In the Marriage of Dobson and Van Londen - [2005] FamCA 479

[2005] FamCA 479

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT SYDNEY Appeal No. EA 8L of 2004

and EA 133 of 2004
File No. SYF 2522 of 2003

BETWEEN:

Applicant/Appellant
Husband

-and-

Cross-Appellant Wife

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  Finn, May and Boland JJ
DATE OF HEARING:       10 February 2005 and 3 May 2005
DATE OF JUDGMENT:    10 June 2005

APPEARANCES:

Mr Sheahan of Senior Counsel (instructed by Slade Manwaring) appeared on behalf of the applicant/appellant husband.
Mr Broun of Queens Counsel (instructed by Broun Abrahams Burreket) appeared on behalf of the cross-appellant wife.

APPEAL SUMMARY

MATTER:D & L
APPEAL NUMBER: EA 8L of 2004; EA 133 of 2004
(SYF 2522 of 2003)

CORAM:Finn, May and Boland JJ
DATE OF HEARING: 10 February 2005 and 3 May 2005

DATE OF JUDGMENT: 10 June 2005

CATCHWORDS: FAMILY COURT – LEAVE TO APPEAL – APPEAL – CROSS-APPEAL – ANTI-SUIT INJUNCTION – STAY on forum non conveniens grounds – Proceedings instituted in Australia by the husband for property settlement and parenting orders – Child support assessment made in Australia according to which the husband was making child support payments to the wife – Proceedings instituted in the Netherlands by the wife for divorce, spousal and child maintenance and property settlement – Wife had filed an appearance and a response in the Australian proceedings seeking her own property settlement orders but also seeking a stay of the husband’s application for parenting orders in Australia – Application by the wife for a stay of Australian property proceedings dismissed by trial Judge – Application by the husband for an injunction preventing the wife from prosecuting proceedings in the Netherlands refused by the trial Judge in relation to spousal and child maintenance but granted by the trial Judge in relation to property settlement.
CROSS-APPEAL – Cross-appellant wife appealed the grant of an anti-suit injunction restraining her from prosecuting property settlement proceedings in the Netherlands – Wife found to be amenable to the jurisdiction of the Family Court of Australia as a result of having filed an appearance and sought orders in response to the husband’s application for property settlement orders in that Court.
LEAVE TO APPEAL – APPEAL – Appellant husband sought leave to appeal the dismissal of his application for an anti-suit injunction restraining the wife from prosecuting spousal and child maintenance proceedings in the Netherlands – Principles governing stay orders on the grounds of forum non conveniens and anti-suit injunctions discussed – Relationship between stay orders on forum non conveniens grounds and anti-suit injunctions discussed – JURISDICTION of the Family Court of Australia to grant anti-suit injunctions – Whether trial Judge erred in analysing the husband’s application for an anti-suit injunction from the starting point of treating the wife’s proceedings in the Netherlands as separate causes of action rather than as a single controversy – Whether the foreign proceedings would be vexatious or oppressive – Trial Judge’s discretion found to have miscarried in that the foreign financial proceedings ought to have been treated as arising out of a single matrimonial controversy and particular factors ought to have been taken into account which would have led to a finding that the foreign proceedings were vexatious or oppressive as against the husband.
FAMILY LAW – APPLICATION TO RE-OPEN – APPLICATION TO ADDUCE FURTHER EVIDENCE.
FAMILY LAW – APPEAL – RE-EXERCISE OF THE DISCRETION.

Caselaw cited:

CSR Limited v Cigna Insurance Australia Ltd (1996-1997) 189 CLR 345

Henry & Henry (1995-1996) 185 CLR 571

Carron Iron Co v Maclaren (1855) 5 HLC 416

Bank of Tokyo v Karoon [1987] AC 45

Bennett v Bennett (2001) FLC 93-088

JJT and CTT (2004) FLC 93-198

Leave to appeal granted. Appeal allowed.

Cross-appeal dismissed.

Application to re-open appeal and cross-appeal granted for the limited purpose of enabling the Court to be informed of the husband’s subsequent application for a divorce in the Federal Magistrates Court of Australia.

Discretion re-exercised: injunction restraining the wife from prosecuting Dutch spousal and child maintenance proceedings granted.

Directions made for the filing of written submissions as to costs.

Introduction

On 10 December 2004, Cohen J made orders whereby and relevantly for present purposes he:
·dismissed an application by the wife to stay proceedings brought by the husband in the Family Court of Australia for certain parenting orders in relation to the four children of the marriage of the husband and the wife (Order 2);
·issued an injunction restraining the wife from prosecuting applications filed by her in a Dutch court insofar as those applications sought orders in relation to settlement of property between the husband and the wife (Order 3); and
·dismissed an application by the husband to restrain the wife from prosecuting applications filed by her in the Dutch court insofar as those applications sought orders in relation to spousal maintenance for the wife or child maintenance in respect of the children of the parties’ marriage (Order 4).
Before us, the husband has sought leave to appeal the order dismissing his application to restrain the wife from prosecuting the Dutch proceedings for spousal and child maintenance (Order 4).
Also before us the wife has cross-appealed the order restraining her from prosecuting the Dutch proceedings insofar as they related to property settlement matters (Order 3).
No issue arose before us in relation to the dismissal of the wife’s application for a stay of the Australian proceedings brought by the husband for certain parenting orders (Order 2).
On 21 December 2004 Boland J made directions for the consolidation of the hearing of the husband’s application for leave to appeal with the hearing of his appeal (if leave be granted).

