FAMILY COURT OF AUSTRALIA
| KENT & KENT | [2017] FamCAFC 157 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – where the primary judge dismissed an application to stay Australian proceedings – where the primary judge granted an anti-suit injunction concerning overseas proceedings – in respect of the stay application – whether the primary judge failed to take into account relevant considerations when deciding if Australia was a clearly inappropriate forum – where the husband’s contentions would have required the primary judge to consider the wrong test – where no error was demonstrated – in respect of the anti-suit injunction – where the injunction was granted primarily on a finding that parallel proceedings would exist overseas and in Australia – where the issues being litigated overseas are not the same as those in Australia – where the overseas proceedings would not be oppressive and vexatious in the Voth sense – application for leave to appeal granted – appeal allowed. FAMILY LAW – APPEAL – RE-EXERCISE – decision of the primary judge re-exercised – the anti‑suit injunction set aside and a more limited injunction made in lieu. |
| Family Law Act 1975 (Cth) ss 117(1), 94AA, 94(2) Family Law Regulations 1984 (Cth) reg 15A |
| CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Gilmore and Gilmore (1993) FLC 92-353 National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Puttick v Tenon Ltd (2008) 238 CLR 265 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 Skinner &Alfonso-Skinner [2010] FamCA 329 Teo & Guan (2015) FLC 93-653 Voth v Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538 Whung v Whung and Ors (2011) 45 Fam LR 269 |
| APPELLANT: | Mr Kent |
| RESPONDENT: | Ms Kent |
| FILE NUMBER: | BRC | 11392 | of | 2016 |
| APPEAL NUMBER: | NA | 5 | of | 2017 |
| DATE DELIVERED: | 10 August 2017 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Strickland & Murphy JJ |
| HEARING DATE: | 18 July 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 January 2017 |
| LOWER COURT MNC: | [2017] FamCA 21 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kirk QC and Mr Hackett |
| SOLICITOR FOR THE APPELLANT: | Hirst & Co Family Solicitors |
| COUNSEL FOR THE RESPONDENT: | Dr Ingleby |
| SOLICITOR FOR THE RESPONDENT: | HopgoodGanim Lawyers |
Orders
The appeal from paragraph 1 of the order made by the Honourable Justice Carew on 20 January 2017 be dismissed.
The appeal from paragraph 2 of the said order be allowed.
Paragraph 2 of the said order be set aside.
It be ordered in lieu that:
The husband is restrained and an injunction hereby issues restraining him from continuing proceedings in Papua New Guinea in so far as those proceedings seek to restrain the wife from pursuing her application for settlement of property in the Family Court of Australia.
Each party bear their own costs of and incidental to the appeal.
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- Kent & Kent [2017] FamCAFC 157
- Case
- [2017] FamCAFC 157
- Decision Date
CaseChat Overview and Summary
The court considered whether the primary judge had erred in his assessment of whether Australia was a clearly inappropriate forum. The court found that no error was demonstrated in the primary judge's consideration of this matter. The court also considered whether the primary judge had correctly applied the test for granting an anti-suit injunction. The court found that the primary judge had primarily granted the injunction on the basis that parallel proceedings would exist overseas and in Australia, and that the issues being litigated overseas were not the same as those in Australia. The court held that the overseas proceedings would not be oppressive and vexatious in the Voth sense. The court granted the husband's application for leave to appeal and allowed the appeal.
The court set aside the anti-suit injunction and made a more limited injunction in its place. The husband was restrained from continuing proceedings in Papua New Guinea in so far as those proceedings sought to restrain the wife from pursuing her application for settlement of property in the Family Court of Australia. Each party was ordered to bear their own costs of and incidental to the appeal. The form of the order is subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
The appeal from paragraph 1 of the order made by the Honourable Justice Carew on 20 January 2017 be dismissed.
2.
The appeal from paragraph 2 of the said order be allowed.
3.
Paragraph 2 of the said order be set aside.
4.
It be ordered in lieu that:
The husband is restrained and an injunction hereby issues restraining him from continuing proceedings in Papua New Guinea in so far as those proceedings seek to restrain the wife from pursuing her application for settlement of property in the Family Court of Australia.
5.
Each party bear their own costs of and incidental to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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