Kumar & Gupta - [2008] FamCA 885

FAMILY COURT OF AUSTRALIA

KUMAR & GUPTA

[2008] FamCA 885

FAMILY LAW – INJUNCTIONS – Anti-suit Injunction
FAMILY LAW – SPOUSAL MAINTENANCE - Interim

Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538
In the Marriage of Dobson and Van Londen (2005) 33 Fam LR 525
CSR Ltd and Cigna Insurance Australia Ltd (1997) 189 CLR 345
Henry v Henry (1996) 185 CLR 571

APPLICANT:

Ms Kumar

RESPONDENT:

Mr Gupta

FILE NUMBER:

SYC

8612

2007

DATE DELIVERED:

26 September 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Cohen J

HEARING DATE:

12 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Knox

SOLICITOR FOR THE APPLICANT:

Antwan Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Alexander

SOLICITOR FOR THE RESPONDENT:

Barrack Lawyers

IT IS NOTED that publication of this judgment under the pseudonym Kumar & Gupta is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8612 of 2007

MS KUMAR

Applicant

And

MR GUPTA

Respondent

REASONS FOR JUDGMENT

On 23 September 2008 I made orders in the two matters before me in these proceedings. The proceedings were commenced by the wife when she filed her initiating application in the Sydney Registry of the Federal Magistrates Court of Australia on 14 December 2007. The matter was transferred to the Family Court of Australia by order of a Federal Magistrate made on 30 June 2008. The effect of a transfer is that the proceedings continue as though they had commenced in the Family Court. By her initiating application the wife sought a recovery order for the parties’ child, who was born in August 2005, and orders preventing the child from being removed from Australia. At that time she did not know where the child was but must have suspected she was in India with the husband. The child is likely to be in India with the husband.
In the matters currently before me, the wife is attempting to preserve her rights to property and create a situation which will result in the child being returned to her care in Australia despite India not being a party to any arrangement with Australia for the return of children who have been abducted and in particular, not being a signatory to the Convention on the Civil Aspects of International Child Abduction, commonly known as The Hague Convention on Child Abduction.
A most striking aspect of these proceedings, is that the husband, although properly served in about the end of April or the beginning of May 2008 and represented by both solicitor and Counsel at least from 4 July 2008, at all relevant times until the hearing concluded on 12 September 2008 did not attempt to file any personal affidavits which might enlighten the Court about the facts or challenge the wife’s sworn version of them. He filed an affidavit from his solicitor, but it was in an attempt to rely on a technicality irrelevant to these proceedings.
It is significant that the husband has also failed to file an affidavit of financial circumstances. The principal of full and candid disclosure is a basic principal of property proceedings under the Family Law Act 1975. The Family Law Rules 2004 require each party to a financial case to file an affidavit in prescribed form which discloses that party’s finances.
The interim case before me is, inter alia, a financial case because, by her first amended application filed in the Federal Magistrates Court of Australia, the wife has sought orders which restrain all dealings with the known property of the husband and allow for her to resort to some of it for the purpose of obtaining $A100,000.00 so she will be able to live from day to day at a reasonable standard in view of the parties’ known means and previous way of life as well as to fund litigation in the Family Court of Australia and possibly in India, so far as that litigation is necessary and appropriate to bring the child back to Australia to live with the wife and assert her right to a just share of the property held jointly or severally by each party.
By a second amended application relied on after the wife discovered that the husband had commenced proceedings in India and a further oral application, the wife sought an injunction against the husband to restrain him from continuing all the Indian litigation he has brought against her; an injunction which is commonly known as an anti-suit injunction. A Federal Magistrate on 7 and 23 May 2008 made ex-parte orders preventing the husband from using or disposing of his known assets, both liquid and in real estate.
