977) 33 FLR 232.
[21] (1977) 3 Fam LR 11.
[22] (1979) 4 Fam LR 713.
[23](1980) 40 FLR 282.
In Gillies, referring to the same authorities as those on which Evatt CJ relied which are set out immediately above, Fogarty J held that an order in the nature of a restraint enjoining a party to a proceeding in this court from conducting a proceeding raising similar issues in another court was “clearly within power”. Further, Fogarty J placed store on the identity of the parties as being relevant in the two pieces of litigation (here, the litigation in this court and the litigation in the Superior Court of State B) for the purposes of issues arising in the High Court’s decision in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd.[24]
[24](1981) 148 CLR 457.
In 1997 the High Court of Australia pronounced upon aspects of the anti-suit injunction in CSR Ltd v Cigna Insurance Australia Ltd.[25] That case was not concerned with family law. It arose out of a dispute in relation to policies of insurance said to have responded to asbestos-related claims. Litigation arose in the Supreme Court of New South Wales as well as in the United States District Court in the District of State B. CSR interests applied to stay the proceeding in the Supreme Court of New South Wales. After determination by a single judge then by the Court of Appeal of the Supreme Court of New South Wales, the High Court made a collection of observations about the anti‑suit injunction. Those may be synthesised in the following manner –
[25] (1997) 189 CLR 345.
a)an order enjoining a party from commencing or pursuing a proceeding in a foreign court which has jurisdiction to determine the same controversy can only be exercised where an equity arises entitling one party as against the other to an injunction to restrain the other from proceeding in the foreign court;
b)it is not possible determine in advance the circumstances that give rise to such an equity, as was held in SociétéNationale Industrielle Aerospatiale v Lee Kui Jak;[26]
c)such an equity arises when it would be unconscionable for the party enjoined to proceed in the foreign tribunal;
d)as was held in Castanho v Brown & Root (UK) Ltd[27] the jurisdiction to issue an anti-suit injunction is not directed against the foreign court but against the party who would invoke that court’s jurisdiction and the order is made “where it is appropriate to avoid injustice”;
e)the making of an order restraining a person within the jurisdiction from pursuing a remedy in a foreign court where that person has a cause of action must be approached with caution because such an order is an interference with the process of justice in that foreign court, as was held in British Airways Board; British Caledonian Airways Ltd v Laker Airways Ltd;[28]
f)the power to grant an anti‑suit injunction should not be exercised without the court concerned first considering whether its own proceeding should be stayed and, in determining whether its own proceeding should be stayed, the test is as stated in Voth v Manildra Flour Mills Pty Ltd[29] and in Oceanic Sun Line Special Shipping Co Inc v Fay,[30] namely, a stay will only be granted if the Australian court is a clearly inappropriate forum;
g)the counterpart of the court’s power to prevent its process from being abused is its power to protect the integrity of those processes once set in motion as was held in Jackson v Sterling Industries Ltd[31] and Witham v Holloway;[32]
h)the inherent power to grant an anti‑suit injunction is not restricted to defined or closed categories, as was held in Hamilton v Oades[33] and Jago v District Court of New South Wales;[34]
i)the power to grant an anti‑suit injunction is to be exercised when the administration of justice so demands or where necessary for the protection of the court’s own proceedings or processes; and
j)if the Australian court decides that it is clearly an inappropriate forum, that will be the end of its involvement in the occasion for considering whether to grant an anti‑suit injunction or other relief or, if the Australian court reaches the opposite conclusion, namely, that it is not a clearly inappropriate forum, then it must go on to determine whether to require the applicant to seek a stay or dismissal of the foreign proceeding or to grant an anti‑suit injunction.
[26] [1987] AC 871.
[27][1981] AC 557.
[28] [1985] AC 58.
[29] (1990) 171 CLR 538.
[30] (1988) 165 CLR 197.
[31] (1987) 162 CLR 612.
[32] (1995) 183 CLR 525.
[33] (1989) 166 CLR 486.
[34] (1989) 168 CLR 23.
From 2007 a rash of decisions in this court arose from applications for orders for the grant of anti‑suit injunctions. In Christie v Christie[35] Cronin J was concerned with an anti-suit injunction application involving parties beyond the wife and husband. His Honour addressed principles relevant to anti‑suit injunctions including whether a serious matter to be tried had been raised in the proceeding and how, on the facts of that case, the court was endeavouring to protect its process by the grant of injunctions against persons who had participated in that process. His Honour also addressed issues relevant to s 78B(5) of the Judiciary Act holding that the provision did not prevent the court from hearing and determining a proceeding where urgent relief of an interlocutory nature was sought and where the court considered that it was necessary in the interests of justice to hear and determine the application.
