McTiernan v Monticelli

[1995] HCATrans 378

`

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S52 of 1995

B e t w e e n -

JOHN CAMPBELL McTIERNAN

Applicant

and

ANNA MARIE MONTICELLI

Respondent

Application for special leave to appeal

DAWSON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 1995, AT 11.05 AM

Copyright in the High Court of Australia

MR M.D. BROUN, QC:   If the Court pleases, I appear for the applicant with my learned friend, DR P.E. NYGH.   (instructed by Andrew Cohen)

MR D.M.J. BENNETT, QC:   If the Court pleases, I appear for the respondent with my learned friend MR G. RICHARDSON.   (instructed by Gillis Delany Brown).  (Mr Richardson did not appear in Court).

DAWSON J:   Mr Broun?

MR BROUN:   Your Honours, currently in Australia there are only two authorities on the question of an anti‑suit injunction which are becoming progressively more common.  One of them is the decision of your Honour Justice Gummow in National Mutual v Sentry and the other is the judgment of the Full Court of the Family Court in this case.  We perceive as the important questions arising in respect of this application is first of all - I have referred to the basis of the jurisdiction but that is my point(a)(i) on the first page but they are not, perhaps, so important.  The important ones we would put forward are the test to be applied in granting an anti‑suit injunction and we have suggested in our submissions there are three possibilities there.

Proceeding first of all on the basis that when we are dealing with a child matter the welfare of the child is the paramount consideration but that and the judgments of the Full Court led back in each case in a direct or indirect way to the second test and that is the question essentially as to whether this Court would adopt the judgment of the Privy Council in Aerospatiale or whether Voth v Manildra would have an impact upon Aerospatiale’s principles.  There is, of course, also the other possibility that the matters argued before this Court in Henry v Henry may have some impact on an anti‑suit injunction.

The matter that very squarely, however, arises if we come to the question of the principles upon which an anti‑suit injunction is granted, the question which very clearly arises is what is the legitimate juridical or legitimate forensic advantage.  Is it, as the Full Court seems to have taken, simply an expectation of a higher award or is the test suggested by the Supreme Court of Canada in Amchen Products which is, I suppose, currently the most recent appellate authority from any Commonwealth final court of appeal on the question of anti‑suit injunctions.  Is that to be applied?

In Amchen, your Honours, their Lordships of the Canadian Supreme Court said that it is not enough that there is an advantage.  It has to be shown to be an advantage which the party seeking to proceed in the foreign jurisdiction could reasonably expect by reason of their association with that jurisdiction.

DAWSON J:   Do you concede the welfare of the child is a relevant circumstance?

MR BROUN:   It is relevant, your Honour.  Yes, we accept the Full Court and we say the Full Court got it right as to the questions of guardianship, custody and access.

DAWSON J:   Yes.

MR BROUN:   Obviously, the welfare of the child is the overwhelming question but the Full Court then thought that the welfare of the child did not dictate any restraint upon the child support issues and gave us, what we would suggest is really, an absurdity of the ‑ ‑ ‑

DAWSON J:   Well, is it?  In one sense, to put it quite boldly, if the award is likely to be more in another jurisdiction it is in the interest of the welfare of the child that that application be brought in that jurisdiction.

MR BROUN:   Your Honour, we would submit, no.  The matter I advanced before the Full ‑ ‑ ‑

DAWSON J:   It may be unattractive but it is not an absurdity.

MR BROUN:   Yes.  Well, your Honour, we would submit that it has two problems about it.  First of all, that, in fact, gives rise to the very question that arises in Amchen, the Canadian decision that arises in all the anti‑suit injunction questions of what is this legitimate advantage that may be availed of but, secondly, where the Full Court has said, we submit rightly, that guardianship, custody, access has to be dealt with in this Court, that this is clearly the right place to deal with it since an Australian child always lived in Australia, then the question is how do you split them up and can it be to the advantage of the child to have questions ‑ ‑ ‑

DAWSON J:   It can be.  He may be awarded more money in a sense.

MR BROUN:   Well, your Honours, that, in our submission, is not the test.  If the question of welfare of child is paramount, an advantage to the wife of more money is not a relevant question.  This Court has actually said so in ZP v PS.

DAWSON J:   I can think.....automatic because it is the parent that is all ‑ ‑ ‑

MR BROUN:   Yes, your Honour, but we are saying in this case and, indeed, our position before the trial judge of the Full Court has been whatever the child needs this father can meet.  So, we are saying to this Court, “Fix any amount on the basis of the child’s needs; it will be met”, and the trial judge in the exercise of his discretion ensured that by requiring my client to deposit in Australia $A72,000  as security for us meeting whatever is the order that is fixed.