Factual background

The factual background to this matter appears to be uncontroversial and is as follows.
The husband (who had been born in Australia in 1958) and the wife (who had been born in the Netherlands in 1962) commenced cohabitation in New York in August 1987. They were married in Australia in April 1988 and all four children were born in this country between 1990 and 1999. Both the husband and the wife worked as solicitors in Australia.
In July 2002, the wife and the children moved to live in the Netherlands. The trial Judge found that this was with the husband’s consent. The wife and children returned to Australia at some time in 2003, but returned to the Netherlands in September 2003. The trial Judge found that the wife intends to live there permanently with the children. The husband continues to live and work in Australia.
On 10 March 2004, the husband filed an application in the Family Court of Australia in Sydney. In that application he sought final orders with respect to property and also final and interim parenting orders, the broad effect of which was that the children would reside with the wife and there would be holiday contact with the husband.
In April 2004, the wife filed an “Application for Preliminary Relief” against the husband in the Amsterdam District Court seeking orders in respect of custody of the children, child support and spousal maintenance.
In May 2004, the wife filed a “Petition for Divorce” in the Amsterdam District Court seeking a divorce, spousal and child maintenance and a declaration in respect of community property.
We understand that there is no dispute that on 11 May 2005, the wife entered an appearance to the proceedings instituted by the husband in the Family Court of Australia (although no such document appears to be before us).
On 20 May 2004 the wife filed a response to the husband’s application (filed 10 March 2004). It is important to note that in her response the wife sought an order that the husband’s application filed on 10 March 2004 seeking parenting orders be permanently stayed. But significantly, however, she sought her own orders with respect to property settlement (that is, orders different from those sought by the husband).
On 21 June 2004 the husband filed a further application in the Family Court seeking (among other things) that the wife be restrained by injunction from prosecuting the applications filed by her in the Amsterdam District Court in so far as those applications sought orders in relation to property settlement, spousal maintenance or child maintenance. Again, it is important to note that no restraint was sought in relation to the wife’s applications in the Dutch Court for a divorce or for custody orders.
On or about 20 September 2004 the husband applied to the Child Support Agency in Australia to assess his child support liability. According to the trial Judge, an assessment was notified to the husband on 26 October 2004 and under that assessment he must pay $3,221.75 per month to the wife by way of child support. Neither party has apparently sought any departure from, or other relief from a court in respect of, that assessment.
The wife’s application (filed 20 May 2004) for a stay of the husband’s application for parenting orders, and the husband’s application (filed 21 June 2004) for an injunction to restrain the wife from prosecuting her applications in the Dutch court for property settlement and spousal and child maintenance orders came before Cohen J for hearing on 24 September 2004. The hearing continued on 10 and 29 November 2004.
As we mentioned at the outset, Cohen J delivered judgment and made orders on 10 December 2004 dismissing both the wife’s application for a stay of the husband’s parenting proceedings in Australia and the husband’s application to restrain the wife from prosecuting the spousal and child maintenance proceedings in the Netherlands, but granting the husband’s application to restrain the wife from prosecuting the property settlement proceedings in the Netherlands.
Also, as mentioned earlier, the husband now seeks to appeal his Honour’s refusal to restrain the wife from prosecuting the Dutch proceedings for spousal and child maintenance and the wife appeals (by way of cross-appeal) the grant of the injunction restraining her from prosecuting property settlement proceedings in the Netherlands. No issue arises before us in relation to his Honour’s refusal to stay the husband’s parenting proceedings in Australia.

The reasoning of Cohen J

Before considering either the husband’s application for leave to appeal or the wife’s cross-appeal, it will be useful to make some reference to Cohen J’s reasons for the orders which he made.
Having outlined the facts and made reference to various authorities his Honour continued:
20. The first step in determining the conflicting applications is to decide whether the applications now before me should be decided on the assumption that they relate to individual proceedings on each specific cause which can be dealt with as such or whether any or all the causes are so interwoven or interdependent that the applications directly affecting them should be considered together.
His Honour then continued:
21. In Australia, as a matter of law, property division, spousal maintenance and child support are somewhat interdependent but are capable of being determined separately, as they often are, because they are individual and distinct entitlements. I do not know what the situation is in The Netherlands. There, like here, more than one cause appears to be able to be pleaded in one application but, as in Australia, each individual cause appears from the pleadings to be compartmentalised. It is difficult to believe that parenting proceedings in The Netherlands could not be isolated from the other types of proceedings subject to applications before me. In any event, it would be for the wife to prove that the Dutch proceedings could not be divided into the separate causes of action involved if she is seeking to argue that the balance of the proceedings in The Netherlands could not be properly conducted if she was restrained from conducting a part of them. She has not attempted to suggest this. Her arguments on this type of issue related only to balance of convenience. She asserts that it is a more convenient for all issues to be heard in the one forum; The Netherlands.
His Honour concluded that the proper approach was to deal separately with the applications which related to each cause of action. His reasoning was as follows:
22. I think it is proper to deal with the applications which relate to each cause of action separately. To do otherwise would introduce too much conflict of principal and too many complications in reaching a decision on the individual orders sought. Equally as importantly, it is inevitable that some causes will remain extant in each country whatever decision I reach. If the Court were to grant all the orders the husband seeks and refuse all the wife seeks, or vice versa, proceedings in both jurisdictions would remain because neither party seeks to restrain all the proceedings in one country. I shall deal with parenting, property, spousal maintenance and child support or maintenance individually. There is no issue over the divorce being in The Netherlands.
In relation to the wife’s application to stay the Australian parenting proceedings, his Honour refused that application essentially on the basis that he was not satisfied that the Family Court was “a clearly inappropriate forum”. As we have said, no issue arises before us concerning that determination.
In relation to the husband’s application to restrain the wife from continuing the Dutch proceedings for property settlement, his Honour granted that application for the reasons which he summarized in the following way:
45. … firstly because they tend to interfere with the Australian property suit, secondly because they are seriously and unfairly burdensome and productive of serious and unjustified trouble and harassment and thirdly on the combination of both of the above reasons.
In relation to the husband’s application to restrain the wife from continuing the Dutch proceedings for spousal maintenance, his Honour refused that application for the reasons which he summarized as follows:
47. …Firstly, because the suit does not interfere with the Australian Family Court process, secondly because the claim is not oppressive or vexatious and thirdly on both grounds in combination.
In relation to the husband’s application to restrain the wife from proceeding with her application in the Netherlands for child support and maintenance, his Honour concluded:
55. …that, as there is no impediment or danger to the processes of the Family Court of Australia, there is no basis for granting an anti-suit injunction in relation to the Dutch child maintenance claim of the wife because the court does not have any power to grant such an injunction. There is no basis for concluding that the Court has jurisdiction to grant the relief sought on any other ground.
His Honour therefore refused the husband’s application to restrain the wife from prosecuting her child maintenance claim in the Netherlands.
Thus the result of his Honour’s orders is that the husband’s parenting and property settlement proceedings remain on foot in Australia while the wife is free to pursue her spousal and child maintenance (and presumably also divorce and parenting) proceedings in the Netherlands.

