Mayer & Beck

Case [2021] FamCA 302

FAMILY COURT OF AUSTRALIA

Mayer & Beck [2021] FamCA 302

File number(s): SYC 6990 of 2020
Judgment of: ALTOBELLI J
Date of judgment: 14 May 2021
Catchwords: FAMILY LAW – JURISDICTION – ANTI-SUIT INJUNCTION – Where the Applicant initiated proceedings in this Court to vary child maintenance orders made in the District Court of Hong Kong – Where the Respondent initiated first-in-time parallel proceedings in Hong Kong – Where the Applicant resides in Country L – Where the Respondent and the child currently reside in Australia – Consideration of reg 36 of the Family Law Regulations in circumstances where Hong Kong is a reciprocal jurisdiction – Consideration of forum non conveniens principles – Anti-suit injunction granted.
Legislation:

Acts Interpretation Act 1901 (Cth) s 13

Family Law Act 1975 (Cth) s 66S

Family Law Regulations 1984 (Cth) regs 36, 38

Family Law Rules 2004 (Cth)
Cases cited:

Howarth & Howarth & Anor (No. 2) [2017] FCCA 1949

Kent & Kent (2017) FLC 93-792; [2017] FamCAFC 157

Lan and Hao (No. 2) (2017) FLC 93-795; [2017] FamCAFC 175

LN v SCCM (High Court of the Hong Kong Special Administrative Region, Court of Appeal, Hon Cheung, Kwan and Lam JJA, 4 June 2013)

Naczek & Dowler [2017] FamCA 105

Obannon & Scarffe (2021) FLC 94-009; [2021] FamCAFC 33

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32

Rogers & Rogers (2010) 44 Fam LR 235; [2010] FamCA 1069

Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460

Teo & Guan (2015) FLC 93-653; [2015] FamCAFC 94

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55

Weir & Weir (1993) FLC 92-338, 849; [1992] FamCA 69
Number of paragraphs: 33
Date of last submission/s: 11 March 2021
Date of hearing: 11 March 2021
Place: Sydney via videoconference
Solicitor for the Applicant: Petkovic & Todd
The Respondent: In person

ORDERS

SYC 6990 of 2020
BETWEEN:

MR MAYER

Applicant
AND:

MS BECK

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

13 MAY 2021

THE COURT ORDERS THAT:

Anti-Suit Injunction

1.NOTING THAT the Court is satisfied that the Family Court of Australia is not a clearly inappropriate forum to resolve the dispute, the Respondent by herself, her agents or employees or servants is restrained, and an injunction hereby issued restraining her from continuing, maintaining and/or furthering the proceedings …/2006 as filed, in so far as those proceedings relate to the Child Maintenance Orders and/or the arrears relating thereto.

Disclosure

2.By way of participating in the Australian proceedings, the Respondent shall comply with the order 5 of the orders dated 1 December 2020 by exchanging all the following financial documents required by rule 4.26 and rule 12.02 of the Family Law Rules within 28 days hereof, including:

(a)a copy of the party’s three (3) most recent taxation returns and assessments.

(b)if relevant, documents about any superannuation interest of the party, including:

(i)the completed superannuation information form for the party’s superannuation interest; and

(ii)if…

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Details
AGLC
Mayer & Beck [2021] FamCA 302
Case
[2021] FamCA 302
Decision Date

CaseChat Overview and Summary

The Applicant, Mr Mayer, sought an anti-suit injunction against the Respondent, Ms Beck, to restrain her from continuing parallel proceedings in the District Court of Hong Kong concerning child maintenance orders for their daughter. The Applicant resided in Country L, while the Respondent and the child resided in Australia. The dispute arose after the Applicant ceased making child maintenance payments due to financial hardship and the Respondent initiated proceedings in Hong Kong to recover arrears.

The Court was required to determine whether to grant an anti-suit injunction, considering the principles of *forum non conveniens* and the application of regulation 36 of the *Family Law Regulations 1984* (Cth) in circumstances where Hong Kong is a reciprocal jurisdiction. The Applicant sought to have the Hong Kong orders discharged or suspended and a new Australian order made.

Altobelli J granted the anti-suit injunction, restraining the Respondent from continuing the Hong Kong proceedings relating to child maintenance orders and arrears. The Court found that Australia was not a clearly inappropriate forum for the dispute. The reasoning involved an assessment of the parties' current residences, the child's schooling in Australia, and the Applicant's financial circumstances. The Court also considered the Applicant's standing to bring proceedings under regulation 36(3)(b) of the *Family Law Regulations*, notwithstanding the title of the regulation, by focusing on the substance of the provision.