The husband’s lawyers have been aware of the wife’s applications for sufficient time to be able to obtain adequate instructions to defend those applications in all but one instance. That instance has been entirely the husband’s fault. I shall refer to it later. In view of the time constraints imposed on this Court and the wife by the continuation of the Indian proceedings, I am quite satisfied the husband has had proper notice of the wife’s applications and evidence and to the extent that the method by which he has gained that notice does not comply with the rules for service, the wife should be excused from compliance with them. I shall make an order to that effect in addition to the orders I have already made. The facts which lead to the need to excuse compliance will become obvious when I relate the relevant history.
The Court is not in a position to decide where the truth lies during interim proceedings when the facts are in dispute. However, in these proceedings only the wife has filed any affidavit evidence of relevant facts. Although some of these were disputed in cross-examination, because of the nature of the evidence, I find that at a final hearing it is likely that the wife’s assertions of the facts will be accepted as the truth. I shall relate the wife’s assertions and my conclusions of fact based on them.
The husband is a professional who was born in Singapore in July 1956. He came to Australia to live and later, on 26 January 1987, became an Australian citizen. His domicile and place of usual or habitual residence has been Australia since before he became a citizen. The applicant wife was born in India on 6 June 1968. The husband came to India to marry her. The marriage took place in India on 20 June 2004. The wife came to Australia when she obtained a temporary spouse visa. After her arrival she and the husband lived in Australia until 15 November 2007, although there were short periods when one or both parties travelled overseas, including to India. I have no difficulty in finding that ultimately the Court will find that until that date both parties considered Australia to be their permanent home and were domiciled here. The husband said Australia is his permanent home in a document filed in the Indian Court. The wife obtained a permanent spouse visa in May 2007 or a little later and is now an Australian citizen. The child is also an Australian citizen but is also registered as a citizen of India. The husband had never been resident in or a citizen of India up to 15 November 2007.
Contrary to common practice in Australia, the husband did not inform the wife of his financial affairs. What little she knew she learned from occasional remarks or conversations between the husband and others which she overheard.
There was quite a lot of conflict between the husband and the wife over family matters. Each had previously been married and each had a son by the previous marriage. Both sons live in Australia. The wife’s previous marriage ended when her husband died in 1990.
The husband had a professional practice in K, an outer suburb of Sydney, and, as will be seen, has been able to accumulate significant assets. In about mid 2007 he sold his practice and told the wife that he did so because he wished to care for his aged and disabled father who lived with the parties. The wife had been caring for him and continued to do so until mid November 2007. Then, without consulting the wife, the husband purchased air tickets for the family, including his father and the child to travel to India via Singapore on 15 November 2007.
The wife was under the impression the trip was a holiday. Prior to this the husband had, at times, said he wished to leave Australia and live elsewhere such as India or the United States. The wife says he had not told her that this was his intention for this trip. In fact, he told her very little except that she should enjoy the trip. He was in the habit of keeping the wife in the dark about his activities and intentions and she believed what he said from time to time about leaving Australia were not indications of any real intent.
The husband, the wife, the husband’s father and the child travelled to Singapore on 15 November 2007. The next day the husband told the wife he wanted her to go to India while he and the child stayed in Singapore for the next three weeks. The wife refused but felt she may have no option but to do as the husband told her. Later that day the husband, wife and the child went shopping with some of the husband’s relatives. While the wife was in a shop the husband and the child, who had been with her until then, disappeared. He could not be found. She believed he was still shopping somewhere in the city. After waiting for him for five hours, the wife learnt from one of his relatives that the husband had called to say he was on his way to Malaysia with the child. He had not sought or gained any consent from the wife to remove the child from her primary care or to take her anywhere.