The wife’s cross-appeal against the injunction in relation to the foreign property proceedings

It is convenient to deal first with the wife’s cross-appeal against the injunction restraining her from prosecuting property settlement proceedings in the Netherlands (that is, the anti-suit injunction).
The sole ground relied upon in the wife’s notice of cross-appeal is that the trial Judge erred in making that anti-suit injunction “in that the wife was not amenable to the jurisdiction of the Family Court of Australia.”
We emphasise that this was the sole ground of the wife’s cross-appeal for the reason that certain of the oral submissions of Counsel for the wife in support of the cross-appeal appeared to be directed to matters of substance rather than jurisdiction. But as there was no application to amend the grounds of the cross-appeal, we propose to proceed on the basis that the sole challenge to the injunction restraining the wife from prosecuting the property settlement proceedings in the Netherlands is one of jurisdiction.
In support of that challenge to jurisdiction, Counsel for the wife relied in his written submissions on a number of authorities in relation to the issue of the need for the person against whom an injunction is sought, to be amenable to the jurisdiction (in which the injunction is sought). The final authority referred to in those submissions was the High Court decision of CSR Limited v Cigna Insurance Australia Ltd (1996-1997) 189 CLR 345.
It was submitted by Counsel that in that case “the High Court impliedly accepted the requirement that the defendant against whom an anti-suit injunction is sought must be amenable to the jurisdiction”. In support of that proposition, Counsel relied on the following passage from the joint judgment of Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ (at 400, footnotes omitted, emphasis added):
Moreover, the main protagonists, CSR and Cigna Australia, are Australian companies which carry on business in this country and all the other parties, save perhaps CSR America, are amenable to or have submitted to the jurisdiction of the Supreme Court of New South Wales.
As Counsel for the husband pointed out, in the present case the wife has already submitted to the jurisdiction and indeed is herself seeking orders here in relation to property (which is for the most part in Australia). These considerations are sufficient in our view to dispose of the cross-appeal. (See also the discussions in Spry, The Principles of Equitable Remedies (6^th Ed, 2001) 36-43 and in Nygh, Conflict of Laws in Australia (7^th Ed, 2002) 7.29.)
Accordingly, we propose to dismiss the wife’s cross-appeal against the injunction restraining her from prosecuting property settlement proceedings in the Netherlands.

The husband’s application for leave to appeal the refusal to restrain the wife from prosecuting the Dutch spousal and child maintenance proceedings

In support of the application for leave to appeal and in support of the appeal against the trial Judge’s refusal to restrain the wife from prosecuting spousal and child maintenance proceedings in the Netherlands, Counsel for the husband first submitted that his Honour had erred in principle when he concluded that he should deal with the husband’s application for the injunctions restraining the wife from prosecuting the Dutch proceedings on the basis that each related to a separate cause of action. In support of this submission Counsel relied on the following paragraphs from the joint judgment of Dawson, Gaudron, McHugh and Gummow JJ in Henry & Henry ((1995-1996)185 CLR 571 at 591-592):
If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.
Although the appellant first brought proceedings against the respondent in Monaco for judicial separation and, only later, commenced proceedings for divorce, both proceedings were, in essence, proceedings with respect to their marital relationship. Clearly, it was the same marital relationship which was the subject of the divorce proceedings brought in Australia by the respondent. And although it may not be quite so clear, the property proceedings instituted by the respondent in the Family Court are but an aspect of his controversy with the appellant as to their marital relationship. It may have been otherwise if they were no longer married, but so long as their marriage subsists, their dispute with respect to property is a dispute as to the rights and obligations arising out of their marital relationship and those which should attend its dissolution. As such, it is properly to be seen as part of the controversy with respect to that relationship.