[35] (2007) 37 Fam LR 181.
In Lederer v Hunt,[36] the Full Court (Bryant CJ, Finn and Boland JJ) provided a detailed examination of principles relating to anti‑suit injunctions in the context of a complex tapestry of company shareholdings. In that case the Full Court proceeded on the presupposition (in respect of which no party took issue) that in appropriate circumstances the Family Court had power to grant an anti‑suit injunction, whether grounded in s 34 of the Family Law Act or in the inherent or implied jurisdiction of the Family Court to make necessary and appropriate orders so as to avoid injustice. On that issue the Full Court followed the reasoning in D v L.[37] The court also adopted the reasoning of Nygh J in the Marriage of Baba and Jarvinsen[38] where his Honour referred to Smith & Saywell[39] and to the proposition that this court, having jurisdiction to make an order restraining a party from proceeding in another court, should take such “an extreme step” only “when it is absolutely essential”. On my reading of CSR Ltd v Cigna Insurance Australia Ltd[40] the threshold for the grant of an anti‑suit injunction is not so high. Inthe Marriage of Baba and Jarvinsen,[41] Nygh J refused the application for an anti‑suit injunction on considerations of justice and judicial comity.
[36] (2007) 36 Fam LR 587.
[37] (2005) 33 Fam LR 525.
[38](1980) 6 Fam LR 276.
[39](1980) 6 Fam LR 245.
[40](1997) 189 CLR 345.
[41](1980) 6 Fam LR 276.
The Full Court in Lederer v Hunt[42] addressed the complex argument advanced by Mr Hammerschlag SC (now Hammerschlag J of the Supreme Court of New South Wales) about the equitable foundation for the grant of an anti‑suit injunction. The analysis involved a consideration of several English authorities including Carron Iron Co Proprietors v James Maclaren, Henry Dawson, E H Tibbats Stainton,[43] SociétéNationale Industrielle Aerospatiale v Lee Kui Jak,[44] Peruvian Guano Co v Bockwoldt[45] and Bank of Tokyo Ltd v Karoon[46] in which it was held that the power to stay foreign proceedings that were vexatious or oppressive was a proper power derived from equity – to serve equity and good conscience. The Full Court, in applying CSR Ltd v Cigna Insurance Australia Ltd[47] held that the learned trial judge did not err in granting the anti‑suit injunction.
[42] (2007) 36 Fam LR 587.
[43] (1855) 10 ER 961.
[44] [1987] AC 871.
[45] (1883) 23 Ch D 225.
[46] [1987] AC 45.
[47] (1997) 189 CLR 345.
On 4 March 2011 O’Reilly J handed down judgment in Whung & Whung[48] involving an application for an anti‑suit injunction in relation to a proceeding on foot in the Taiwan Republic of China. The husband had commenced a proceeding for divorce in April 2010 in the H District Court in Taiwan. A divorce was granted in November 2011. The wife appealed against the divorce decree. In June 2010 the wife commenced a proceeding in this court seeking orders for the division of property in relation to her marriage with the husband. In that proceeding the wife joined as the second respondent an adult son of the husband’s marriage with his first wife as well as an adult son of her marriage. The third respondent had earlier commenced a separate proceeding against the wife seeking declaratory and other relief in the Supreme Court of Queensland in which he alleged fraud in respect of money belonging to him. Several applications were dealt with by O’Reilly J. Her Honour proceeded by addressing first the husband’s application for a stay of the wife’s proceeding and, if it were determined that the Family Court of Australia was a clearly inappropriate forum for the wife’s property claim against the husband, it would be unnecessary for her Honour to consider the wife’s application for anti‑suit injunctions. However, O’Reilly J said that if her Honour took the view that the Family Court was not a clearly inappropriate forum for the wife’s property claim, then it was necessary to consider and determine the applications for anti‑suit injunctions. That much was in accordance with the sequence decided by the High Court in CSR Ltd v Cigna Insurance Australia Ltd.[49]
[48](2011) 45 Fam LR 269.
[49](1997) 189 CLR 345.
Relying on the observations of the High Court in Voth v Manildra Flour Mills Pty Ltd[50] and in Henry v Henry,[51] O’Reilly J held that the relevant test is whether the local court is a clearly inappropriate forum. In answering that enquiry, a court determines the competing advantages and disadvantages arising from continuing with a proceeding in the selected forum. Citing Henry v Henry, her Honour held that it is relevant to consider whether jurisdiction exists in the court of another forum to deal with the same subject matter which is before the Australian court and the stage which that other proceeding had reached in that other forum.
[50](1990) 171 CLR 538.
[51](1996) 185 CLR 571.