The wife had been the child’s principal carer since the child’s birth. The wife immediately telephoned the Australian Federal Police then the Singapore police to report the abduction in an effort to prevent the child being removed from Singapore. The husband had left the wife a one way air ticket to India which she was then given by one of the husband’s relatives. The wife had not realised before then that the husband had purchased one way air tickets for the trip rather than return tickets. The Singapore police eventually informed the wife that the husband had lodged a complaint against her which was to the effect that he had taken the child for safety reasons as the wife had threatened to kill the child as well has him.
While the wife had been waiting for the husband, after having been told he was shopping, the husband had returned to the home of his relatives where the family had been staying and had taken his and the child’s things including her passport. As the wife could not extend her Singapore visa, she returned to Australia. It is clear that the marital separation occurred on or soon after 16 November 2008. The husband could not have intended the wife to join him in India, despite giving her the air ticket. She did not know he was going there or where he intended to live. In any event, when the wife returned to Australia there was an actual separation as she did not intend to resume the marital relationship.
The wife, with the assistance of Australian diplomatic officials and police, then attempted to locate the child and the husband. Eventually she was able to obtain a telephone number to contact the child and has been able to speak to her a few times and has established that a man who is not known to her seems to be caring for the child. There is an order made on 4 June 2008 for the husband’s legal representatives to provide the wife within seven days with written notice of his address, contact telephone number, present occupation, place of work and work contact details. I do not know if this order was complied with but she still does not know where the child is being kept other than that it is in India.
The evidence establishes that ultimately the Court will probably find that the parties, until 16 November 2007, were ordinarily resident in Australia. As a young child in the care of her parents, the child was ordinarily resident in Australia until then. If a person is temporarily or accidentally living away from their country of ordinarily residence and, I think, if they are living outside that country by compulsion, their ordinarily residence stays the same. By analogy with, and because the term “ordinarily residence” has much the same meaning as the term “habitual residence”, as the latter term is used for the purpose of the Hague Convention on International Child Abduction, it is clear that a child who has been taken by one parent to live in another country against the will of the other parent with whom it lived at the time of taking there does not change its ordinary or habitual residence if the parent from whom the child was taken retains his or her ordinary or habitual residence. Accordingly, I find that currently, because the wife did not change her ordinary or habitual residence from Australia when she was in Singapore and has retained her ordinary residence in Australia, the child is still ordinarily or habitually resident in Australia and has been at all material times.
The husband’s counsel, Mr Alexander, did not dispute the fact that the Family Court of Australia has jurisdiction to hear residency proceedings over the child between her parents. That this is clearly the case is the result of section 69E of the Family Law Act 1975 (as amended) which provides that the Court has jurisdiction in relation to a child under the Act if the child, one of its parents or a party to the proceedings is an Australian citizen or is ordinarily resident in Australia. “Ordinary residence”, by the Act, includes “habitual residence”. The Court unquestionably has jurisdiction to hear the parties divorce too.
The wife’s claim for an anti-suit injunction depends on whether she has established a ground in accordance with the applicable test. In these proceedings both parties have submitted that the applicable test is that enunciated in Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538 of “clearly inappropriate forum”. Each cites In the Marriage of Dobson and Van Londen (2005) 33 Fam LR 525 as confirming authority for the application of this test. I do not accept these cases to be authorities for the application of this test. The former is authority for the application of the clearly inappropriate forum test to applications to stay local proceedings when proceedings between the same parties for the same remedies are being conducted overseas.