Against the background of these observations by the High Court, Counsel for the husband submitted, correctly in our view, that the trial Judge erred in analysing the husband’s application from a starting point of diversity of issues when it should have been premised on unity (although Counsel was prepared to concede that it cannot be said that different aspects of a matrimonial dispute may never be properly litigated in more than one jurisdiction).
It must of course be recognised, as indeed was recognised by the trial Judge (in paragraph 31 of his judgment), that in Henry the High Court was concerned with an application to stay Australian proceedings rather than with an application to restrain the prosecution of foreign proceedings. However with regard to this distinction, Counsel for the husband relied on the judgment of the High Court majority in Cigna (supra) where the relationship between stay orders of the type which were the subject of the decision in Henry and anti-suit injunctions was discussed and explained.
It will be necessary to quote at some length from the majority judgment in Cigna because of the reliance placed on a number of passages from it by Counsel for the husband. But before doing so, it will be useful to refer to the following passage from the joint judgment in Henry where the principles which should govern the grant of a stay of Australian proceedings because of pending foreign proceedings were explained (at 587, footnotes omitted, emphasis added):
In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, “the discussion by Lord Goff in Spiliada of relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance”. In this regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being “where the case maybe tried ‘suitably for the interests of all the parties and for the ends of justice’”.
The joint judgment in Cigna contained the following discussion of the relationship between such stay orders and anti-suit injunctions (at 389-394, footnotes omitted):
The question whether a dispute as to legal rights should be litigated in the courts of one country or those of another is one that permits of resolution, if resolution is possible, by one court staying its proceedings in favour of the other or by it granting an anti-suit injunction restraining a person amenable to its jurisdiction from commencing or continuing proceedings in that other country. The phrase “anti-suit injunction” is now in common use and, at least in some instances, resembles an injunction granted to protect the legal or equitable rights of the plaintiff or a common injunction to protect the processes of the Chancery Court against interference by the processes of other courts. …
Because stay orders and anti-suit injunctions are the remedies by which actual or potential conflict is resolved, there has been a tendency, at least in the United Kingdom, to view both measures as governed by the same legal principles. That tendency has now been corrected, it having been pointed out by the Privy Council in Société Aerospatiale that the principles are not the same.
Although stay orders and anti-suit injunctions are not governed by the same principles, it will later become apparent that, in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings. And it will also become apparent that, in other cases, the power to grant anti-suit injunctions should not be exercised without the court concerned first considering whether its own proceedings should be stayed.
The test which, in this country, governs a stay of proceedings in favour of proceedings in another country is as stated in Voth v Manildra Flour Mills Pty Ltd.
…
It was pointed out in the joint majority judgment in Voth that …“the traditional power to stay proceedings… on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice…in the particular case”.
It is clear from the rationale for the exercise of the power to stay proceedings and, also, from the words “oppressive”, “vexatious” and “abuse of process”… that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice.
The counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if “an estate is being administered…or a petition in bankruptcy has been presented…or winding up proceedings have been commenced…an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets”. Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v Sentry Corporation, 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.
The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories… . Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or processes.
Quite apart from the inherent power of a court to protect its own processes, a court may, in the exercise of the power deriving from the Chancery Court, make orders in restraint of unconscionable conduct or the unconscientious exercise of legal rights. …
In some cases, the equitable jurisdiction to restrain unconscionable conduct may be exercised in aid of legal rights. …Similarly, an injunction may be granted in aid of a promise not to sue in a foreign jurisdiction constituted…
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, it was said in Carron Iron Co v Maclaren … that “[w]here [there is] ... pending a litigation here, in which complete relief may be had, [and] a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings”.
In Société Aerospatiale, the Privy Council emphasised that the various cases decided in the nineteenth century with respect to vexation and oppression, including Peruvian Guano Co v Bockwoldt, have continuing significance for the grant of anti-suit injunctions. Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression. In particular, Peruvian Guano establishes that “double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]” does not amount to vexation or oppression.
More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Co, if “complete relief” is available in the local proceedings.
Before us Counsel for the husband placed particular reliance on the references in the above-quoted passage to Carron Iron Co v Maclaren and to Bank of Tokyo v Karoon both in support of the submission that the wife in the present case, having sought her own orders for property settlement in her response to the husband’s initiating application for such orders in this country, had (virtually simultaneously, it seems) commenced other proceedings in a foreign jurisdiction in respect of the financial aspects of the breakdown of the matrimonial relationship, and also in support of the submission that the wife would be able to obtain “complete relief” in respect of maintenance as well as property matters in this jurisdiction.
These submissions on behalf of the husband clearly proceeded on the basis that these principles originating in the equitable jurisdiction had application in this Court. We also mention in this context that the respondent wife did not assert before us, nor as we understand it before the trial Judge, that this Court lacked the power to grant an anti-suit injunction in an appropriate case. Although the matter was not argued before us, we would suggest that the source of that power is to be found either under s 34 of the Family Law Act or in the implied (or inherent) power of the Court (which was accepted in Henry as at least authorising the grant of a stay by this Court on forum non conveniens grounds: see Bennett v Bennett (2001) FLC 93-088).
Further, and more generally, Counsel submitted that because of the reference in the joint judgment in Cigna to the power to restrain the prosecution of foreign proceedings which are vexatious or oppressive, the discussion of those concepts in the context of the grant of a stay on the ground of forum non conveniens (as such discussion is to be found in Henry) becomes relevant to the issue of the grant of an anti-suit injunction. Thus Counsel placed reliance on the following passage from the joint judgment in Henry (at 591, footnotes omitted):
It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.