As opposed to the State B case in the State B court, this court is concerned with an application for orders in relation to Australian superannuation funds with which the State B court has no power to deal. That proposition went some way in the husband’s favour to take this case out of the category of cases canvassed in Henry v Henry where the majority spoke of the “same controversy” being agitated simultaneously in proceedings in different countries. In Davies, Bell and Brereton’s, Nygh’s Conflict of laws in Australia[52] the learned authors cautioned against using metaphors such as balancing and weighing considerations and instead stated that the judge’s task involves assessing whether there are enough factors indicating that the forum (here, Australia) is clearly inappropriate in which case a stay should be granted.
[52]LexisNexis, 8th ed, 2010.
Naturally, this court has no power to make orders in relation to real property in a foreign jurisdiction, as the rule in British South Africa Co v Companhia de Mocambique[53] stipulates.
[53][1893] AC 602.
Returning to Whung & Whung,[54] O’Reilly J relied on Henry v Henry which addressed the desirability of there being complete resolution of the matters involved in the parties’ controversy. In this case the State B court will be unable to address the parties’ Australian superannuation. To that extent, the proceeding in this court will deal with all matters in the controversy between the parties whereas the State B litigation in the State B court will not. Far from the proceeding in this court being clearly inappropriate, it seemed to me that the parties’ litigation in this court will be more likely to resolve all issues in controversy between them.
[54](2011) 45 Fam LR 269.
It is also pertinent to consider the stage which each proceeding has reached. That has been set out above in relation to the State B proceeding. It seems it has gone no further than an application having been filed. The case has not yet been allocated to a judge. Conversely, in relation to this proceeding, the wife is a resident of Australia, the children reside in Australia and various assets are located in Australia.
On the stay application I am not persuaded that this court is a clearly inappropriate forum.
It then became necessary to determine whether to grant an anti‑suit injunction. O’Reilly J condensed the bases for the grant of such an order to two. The first was sourced in this court’s inherent power to prevent its processes from being abused and its power to protect the integrity of those processes. The second was the power derived from the Courts of Chancery to make orders in restraint of unconscionable conduct or in the unconscientious exercise of legal rights or where, upon equitable principles, the commencement or continuation of a proceeding in a foreign court would, according to equitable principles, be vexatious or oppressive. CSR stands for both prepositions.
Before leaving the subject it is useful to record the distillation of principle on which Berman J proceeded in an application for an anti‑suit injunction in Jess & Jess.[55] Most of the authorities mentioned in the foregoing paragraphs were addressed by Berman J. However, for reasons relevant to the facts of that case, Berman J examined some of the learning of the Federal Court of Australia on the subject of anti‑suit injunctions including Pan Australia Shipping Pty Ltd v Ship “Comandate”,[56] BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd[57] and Incitec Ltd v Alkimos Shipping Corporation.[58] To that may be added the recent decision of the Full Court of the Federal Court of Australia in Wileypark Pty Ltd v AMP Limited.[59]
[55] [2013] FamCA 863.
[56] [2006] FCA 881.
[57] (2008) 168 FCR 169.
[58] (2004) 138 FCR 496.
[59] (2018) 130 ACSR 66.
The decision of Berman J in Jess & Jess was unsuccessfully appealed in Jess & Jess.[60]
[60] (2014) 52 Fam LR 43.
It is also useful to record that in Teo v Guan[61] the Full Court (May, Thackray and Crisford JJ) held that the Full Court of the Family Court of Australia had not formally pronounced on the precise source of power for the grant of an anti‑suit injunction in the Family Court of Australia. There, the court held that it was arguable that the power of the Family Court of Australia to grant an anti‑suit injunction arises from a source other than s 34 of the Family Law Act. Yet the court declined to decide the point.
[61] (2015) 53 Fam LR 248.
The jurisdictional basis for the grant of an anti-suit injunction again came before the Full Court of the Family Court of Australia in Cole v Abati.[62] There, the Full Court (Thackray, Strickland and Murphy JJ) made three important observations. First, the court referred to statements of principle in the High Court in CSR to the effect that anti-suit injunctions can be granted either in the exercise of an inherent power to protect the court’s processes or in the exercise of the court’s equitable jurisdiction. Second, the court questioned whether the Family Court of Australia was a court of equity. Third, the court proceeded on the footing that it was open to the learned trial judge to grant an injunction in the same circumstances as an injunction could be granted by a court of equity. In the upshot, the Full Court dismissed an appeal from the trial judge’s grant of the anti‑suit injunction.
[62] (2016) 55 Fam LR 329.