CSR Ltd and Cigna Insurance Australia Ltd (1997) 189 CLR 345, in my opinion, binds this Court to find that an anti-suit injunction should only be granted against a litigant in a foreign court if the foreign proceedings interfere with or have a tendency to interfere with the proceedings which are pending in the court in which the injunction is sought. The High Court, in addition, stressed that the power to grant an anti-suit injunction should be exercised with caution. I shall apply this test and exercise my discretion with caution. The Court also unambiguously held that stay orders and anti-suit injunctions are not governed by the same principles but that in some cases the power to grant an anti-suit injunction is an aspect of the power of a court which would also allow it to grant a stay and in other areas a court should not exercise the power to grant an anti-suit injunction unless it has first considered granting a stay of its own proceedings. Here, there is no application for any stay of the proceedings commenced in this Court by the wife, so the Court cannot properly consider granting a stay.
On my reading of Dobson and Van Londen, CSR v Cigna, and Henry v Henry (1996) 185 CLR 571 this Court must consider, as a reason why foreign proceedings might interfere with pending local proceedings or have a tendency to do so, whether the continuation of the foreign proceedings are prima facie vexatious and oppressive. In Henry v Henry at 591 the majority in the High Court said:
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.
As it is vexatious and oppressive to commence a second set of proceedings for the same relief as proceedings which have already commenced overseas, it is equally vexatious and oppressive to commence proceedings overseas when similar proceedings have already been commenced in Australia. If it is vexatious and oppressive to the wife for the husband to continue the Indian proceedings, I should grant an anti-suit injunction against the husband.
The wife commenced proceedings in Australia on 14 December 2007. The husband did not commence proceedings in India until 4 March 2008. The Indian proceedings were for guardianship of the child and for a separation order and an order for dissolution of marriage. On 31 July 2008 the husband filed further proceedings in India. These are for a permanent injunction to restrain the wife from proceeding with a petition for divorce in Australia and for orders settling all matrimonial and property disputes. The proceedings which the husband commenced on 4 March 2008 were not brought to the wife’s notice until 4 June 2008 or a few days later. The proceedings commenced on 31 July 2008 were not served on the wife until about 12 September 2008, the day of the hearing. In both cases this is despite the fact that the husband had engaged his Counsel and his present solicitor in the Australian proceedings at least by 4 June 2008.
The wife’s original application, filed on 14 December 2007, was to place the child on the watch list at places of entry to Australia in aid of her recovery and, if the father and the child were in or returned to Australia, to restrain the child’s removal from Australia. This application was seeking urgent relief on the understanding that the wife would amend her claim to seek custody of the child.
On 11 April 2008, the wife filed an amended application. She is permitted by Court rules and practice to do so. This application epitomised the problem the wife had in continuing the proceedings against the husband. She had been unable to discover where he and the child were, so could not serve her application filed on 13 December 2007. The initial listing date of 19 March 2008 was adjourned to 15 April 2008 to allow the wife to make the appropriate amendments to her initial application. The application which came before the Court on 15 April 2008 sought interim orders that personal service be dispensed with and be substituted by sending notice of the proceedings to members of the husband’s family who live in Sydney, Australia, where the parties had lived, including his son and his brother and in the United States of America. Other interim orders sought were for the child to live with the wife pending further order, for the Australian Federal Police and others in authority to assist the wife to take possession of the child, to restrain the husband from dealing with his property in Australia and to pay the wife $A100,000.00 in the interim to permit her to maintain herself and pay her legal costs. Final orders for the child’s custody in favour of the wife, for spousal maintenance and for property settlement were also claimed.
The Court adjourned the proceedings to 4 June 2008 and made the substituted service orders. Service pursuant to them was effected at about the end of April or the beginning of May. Both the initial application and the amended application and affidavits in support of them were served. On 7 and 12 May 2008 orders were made which restrained the husband from dealing with his property in Australia. His bank was given notice of these orders.