The Court ordered that the Respondent be restrained from continuing the Hong Kong proceedings concerning child maintenance and arrears. The Respondent was also ordered to comply with disclosure requirements for the Australian proceedings within 28 days. The Respondent's application for interim orders was dismissed, and the matter was listed for mention. The issue of costs was reserved.

Orders

Orders of the court

SYC 6990 of 2020

BETWEEN:

MR MAYER

Applicant

AND:

MS BECK

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

13 MAY 2021

THE COURT ORDERS THAT:

Anti-Suit Injunction

1. NOTING THAT the Court is satisfied that the Family Court of Australia is not a clearly inappropriate forum to resolve the dispute, the Respondent by herself, her agents or employees or servants is restrained, and an injunction hereby issued restraining her from continuing, maintaining and/or furthering the proceedings …/2006 as filed, in so far as those proceedings relate to the Child Maintenance Orders and/or the arrears relating thereto.

Disclosure

2. By way of participating in the Australian proceedings, the Respondent shall comply with the order 5 of the orders dated 1 December 2020 by exchanging all the following financial documents required by rule 4.26 and rule 12.02 of the Family Law Rules within 28 days hereof, including:

(a) a copy of the party’s three (3) most recent taxation returns and assessments.

(b) if relevant, documents about any superannuation interest of the party, including:

(i) the completed superannuation information form for the party’s superannuation interest; and

(ii) if the party is a member of a self-managed superannuation fund— a copy of the trust deed and the three (3) most recent financial statements for the fund.

(c) for a corporation in relation to which the party has a duty of disclosure under rule 13.04, including Company B and Company C:

(i) a copy of the financial statements for the three (3) most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;

(ii) a copy of the corporation’s most recent annual return that lists the directors and shareholders; and

(iii) if relevant, a copy of the corporation’s constitution.

(d) for a trust in relation to which the party has a duty of disclosure under rule 13.04:

(i) a copy of the financial statements for the three (3) most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and

(ii) a copy of the trust deed.

(e) for a partnership in relation to which the party has a duty of disclosure under rule 13.04:

(i) a copy of the financial statements for the three (3) most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and

(ii) a copy of the partnership agreement.

(f) for a person or entity mentioned above — any business activity statements for the 12 months ending immediately before the first court date.

(g) copies of all relevant statements from any bank (including D Bank), building society (including those for the respondent’s property interests in City E and in Brisbane) or other financial institution for the last three (3) years.

Other

3. The Respondent’s application for interim orders, as filed by way of Response on 11 December 2020, be dismissed.

4. The matter be listed for mention on 6 July 2021 at 9.30am.

Costs

5. The issue of costs be reserved to be determined at final hearing.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