In any examination of the factual basis for the grant of an anti‑suit injunction, as opposed to the jurisdictional foundation for the grant of such an order, the Full Court of the Family Court has emphasised the importance of the starting point being an examination of the two proceedings (relevantly here, the case in State B and the case in this court) for the answer to those questions. Those questions are –
i)whether there in truth is but one controversy;
ii)whether complete relief is available in the local jurisdiction; and
iii)whether something is to be gained in the foreign proceeding.
That analysis was espoused in Lan & Hao(No 2).[63] On the facts of that case it was argued that the Chinese court could not deal with the property in Australia with the consequence that there had to be a proceeding on foot in Australia to address that issue. The Full Court posed the question for determination in the following terms –
Thus, in accordance with these statements of principle, we consider that the path her Honour should have taken was first to consider the nature of the proceedings in China 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.
[63] (2017) 325 FLR 1.
The Full Court took the view that the wife did not live in Australia and only had assets in China with the consequence that the only prospect the husband had of obtaining any enforceable order for the payment of money to him was to obtain such an order in China. Thus, there was utility in the proceeding in China.
The final decision of the Full Court in my survey of prevailing authorities is Underwood & Underwood.[64] The relevant statement of principle was expressed in the following passages –
[64] [2017] FamCAFC 267.
22.The matter came before the primary judge in a duty list and on the face of the material before the Court there were proceedings in Australia and the USA between the same parties involving the same controversy the continuation of one or the other of which was prima facie vexatious or oppressive in accordance with the test laid down in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554.
23.The approach adopted by the primary judge was therefore appropriate.
From those two paragraphs from Underwood & Underwood it will be immediately apparent that the court was focusing on the stay application rather than the thorny questions associated with the anti‑suit injunction.
Applying the law to this case
The competing applications for determination were the wife’s application to stay this proceeding thereby enabling her to prosecute the State B case and, against that, the husband’s anti‑suit application to restrain the wife from further prosecuting the State B proceeding thereby enabling him to advance all issues between the parties in this court.
In my view orders should be made as follows –
a)the application to stay this proceeding is dismissed; and
b)an anti‑suit injunction is granted enjoining the wife from continuing with the State B proceeding.
This proceeding in the Family Court of Australia is not a clearly inappropriate proceeding. The wife lives in Australia. The children live in Australia. The husband will soon return to Australia to live permanently in Australia. The assets to be divided will be or are presently in Australia. No connection to State B presently exists. The husband is in the process of departing State M. Whatever may be the full extent of the subject matter of the dispute between the parties can be decided fully and exhaustively in this court. The husband has applied for an administrative assessment of child support by the Department of Social Services. The wife is in the process of re‑establishing a business in Australia.
In respect of ongoing issues of parenting, this court can provide complete resolution of the controversy in relation to the one minor child. Conversely, in State B no impediment exists to the court in that jurisdiction from making parenting orders. Any such orders could then be registered in Australia. If it became necessary for those orders to be altered, this court’s jurisdiction would need to be enlivened. Further, as the minor child lives in Australia, it makes no sense for a foreign court with no apparent connection to the parties to be seized of jurisdiction to determine parenting orders.
So far as child support issues are concerned, the husband has already applied for an administrative assessment of child support. Of course, it is conceivable that the husband’s application may be rejected. Assuming that an application is made to the State B court for child support and that an order is granted for child support, it becomes an overseas maintenance liability. Such order may be subsequently registered as an overseas maintenance liability in Australia. That order will cease by force of s 152(2) of the Child Support (Assessment) Act upon the registrar accepting an application for a child support assessment once the husband returns to Australia.
So far as adult child maintenance is concerned, this court has jurisdiction,
Likewise with spousal maintenance.
The situation with the parties’ property has been examined above. There is no property in State B. A modest debt remains enforceable in a court of competent jurisdiction in the United States. That may not necessarily be State B.
As to superannuation, both have superannuation. Only an Australian court may make superannuation splitting orders.
The husband’s entitlement to the proceeds of the sale of a business is governed by the laws of State Q not State B.
The State B proceeding is at an embryonic phase with no judge yet allocated to the case.
In making the above comments I recognise that the State B litigation was commenced first in time. That litigation was filed by a legal practitioner who is not permitted to remain in the litigation as she was deeply involved with the collaborative negotiations. Those negotiations failed to culminate in the resolution of the dispute.
In my view, this court is not a clearly inappropriate forum. In my view, it is clearly the most appropriate forum to determine the controversy in this case.
Next, it fell to me to consider the anti-suit injunction. I am persuaded that in accordance with the learning surveyed above it would be vexatious or oppressive for the wife to be permitted to continue with the State B litigation. An order should be made restraining her from doing so. I make such an order.
In addition to those orders I direct this proceeding be dealt with further by a registrar of this court.
I certify that the preceding seventy‑nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 2 April 2019.
Associate:
Date: 2 April 2019
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