Particular reliance was also placed by Counsel on the reference in the passage just quoted to “the same controversy”, and thus to the passage from the joint judgment in Henry (which we earlier quoted at paragraph 36) where it was explained that applications between spouses for various forms of matrimonial relief – although not precisely overlapping – should be seen as all part of the same controversy arising out of the matrimonial relationship.
Finally, in relation to the assertion that the trial Judge erred in approaching each injunction sought by the husband as a completely separate cause of action, Counsel for the husband relied on the following passage from the joint judgment in Cigna to demonstrate that the same issues of vexation and oppression which form the test for the grant of a stay of local proceedings on the ground of forum non conveniens, will also arise in considering the grant of an anti-suit injunction (at 399, footnotes omitted):
It was held by this Court in Henry v Henry that, where proceedings are pending both in an Australian court and in a court of another country, it is necessary for the Australian court to have regard to the existence of the foreign proceedings in determining whether to stay its own proceedings on forum non conveniens grounds. In reaching that conclusion, the majority pointed out that, although it is not necessarily vexatious or oppressive to bring proceedings in different countries, “the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such ... that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words”.
The situation involved in the present case is not precisely the same as that considered in Henry v Henry. In that case, the parties were identical and the same subject matter, namely, the parties’ marital relationship, was involved in both proceedings. There is not the same correspondence of subject matter in this case. …
As we indicated at the outset of this discussion, we accept for the reasons advanced in the submissions of Counsel for the husband, that the observations contained in the joint judgment in Henry concerning the need to treat issues arising between husband and wife as forming but one single controversy arising out of the matrimonial relationship, have application not only when considering a stay of local proceedings on forum non conveniens grounds, but also when considering the grant of an anti-suit injunction. Nothing put to us by Counsel for the wife dissuades us from this conclusion.
Accordingly, we conclude that it was an error of principle on the part of the trial Judge when, having in paragraph 20 of his judgment specifically addressed the question of whether the applications before him “should be decided on the assumption that they relate to individual proceedings on each specific cause or whether any or all of the causes are so interwoven or interdependent that the application directly affecting them should be considered together”, he then concluded in paragraph 22 that it would be “proper to deal with the applications which relate to each cause of action separately.”
As we have said, we are persuaded, having regard to the submissions of Counsel for the husband directed to the common test of vexation or oppression, that the passage in question from Henry would have application to the grant of an anti-suit injunction in relation to matrimonial proceedings, and thus the unity of matrimonial causes should be the starting point, so to speak, of any consideration of an application for such an injunction in such proceedings.
That having been said, however, it must be borne in mind, and this consideration may well have influenced the trial Judge, that the husband in this case did not seek before the trial Judge to restrain the wife from prosecuting divorce or custody proceedings in the Netherlands. Indeed, before us Counsel for the husband acknowledged that any parenting issues (in the sense of custody or residence and contact) would be determined in the Netherlands.
Accordingly, the error of principle on the part of the trial Judge which we have identified, would remain theoretical only, or in other words have little practical significance, were it not for the existence of the disputes between the parties concerning financial matters, which his Honour effectively permitted to be the subject of determination in different jurisdictions.
Indeed it was also the submission of Counsel for the husband that the error in not approaching the injunctions, which the husband sought, on the basis of a single matrimonial controversy might not have been of great significance, had the trial Judge proceeded to give proper weight to the interrelationship between property and spousal maintenance mandated by s 75(2) and s 79(4) of the Family Law Act. There was, it was submitted, a failure on the part of the trial Judge to give any proper weight to the fact that the outcome of his orders (whereby property orders would be made in Australia and spousal and child maintenance orders in the Netherlands) would be to require both the Australian and the Dutch Courts to investigate and make findings as to the parties’ assets, liabilities, financial resources, income, capacity for employment and their commitments.
Thus, it was submitted, that for the wife to commence in the Netherlands proceedings which would give rise to the same issues, after she had already submitted to the jurisdiction of the Family Court to deal with such issues, and indeed had sought her own orders here, was, in the relevant sense, vexatious and oppressive, since “complete relief” is available to the wife in the local proceedings. We understood Counsel’s submissions in this regard to be directed to the availability in this jurisdiction of both Court orders for spousal maintenance and administrative assessments and/or Court orders in relation to child support.
In both his written and oral submissions Counsel for the husband relied on a number of specific matters to which, it was claimed, his Honour should have had, but did not have, regard when determining whether the wife should be restrained from prosecuting spousal and child maintenance proceedings in the Netherlands, with the result that his discretion could be seen to clearly have miscarried.
Before referring to those specific matters, it is necessary to refer in greater detail to his Honour’s reasoning for refusing to restrain the wife from prosecuting spousal maintenance proceedings in the Netherlands. In relation to the spousal maintenance issue his Honour said:
46.The husband seeks to restrain the wife’s claim for spousal maintenance in The Netherlands. She has not made a claim in the Family Court of Australia. Any order made against the husband in The Netherlands is enforceable by registration in Australia (s.110 Family Law Act 1975 and Sched. 2 to Family Law Regulations 1984). There is no aspect of the wife’s claim which might tend to interfere with any processes in relation to a claim in the Family Court. I regard the latter finding as requiring refusal of the anti-suit injunction against the wife’s Dutch spousal maintenance claim.
47.If the above is insufficient to refuse the injunction the husband seeks, there are other reasons for refusal. There is no oppression or vexation arising from her claim if that is a relevant consideration. There is no reason why she should be required, as the husband seems to suggest, to commence spousal maintenance proceedings in Australia or why it is other than quite appropriate for her to have commenced proceedings in The Netherlands. If the issue is to be decided in Australia it would be effected by the outcome of the property proceedings. I do not know whether the extent of each party’s property is relevant in The Netherlands. Whether it is or not, I cannot think of a reason why the Amsterdam District Court should not decide entitlements of spousal maintenance in accordance with the principles which apply in its jurisdiction. If the extent of property is relevant, it will be able to be proven. I shall refuse the husband’s application in this instance on 3 separate grounds. Firstly, because the suit does not interfere with the Australian Family Court process, secondly because the claim is not oppressive or vexatious and thirdly on both grounds in combination.