On 4 September 2008, the wife filed a second amended initiating application. That this was to be filed was notified to the husband’s solicitor. He was informed in writing of the precise terms of the proposed application on about 22 July 2008. It is unlikely that the wife was given notice of the Indian proceedings which had been commenced in March 2008 before 4 June 2008. The reason for the amendment was to claim the anti-suit injunctions in relation to these proceedings. It was not until the matter came before me on 12 September that the wife learnt of the proceedings which were commenced in India on 31 July 2008. I permitted her to include a claim for an anti-suit injunction to prevent the husband from continuing to prosecute these claims by oral application.
It is clear from the decision of the Full Court of the Family Court of Australia in Dobson and Van Londen that, for the purposes of conducting litigation relating to matrimonial causes, the Court should take into account the overall effect of the legislation which makes such orders interdependent in determining where they should be heard. The Court said at p 536:
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.
Even more importantly, in my mind, the Full Court also said:
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.
It also seems, from the Indian Court documents which have been served on the wife by the husband, that divorce and what are termed “marital issues” as well as property, are also interdependent in India. Thus, if any anti-suit injunction is granted, it should restrain all matrimonial causes between the parties and all children’s proceedings.
It is likely that if proceedings are to be continued in the two countries in parallel on what are much the same causes, it will create undue difficulties for both parties. In both countries the evidence suggests the proceedings will take about the same time to conclude. The parties’ situations are not without complication. If they continue in both countries, the parties will have difficulties in preparation of the proceedings because they will have to prepare both sets of proceedings and be present in both countries to do so in circumstances where it is likely that all the proceedings in each country will not be heard at the one time. The determination of each issue will effect the outcome of other determinations. The imposition of two concurrently conducted sets of litigation is not only prima facie vexatious and oppressive, it is actually so for practical reasons. Ultimately, there is also a very real prospect that there will be conflicting orders in each jurisdiction. Such a situation is vexatious and oppressive. The Indian proceedings will, I find, tend to or will undermine the integrity of the process which the wife has set in motion in Australia.
That the proceedings were commenced in Australia first is one reason, although in my opinion not the strongest one, to exercise my discretion in favour of restraining the husband from continuing the other proceedings. There are two stronger reasons.
One is that it is probable that the vast majority by value of the family property is in Australia. The husband has cash in bank accounts of approximately $A3M and according to the wife, considerable land including the former matrimonial home. It would be very conservative to conclude that the total net assets in Australia which are available for distribution on any property settlement would be more than double that amount. This is likely to be found to be the case. By comparison, the evidence suggests that, at most, the assets in India are probably worth less than $A50,000.00.
There is an even more compelling reason for exercising my discretion to cause the proceedings to take place in Australia. The parties were ordinarily or permanently residing in Australia, and so was the child, when the husband wrongfully and surreptitiously took the child to India and concealed his and her whereabouts from the wife. Even in the Indian documents, the husband admits to being permanently settled in Australia (see the Application for Guardianship). It is noted that he says otherwise in his later application, but this appears to have been an afterthought. In CSR v Cigna at p392 the Court said the inherent power to grant an anti-suit injunction is to be exercised when the administration of justice demands its exercise. In the light of the husband’s wrongful actions, I regard the situation here to be such a case. The husband should not be permitted to impose upon the wife the unduly burdensome and damaging litigation which is potentially prejudicial to her rights and which will undoubtedly cause her serious inconvenience and unjustified trouble and harassment by his wrongful act of spiriting the child away to India and commencing litigation over her and the parties’ property and marital dispute when the natural place to litigate their matrimonial causes is Australia, where the parties’ connection with India in most respects has been tenuous in the extreme and where there would be little connection if the husband had not sought to go there with the child for what is probably no more than tactical reasons; a course which is likely to give him an unfair tactical advantage over the wife. I shall grant the injunction sought by the wife.
The wife claims she is penniless and must rely on social security payments. The husband asserts that she holds substantial land in India and has some savings. The savings she admits to having are so small they are not significant. They could not meet her legal expense needs, nor maintain her adequately for more than a very short time. She denies being the beneficial owner of the land. Unlike the situation with the husband’s assets where the evidence of the value of his cash and of his ownership of land has not been challenged and the value of the cash has been established by clear evidence, I do not know the real situation with any of the property said to be held by the wife. If she does hold land, there is a great deal of uncertainty about her ability to dispose of it quickly enough for it to be able to serve the purpose of her immediate maintenance in Australia. She is entitled to be able to maintain herself at a level his usual standard of living if the parties’ financial situation permits this. She might have to travel to and remain in India and meet the legal costs there. She is certain to incur legal costs in Australia. These matters must also be considered in deciding her application for the $A100,000.00 payment.
