Hughes & Hughes - [2014] FamCA 12

FAMILY COURT OF AUSTRALIA

HUGHES & HUGHES

[2014] FamCA 12

FAMILY LAW – PROPERTY – Where the husband has instituted proceedings in Croatia and the wife has instituted proceedings in Australia – where the wife seeks a declaration that the Family Court of Australia is the appropriate forum and an anti-suit injunction preventing the husband from taking further steps in the Croatian proceedings – where the husband has not sought a stay of the Australian proceedings.

Family Law Act 1975 (Cth)

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
Henry v Henry [1996] HCA 51

APPLICANT:

Ms Hughes

RESPONDENT:

Mr Hughes

FILE NUMBER:

DGC

2378

2013

DATE DELIVERED:

17 January 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

18 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirkham QC with Ms McCreadie

SOLICITOR FOR THE APPLICANT:

Reale Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hall

SOLICITOR FOR THE RESPONDENT:

White Cleland Pty Ltd

ORDERS

IT IS ORDERED THAT

Until further order the husband is restrained from taking any further step in the legal proceedings instituted by the husband in Croatia on 15 July 2013.
The wife’s application in a case filed 10 October 2013 and the husband’s response to an application in a case filed 26 November 2013 be otherwise adjourned for hearing in the Judicial Duty List at 10.00 am on 5 February 2014.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2378 of 2013

Ms Hughes

Applicant

And

Mr Hughes

Respondent

REASONS FOR JUDGMENT

The application listed before me in the judicial duty list is the wife’s application in a case filed 10 October 2013 in which she seeks a declaration that the Family Court of Australia is the appropriate forum for the hearing of her application for property settlement and spousal maintenance and an order that the husband be restrained from taking any further step in the proceedings instituted by him in Croatia on or about 15 July 2013.
The husband has filed a response to that application in a case in which he seeks that the wife’s application in a case be dismissed, that she sign all documents necessary to remove the caveats encumbering the two properties registered in his name or the names of entities in which he holds an interest, and that the wife pay his costs of these proceedings.
At the commencement of the hearing before me the husband sought an adjournment of the wife’s application pending the outcome of proceedings in Croatia as to whether the Croatian court has jurisdiction to deal with the proceedings he instituted in Croatia. Significantly for the purposes of the application before me, the husband did not seek a stay of the proceedings instituted by the wife in this Court.

Background

The husband was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hughes & Hughes

Details

AGLC: Hughes & Hughes [2014] FamCA 12
Case: [2014] FamCA 12
Decision Date: 17 January 2014

CaseChat Overview and Summary

In *Hughes & Hughes*, the wife sought an injunction to restrain the husband from continuing foreign legal proceedings. The dispute concerned the appropriate forum for resolving matters arising from the parties' marital relationship, with the wife contending that Australian proceedings were the proper venue. The matter came before Macmillan J of the Family Court of Australia.

The primary legal issue before the court was whether to grant an interlocutory injunction restraining the husband from pursuing proceedings he had commenced in Croatia. This required the court to consider the principles governing the grant of such injunctions, particularly in the context of international litigation and the potential for vexatious or oppressive conduct.

Macmillan J reasoned that the wife had established a strong prima facie case for the injunction. The court applied the principles established in cases such as *Voth v Manildra Flour Mills Pty Ltd* and *CSR Ltd v Cigna Insurance Australia Ltd*, which outline the circumstances in which Australian courts may restrain foreign proceedings. His Honour found that the Croatian proceedings were likely to be vexatious and oppressive, and that Australia was the clearly inappropriate forum for the dispute.

Consequently, Macmillan J ordered that the husband be restrained from taking any further steps in the Croatian legal proceedings until further order. The wife's application and the husband's response were otherwise adjourned for further hearing.

Orders

Orders of the court

IT IS ORDERED THAT

Until further order the husband is restrained from taking any further step in the legal proceedings instituted by the husband in Croatia on 15 July 2013.

The wife’s application in a case filed 10 October 2013 and the husband’s response to an application in a case filed 26 November 2013 be otherwise adjourned for hearing in the Judicial Duty List at 10.00 am on 5 February 2014.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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