It will thus be seen that his Honour concluded that the wife’s claim for maintenance would not interfere “with any processes in relation to a claim in the Family Court” and also that there would be “no oppression or vexation arising from her claim if that be a relevant consideration.” We have, of course, concluded that “oppression or vexation” would indeed be a relevant matter when considering the grant of an anti-suit injunction.
In relation to child support, his Honour, having made reference to the limited access to the Courts available under the Child Support (Assessment) Act 1989, then continued:
53.The wife has few alternatives. One is to seek administrative departure from the current child support assessment and, if she is not satisfied with the result, judicial departure. She does not wish to do this and it is, in my opinion, inappropriate to regard the wife as having any obligation, the non-performance of which might affect the decision I must make, to do other than as she wishes in view of having commenced the Dutch proceedings before the husband initiated the child support assessment. After all, there is a parallel between what was said in Henry v Henry (supra) about subsequent commencement of local proceedings when the same issue is before a foreign Court and the situation here. The only difference is that the issue has been decided locally by an administrative body with an absolute right, ultimately, to have it re-heard by a local court.
54.Another alternative is for the wife to continue to pursue her right to child maintenance in The Netherlands. This is her alternative of choice, an alternative the husband seeks to deny her. It is to be noted that it is said in CSR Limited v Cigna Insurance Australia Ltd (supra) that a court has inherent power to grant an anti-suit injunction to prevent interference with its own process. Here there is nothing before the Court to cause such interference. There are no child support proceedings. The fact that there might be if the wife chooses, despite not wanting to, or is forced to pursue her statutory right to ultimately bring the matter before the Court cannot be a matter to take into account in considering whether the process of the Family Court warrants protection. To do so would be to justify an anti-suit injunction where, if it were not granted, there would be no such justification.
55.The conclusion which must be reached is that, as there is no impediment or danger to the processes of the Family Court of Australia, there is no basis for granting an anti-suit injunction in relation to the Dutch child maintenance claim of the wife because the court does not have any power to grant such an injunction. There is no basis for concluding that the Court has jurisdiction to grant the relief sought on any other ground. I shall refuse the husband’s application to restrain the wife from prosecuting her child maintenance claim in The Netherlands.
If his Honour was here saying that this Court has no power under the child support legislation to grant an anti-suit injunction, it would have to be said with respect that he has overlooked the inherent or implied nature of the power to grant such an injunction and/or s 34 of the Family Law Act (as referred to earlier). Alternatively, if his Honour was saying that an anti-suit injunction could not be granted because there were no proceedings concerning child support pending in Australia, that proposition would also have to apply to the spousal maintenance matters, and it would overlook the fact that the husband in this case relies not on what his Counsel described as the first of the two heads of jurisdiction recognised in Cigna for the grant of an anti-suit injunction (that being the protection of the integrity of the Court’s processes), but rather on the separate head identified in Cigna, being that foreign proceedings are vexatious or oppressive to the applicant for the injunction.
The specific matters to which, it was submitted on behalf of the husband, his Honour should have had regard and which would have led him to the conclusion that the wife’s proceedings in the Netherlands for child and spousal maintenance were vexatious and oppressive were as follows.
The first was the fact that the bifurcation of proceedings would affect the husband disproportionately, as the wife was fluent in Dutch and English, and had legal qualifications in both countries – neither was true of the husband. He would need translations and explanations in relation to the Dutch proceedings; the wife would have no such need in relation to proceedings in Australia.
Secondly, the preparation of evidence as to financial matters for the Dutch court would be likely to be complicated and thus expensive. Not only would independent translations be required, but it is likely that expert evidence as to Australian income tax, trust accounting and partnership accounting would be necessary, as well as an expert explanation of the trusts through which the husband’s legal partnership conducts its affairs. In this context, reliance was placed on the extent of the wife’s claim for maintenance relative to the income actually received by the husband.
The next matters which, it was submitted, should have been considered, were that the treatment of interrelated issues in different jurisdictions may mean that differences of philosophy or approach (which may not even be explicit) would produce unjust outcomes. It would seem that a particular example of this general proposition was the effect of the different tax regimes, with spousal maintenance payments apparently being taxable in the hands of a Dutch recipient (with that not being the case in Australia); this was a matter which could be best taken into account, according to Counsel for the husband, if spousal maintenance was determined along with property settlement in Australia.
The final considerations relied on on behalf of the husband as demonstrating the vexatious and/or oppressive effect of permitting the Dutch spousal and child maintenance proceedings to continue, related to the number of proceedings which may eventuate depending on the order in which Dutch and Australian proceedings were concluded, and also to issues of enforcement and to the rights to apply for a variation of the foreign order which the husband would have in this country.
In this regard, it was submitted on behalf of the husband that, on the assumption that the Dutch maintenance applications were to be decided before the Australian property proceedings for property settlement, the likely outcome would be a further maintenance hearing in the Netherlands to take account of the property outcome – particularly since Australian law may result in a more generous property settlement for the wife than under Dutch law. The result would be to convert what could be a one step process in Australia into a three step process in two countries.
In a related vein, the husband also relied on the fact that he would have rights of application in this country before any spousal or child maintenance order made in the Netherlands could be enforced against him here.
It is unnecessary for present purposes to explain in any detail the arrangements which exist between Australian and certain foreign countries, including the Netherlands, for the enforcement of foreign spousal and child maintenance orders in this country. It is sufficient to say that, under Part III of the Family Law Regulations 1984 and under the Child Support (Registration and Collection (Overseas-related Maintenance Obligations)) Regulations 2000, overseas spousal and child maintenance orders may be registered and enforced in this country but the payer has rights to be heard before the order is enforced here and also to apply for variations here.
While at first glance these arrangements might be seen as providing the husband with some avenue of relief from Dutch maintenance orders which he considered unduly onerous, it was the submission of Counsel for the husband that these reciprocal arrangements highlighted the vexation and oppression of the Dutch maintenance proceedings in that while additional proceedings in two jurisdictions would be necessary, ultimately the Dutch orders could well be rendered nugatory, with the Australian Court ultimately making the final decision in relation to spousal and child maintenance issues; in the words of Counsel for the husband, the Dutch proceedings would be left “as nothing more than a vexation”. We consider that there is considerable force in that submission.