I am quite satisfied that the wife has had a high standard of living by Australian standards from when she commenced living in Australia until separation. After all, the prima facie evidence is that she is the wife of a professional who had a large practice, employed other professionals, had an income after tax of about $A20,000.00 per month and had accumulated exceptionally large cash savings and considerable property.
The wife’s lawyer’s fees in Australia are likely to be very substantial. She has been refused Legal Aid, presumably because of her husband’s assets. She has engaged solicitors, and counsel has been briefed. In order to be able to engage her solicitor and brief counsel she signed a costs agreement, as is usual. Her costs will be $A450.00 per hour for the partner solicitor and $350.00 per hour for a senior solicitor. Her solicitors estimate that her fees will be about $100,000.00 including disbursements. In view of the number of attendances which have already been undertaken to get to such an early stage in the proceedings and the fact that the child is still in India and proceedings may continue in India, I regard this estimate as far too low.
In Australia, women are not traditionally required to be reliant on their husbands for access to family funds. This is the case at law too. Women are entitled to maintain themselves by access to family funds even if they have been housewives who have not earned them. The Court will make spousal maintenance orders if the husband has control of the funds and will not release sufficient funds for the spouse’s proper maintenance once they are separated. Women are not, and should not be, dependent on the State or benevolent relatives if their husbands refuse to maintain them properly in accordance with the family’s means. “Properly” means “as they are accustomed” if the family funds, once they have separated, permit this. Here there is more than adequate in the husband’s cash accounts in banks to maintain the wife properly. In one account, solely held by the husband, there is close to $A800,000.00. The husband recently transferred about $A2.5M from this account into another account which is held jointly with his brother and is claimed to be a superannuation trust account. Prima facie, this could be regarding as having been done for the purpose of putting it out of the wife’s reach. The transaction can, if that is the case, be set aside.
In addition to having a right to maintain herself, the wife has a right to engage lawyers for her cases. She should not, as a matter of justice, be put in a position when she is inhibited in the instructions she can give because she does not have ready access to funds because they are controlled by the husband. He has, without orders of the Court, not hesitated to instruct and presumably meet or plan to meet his own lawyers’ costs without inhibition. Yet the wife’s rights in the case she wishes to bring against him are restricted by lack of control over funds which she is likely to ultimately receive under s.79 of the Family Law Act as a property settlement. An order allowing the wife to maintain herself and instruct her lawyers without undue inhibition should be made in this instance. As the wife seeks less than the sum I regard as reasonable for her to have to maintain herself for a reasonable period in view of the likely length of the litigation and to meet her legal costs, I should order that she be paid the $A100,000.00 she seeks from the husband’s funds. The fact that she may own property which could be used to meet part or all of her needs in this regard is really irrelevant. This property will be available for division between the parties. It scarcely matters, except in relation to convenience and certainty of access which source is used to provide the money she seeks. The overall value of net assets left to division between the parties will be unaffected by choice of one source or another. The cash in Australia is the most immediately accessible source and it should be used to fund the payment I shall order. The orders I made on 23 September 2008 are appropriate for the above reasons. They are:
1.That the husband is hereby restrained from proceeding further with and taking any steps to advance his applications for Separation and Dissolution of Marriage and for Guardianship of the child […] born […] August 2005 filed on 24.3.2008 in the Court of the District Judge, […], India and his application for a permanent injunction filed in the court of […], Civil Judge at […, India], being CS No […].
2.That the husband is hereby restrained from instituting any further proceedings in any overseas jurisdiction which seek orders in relation to the child […] or orders concerned with or relating to the division of the property of the parties.
3.That the husband within 7 days pay to the wife’s solicitors the sum of $100,000.00, such sum to be characterised by the judicial officer at the final hearing of the matter either as interim costs, interim spousal maintenance or interim property settlement.
4.That in the event that the husband, within 7 days of the date of these orders, fails neglects or refuses to do any act or thing or sign any document required by these orders, that a Registrar of the Family Court of Australia at Sydney be appointed to execute such deed or instrument in the name of the husband and to do all acts and things necessary to give validity and operation to the deed or instrument, including a Citibank withdrawal slip to allow the wife to withdraw a sum ordered by this court from the husbands funds in Citibank.
5.That a copy of these orders be served on Citibank by the wife’s solicitors within 7 days.
6.That my reasons for judgment are reserved to a date to be fixed.
7.That costs of this application are reserved.
In addition, I shall make the order referred to in paragraph 3. It is:
8.In the event that service on the husband by the wife does not comply with the Rules of Court for Service the wife is hereby excused from such compliance.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:

Date: 26 September 2008