These reasons for judgment explain why the Court has made the interim orders sought by the Applicant father in his Amended Initiating Application filed 26 February 2021 and his subsequent minute of order. The effect of these orders is to restrain the Respondent mother from continuing, maintaining and/or furthering proceedings in the District Court of Hong Kong in relation to child maintenance for their daughter X born in 2003, who is nearly 18 years old. In effect, the Application is for an anti-suit injunction. The final orders he proposed would thus be dealt with in this court.BACKGROUND The Applicant in this case is X’s father. He is 54 years old and was born in Australia. X’s mother is the Respondent. She is 55 years old and was born in Country G. They married in 2001, separated in 2006, and were divorced in Hong Kong in late 2007 (on the Respondent’s case) or early 2008 (on the Applicant’s case). The parties lived in Hong Kong at the time of their cohabitation and the birth of X. In 2005, the father accepted a three year deployment with the company that he worked with to City H, Country J, and the entire family relocated there. After separation, the Applicant returned to employment with his employer in Hong Kong, but the Respondent and X remained in City H. In 2017 the Applicant’s work license was suspended due to medical reasons and subsequently revoked. He returned to live and work in Australia. He also commenced receiving income protection insurance payments of US$3,000 per calendar month. Later, he commenced as a freelancer initially in Australia, and then in Country K. The Applicant relocated with his new family to Country L, commuting to Country K as work required. In January 2020, due to the COVID-19 pandemic, the Applicant no longer derived an income. He could no longer afford to pay child maintenance, and indeed only made payments up until July, and then one payment in September 2020. Meanwhile, in 2018 the Respondent relocated with X from City H to City N in Country G. With the onset of the COVID-19 pandemic, the Respondent then relocated with X to Australia where they both remain. In January 2021, X commenced Year 12 at M School. In 2007, child maintenance orders were made in Hong Kong. These orders provided that the Applicant pay periodic child maintenance for X and her elder sister (who turned 18 in 2015), at the amount of initially US$3,000 per month, then increased to US$3,300 per month in 2008. The orders provided for these payments to continue until each child turns 18 or ceases full time education, whichever is the later. In 2017 the orders were varied by consent in the Hong Kong Court so that the father’s child maintenance for X was reduced to US$3,000 per month inclusive of school fees. The current dispute only concerns child maintenance payments in respect of X, and not her sister. On 19 August 2020 the Respondent commenced proceedings in the Hong Kong Court by way of inter-partes summons, seeking that the Applicant pay US$6,000, being the arrears for child maintenance for July and August 2020. She further sought a penal notice and costs. These inter-partes summons are marked as Exhibit A2. On 2 October 2020 the Applicant commenced the present proceedings in the Family Court of Australia for orders pursuant to reg 36 and reg 38 of the Family Law Regulations 1984 (Cth) (‘the Regulations’). The Applicant amended his Application on 26 February 2021. By that time, both the 2007 and 2017 Hong Kong orders were registered with the Family Court of Australia. In his Amended Application he asks this Court to discharge the orders made in Hong Kong, or otherwise suspend their operation with effect from the date to which the maintenance stands paid, with a further order acknowledging that any order to discharge or suspend would be a provisional one. He proposes a fresh child maintenance order in the sum of AU$300 per week until such time X completes her secondary education.THE HEARING

Evidence

Evidence Before The Court

The Applicant was represented by his solicitor, and the Respondent represented herself. The Court formed the impression that the Respondent was an intelligent and articulate woman who struggled with the legal concepts arising from this case and was understandably emotionally invested in the proceedings. She clearly would have preferred to settle the case in its entirety if possible.THE EVIDENCE BEFORE THE COURT In support of his case, the Applicant relied on the following documents:(a)Affidavit of the husband filed 2 October 2020;(b)Financial Statement filed 2 October 2020; (c)Affidavit of the husband filed 21 December 2020;(d)Amended Initiating Application filed 26 February 2021;(e)Affidavit of the husband filed 26 February 2021; (f)Case Outline document filed 9 March 2021; (g)Proposed minute of order, marked as Exhibit A1; and(h)Inter-partes summons dated 19 August 2020, marked as Exhibit A2. In support of her case, the Respondent relied on the following documents:(a)Response to Initiating Application filed 11 December 2020;(b)Affidavit of the wife filed 11 December 2020;(c)Financial Statement filed 11 December 2020; and(d)Affidavit filed 5 March 2021.JURISDICTION Regulation 36 of the Regulations provides: –36 Party in Australia may apply to vary etc overseas maintenance order, agreement or liability(1) This regulation applies to:(a) an overseas maintenance order or agreement registered in a court before 1 July 2000; and(b) an overseas maintenance entry liability or a registered maintenance liability.(2) Application may be made to a court having jurisdiction under the Act for an order discharging, suspending, reviving or varying an order, agreement or liability to which this regulation applies.(3) An application may be made by:(a) the person for whose benefit the order or agreement was made, or for whose benefit the liability was created; or(b) the person against whom the order was made or the person who is liable to make payments because of the agreement or the liability; or(c) the Secretary, on behalf of a person mentioned in paragraph (a) or (b).(4) The law to be applied to determination of an application is the law in force in Australia under the Act. I note that reg 36 is titled “Party in Australia may apply to vary etc overseas maintenance order, agreement or liability”, but that the Applicant is not presently in Australia. In my view, this discrepancy does not disentitle the Applicant from the benefit of reg 36. Section 13 of the Acts Interpretation Act 1901 (Cth) details the material that is considered to be a part of an Act. Interestingly, while s 13(2)(d) captures “any heading to a Chapter, Part, Division or Subdivision appearing before the first section of the Act”, there is no reference made within the provision to headings of sections within an Act. The Court therefore has regard only to the substance of reg 36 and I am satisfied that in these circumstances, the Applicant has standing to bring his present application under reg 36(3)(b) of the Regulations.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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