Conclusion in relation to foreign spousal and child maintenance proceedings

We agree with submissions of Counsel for the husband that the above-mentioned matters were matters to which the trial Judge should have had regard in exercising his discretion in relation to the grant of the anti-suit injunctions in respect of the spousal and child maintenance proceedings pending in the Netherlands. It is important to note that these matters were all matters relied on by the husband in his written submissions to the trial Judge. Had his Honour had regard to these matters and had he accepted that the test of oppression and vexation should be applied by him, he would most likely in our view have been satisfied of the oppressive and vexatious nature of the Dutch proceedings for spousal and child maintenance.
Some support for our conclusion in this regard can be gained from what was said in the joint judgment in Henry concerning the considerations which are relevant to a stay of proceedings between husband and wife with respect to their marital relationship – while these observations are of course directed to the grant of a stay of local proceedings, they must also have relevance to the grant of an anti-suit injunction given what we have earlier said concerning the common test of vexation or oppression for both forms of relief (at 592-593, footnotes omitted):
Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, 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.
In light of the passage just quoted from Henry, it was, in our view, necessary for his Honour to have regard to:
·the language disadvantage of the husband and his inability to participate on an equal footing with the wife in the Dutch proceedings;
·the need which the proceedings in the Netherlands would create for an investigation of the parties’ financial affairs in that country when the greater part of the parties’ property and financial resources is to be found in Australia and would have to be examined in this country for the purposes of the property settlement proceedings here; and
·the capacity of the husband under the relevant regulations to have any Dutch maintenance order reviewed in Australia before it could be enforced here.
His Honour’s failure to have regard to the matters just mentioned, together with the perhaps somewhat theoretical error of principle in approaching the applications before him as separate causes of action have, in our view, caused his discretion to miscarry. Accordingly, we propose to grant the husband leave to appeal, and to allow the appeal. It is to be noted that the grounds of appeal (contained in the husband’s draft notice of appeal) include the matters raised by the husband in support of his application for leave to appeal and which we have found to have substance.
We understood both parties would have us re-exercise the discretion in the event that we found his Honour’s discretion to have miscarried.

Re-exercise of the discretion

It has to be said that this case has some extremely unfortunate and unsatisfactory aspects. As we have earlier indicated, both parties are apparently willing to have proceedings arising out of the breakdown of their marriage conducted in the courts of different countries. Notwithstanding that fact, we do not think that it can be said that the husband is not entitled to seek to restrain the wife proceeding with the spousal and child maintenance proceedings particularly in circumstances where the wife is also seeking property settlement orders in Australia as well as in the Netherlands. In other words, the husband is entitled to seek that all financial matters be dealt with in the one jurisdiction, being his home jurisdiction and the jurisdiction in which the parties lived for the greater part of their life together.
It is true that neither party has instituted proceedings in relation to spousal maintenance or child support in an Australian court. This fact must cause us to be extremely cautious in restraining such proceedings in the Netherlands. Nevertheless, regard must also be had to the fact that the wife is seeking property settlement orders here – albeit in response to the husband’s initiating application.
Regard must therefore be had to the fact of the relationship in this country between property settlement orders, spousal maintenance orders and child support obligations. This interrelationship can easily be seen by reference to the provisions of s 79(4) of the Family Law Act which sets out the matters to which regard must be had in making an order under s 79 for property settlement. Included in those matters are “any child support under the Child Support (Assessment) Act 1989 that a party to a marriage has provided, is to provide, or might be liable to provide in the future for a child of the marriage”, as well as the maters in s 75(2) of the Act.
The matters in s 75(2) which are primarily the matters to be taken into account in determining an application for spousal maintenance include:
(n)the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
When regard is had to this interrelationship between proceedings and orders for property settlement, spousal maintenance and child support, we consider that it is vexatious and oppressive to commence and prosecute proceedings for spousal and child maintenance in a foreign court: when both parties are seeking orders for property settlement in this country; when identical issues relating to the parties’ financial positions and the needs of their children will need to be examined in all proceedings in question; and when all financial matters can be determined in this country.
The oppression and vexation of such a situation is confirmed when regard is had to the language differences and differences in the legal systems between Australia and the Netherlands and the wife’s considerable advantages over the husband in relation to these matters. A further matter of significance is the husband’s right to have reviewed (and possibly rendered nugatory) in Australia any Dutch maintenance order before it is enforced in this country.
We recognise that child support in Australia is now at least initially an administrative procedure. But as the trial Judge seems to have acknowledged, there are procedures available to both parties whereby they can seek Court orders departing from the administrative assessment. It is not unusual in this Court for a child support departure application to be heard and determined in conjunction with property settlement proceedings between the parents of the child.
It was not asserted before us on behalf of the wife that she did not have standing under Australian law to obtain relief in the Australian Courts under either the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988. We note only that the written submissions on behalf of the wife to the trial Judge, which were relied on before us, contain the following submission:
The Child Support Agency’s Guide, available on their website, in chapter 1.6 discussing International Child Support (copy attached), says that
“The underpinning principles of Australia’s International [child] maintenance agreement is that, wherever possible, a liability should be issued and administered in the jurisdiction where the payee resides.”
In this case that is clearly the Netherlands. The Child Support Agency itself proposes The Netherlands as the more appropriate forum. That would not necessarily justify a stay of the proceedings but it clearly indicates that The Netherlands cannot be a clearly inappropriate forum when our own administrative authority prefers The Netherlands.
It will be noted that it is not asserted in the above submission that Australia is “a clearly inappropriate forum”, nor as we have already said, is it asserted that the wife has no standing here to obtain a court-ordered departure from the existing administrative assessment obtained by the husband.
Accordingly, we conclude that we should make the order restraining the wife from prosecuting the spousal and child maintenance proceedings in the Netherlands. In so doing, we would also say that were these proceedings on foot in this country in relation to spousal maintenance or child support, there would be no grounds on the material before us to stay those proceedings on the ground that Australia was “a clearly inappropriate forum” (see the passage from Cigna quoted at paragraph 45, above).

Applications by the wife subsequent to the hearing on 10 February 2005

Subsequent to the hearing on 10 February 2005 of the application for leave to appeal/appeal, and of the cross-appeal, the wife has on three occasions sought to put further material before us.
The first occasion was on 14 February 2005 when Counsel for the wife wrote to the Appeals Registrar requesting that the Court’s attention be drawn to the decision of Rose J in JJT and CTT (2004) FLC 93-198 which had just come to Counsel’s attention.
The legal representatives of the husband were given the opportunity to make submissions in relation to that decision. They advised the Registrar that the submission made on behalf of the husband was that the decision would be of no assistance to the Court in the determination of the appeal.

It will be observed that we have not found it necessary to refer to the decision in question in these reasons.
Secondly, and perhaps of greater significance, the wife filed an application on 29 April 2005 in which, relevantly for present purposes, the orders which she sought were that she be granted leave to re-open the hearing of the appeal and on such re-opening to adduce fresh evidence.
The fresh evidence consisted of:
·an affidavit from the wife sworn on 20 April 2005 in which she stated that the husband had filed proceedings for dissolution of marriage in the Federal Magistrates Court on 16 February 2005 and that she had been served with those proceedings and had filed a response seeking dismissal or a stay of them;
·an affidavit from the wife’s solicitor sworn 29 April 2005 also stating that the husband had filed an application for divorce on 16 February 2005 and outlining the progress of that application to a point where it had effectively been stayed by an order made by Le Poer Trench J on 28 April 2005 until the hearing of the wife’s application for a stay or dismissal; and
·an affidavit by a Dutch lawyer sworn on 13 April 2005 concerning the progress of the wife’s proceedings in the Netherlands and the effect on those proceedings of an Australian divorce.
On 3 May 2005, the Full Court was able to hear the wife’s application to re-open.
The wife’s application to re-open was opposed by the husband. However, the husband’s solicitor was prepared to give an undertaking that his client would not prosecute his application for divorce pending the delivery of our judgment in relation to the matters heard on 10 February 2005.
In the event we were only prepared to re-open the hearing of the appeal and cross-appeal for the limited purpose enabling us to be informed that it was an agreed fact that the husband had commenced divorce proceedings in the Federal Magistrates Court on 16 February 2005 and that on 2 May 2005 those proceedings had been transferred to the Family Court. We were also prepared to note the husband’s undertaking given through his solicitors that he would not prosecute his divorce proceedings pending delivery of our judgment reserved on 10 February 2005.
Our reasons for refusing to receive any evidence beyond the agreed fact of the institution by the husband of divorce proceedings and the transfer of those proceedings to the Family Court, was essentially that for us to receive, and take into account in our judgment, evidence of the effect of an Australian divorce on the wife’s proceedings in the Netherlands, would be to pre-empt any decision which will have to be made at first instance in relation to any application by the wife to stay the husband’s application for a divorce.
However, we consider it important to emphasise that at the hearing on 3 May 2005, neither party sought that we should defer delivery of our judgment pending the delivery of any judgment in relation to the husband’s application for divorce and any appeal in relation to any such judgment.
The fact that the husband has now instituted proceedings for divorce in Australia does not affect anything which we have said earlier in this judgment.
Finally, on 31 May 2005 Counsel for the wife wrote to the Appeals Registrar advising that at the hearing of the appeal a reference should have been given to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of parenting responsibility to which both Australia and the Netherlands are parties. Counsel enclosed with his letter a copy of the status report and the relevant clauses, namely articles 5 to 14.
The only explanation given by Counsel for this additional reference was that it may assist the Court in its considerations. Again, the husband’s legal representatives have been given the opportunity to respond to this further material, but have declined.
In the absence of a further explanation from Counsel for the wife, we do not understand what relevance the Convention, to which we have been referred, would have to the issues which are the subject of this judgment.

Costs of the proceedings before the Full Court

Although we did receive some oral submissions in relation to the costs of the application for leave to appeal and the cross-appeal at the conclusion of the hearing on 10 February 2005, we think that it would nevertheless be appropriate to afford the parties the opportunity to make brief written submissions in relation to the costs (including the grant of certificates under the Federal Proceedings (Costs) Act 1981) in relation to the successful application for leave to appeal and appeal, and of the application to re-open heard on 3 May 2005. We will make the necessary directions for written submissions in relation to these matters.

Orders

That the application by the husband for leave to appeal be granted.
That the appeal by the husband be allowed.
That Order 4 of the orders made on 10 December 2004 be set aside and in lieu thereof the following order be made:
“That the wife be and is hereby restrained by injunction from taking any further steps in, and from doing any act or thing to further prosecute, the proceeding filed by her in the Amsterdam District Court, Family and Juvenile Law Section, entitled “Application for Preliminary Relief” filed in or about April 2004 and the “Petition for Divorce” filed by or on behalf of the wife in the said Amsterdam District Court, Family and Juvenile Law Section, in or about May 2004, insofar as either of the said applications seek orders in relation to:
(i)spouse maintenance for the wife; and/or
(ii)child maintenance in respect of the children of the marriage of the husband and the wife.”
That the cross-appeal by the wife be dismissed.
(a) That each party be at liberty to file and serve any written submissions in relation to the costs of the application for leave to appeal, the appeal and the cross-appeal, and the application to re-open within 28 days of the date hereof.

(b)That each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.
(c)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

I certify that the 97 preceding paragraphs are a true copy of the reasons for judgment delivered by this Honourable Full Court

Associate