If, as we contend and appears to be the case, the Californian court would not proceed on a basis of the child’s needs but would proceed on the basis of simply a percentage of the husband’s income, whatever it is, then we would say there is not an advantage to the child, there is a spill over beyond the child’s needs as an advantage to the mother.

McHUGH J:   It is still an advantage to the child.  If the child is going to get $US20,000 or if $US20,000 is going to be awarded, common sense tells you that the child must benefit from it.

MR BROUN:   Your Honour, may I take issue with that as to whether it really necessarily is to the advantage of the child that their household is rolling in money, it does not necessarily follow.  But the greater problem is how do you separate the issues?  For example, in this case, there is a guardianship issue and there is a considerable problem about what school the child goes to, what extra‑curricular activities the child has.  There is the question of access which necessarily impacts upon child support.  Who pays the fares back and forth to the United States or across the Pacific?  How is the child got there?  Is there an escort; what happens?  Indeed, the whole question of custody is the basis upon which an order for child support is made.

So, if one has an order for custody made in Australia or a variation in the custody order made in Australia, it means we all have to go trooping back to another court in another country to deal with something that is wholly dependent upon that issue.  Child support is not independent of issues of guardianship, custody and access.  They are inter‑dependent issues.

DAWSON J:   Your client does not have to go trooping anywhere, does he?

MR BROUN:   He contends that he does not live in California.  The mother is alleging that he is.  That is an issue which presumably the Californian court would decide if ever needed but the Californian court also, apart from domicile, purports to exercise jurisdiction where an act of intercourse has occurred within the State from which it is possible that the conception arose.  They do not actually have to prove the conception was within the State as long as there was a relevant act of intercourse within the State so that, in effect, the question of whether my client is domiciled in California or not, which is hotly disputed, that issue is not the determinative issue of the Californian jurisdiction.

DAWSON J:   All these complicating issues in this case and these cases tend to be complicated when there is an international aspect to the matter but it was the exercise of a discretion which has given rise to this application.  Where is the point of principle involved?

MR BROUN:   Well, your Honours, may I say this¨ if it was an exercise of discretion, how did the Full Court come to the view that the trial judge had got it wrong?  The trial judge said, “Of course, you stay the lot” and that custody, access, guardianship and maintenance all have to stick together.  If it was an exercise of discretion, there was no basis for the Full Court interfering but the Full Court seems to have said, in effect, there was no basis for the exercise of a jurisdiction to restrain the question of child support and the trial judge had got that wrong by even considering it as a possibility.

DAWSON J:   But the facts in this case are unusual, are they not?  I think they are anyway.

MR BROUN:   Well, your Honours, perhaps I could say the facts as to the basic question of a choice of jurisdiction about custody and access and child support questions are unfortunately getting more and more common and the first ten years in my practice at the Bar I had one of them.  I now seem to get four or five a year.  They are constantly recurring problems.

GUMMOW J:   At an international level with split jurisdictional problems?

MR BROUN:   With jurisdictional problems of this kind.  They have become very common because, of course, it is so easy to hop on a plane.  There are so many tourists around the world.  People who marry in the course of trips overseas are very common.

DAWSON J:   True, but how, if this Court were to take this matter on appeal, would it advance the law; clarify the law one way or another?

MR BROUN:   Your Honour, first of all it would deal with the very question your Honour has raised:  is the welfare of the child the paramount consideration or is there a residual question, as all of the judges of the Full Court fell back on, as to the principles of an anti‑suit injunction?  Now, an anti‑suit injunction, your Honours, is also a very rapidly growing area.  We have even had a recent case of an anti‑anti‑suit injunction in a commercial matter, not a family law matter so that it is a rapidly growing area of these anti‑suit injunctions.

There is, in effect, in Australia only two authorities by Australian courts dealing with the principles of an anti‑suit injunction and the Supreme Court of Canada in Amchen has adopted, referring to what they perceive is a generally uniform approach in Commonwealth countries, a double-barrelled test of saying first of all you put yourself in the place of the foreign court and you say, “Could that court have come to a conclusion reasonably that they were not a clearly inappropriate forum?”  If the foreign court could not have come to that conclusion, then, on an anti‑suit injunction in the domestic court, one then goes on to the question of the balance of advantages and disadvantages to the parties and it is that where this question of what is a legitimate or, indeed, an illegitimate forensic advantage is considered.

On the basis of Amchen, we would say the fact that a larger award would be made, an award going outside the child’s needs to something beyond the child’s needs, that is something which Amchen very clearly pronounces against and, indeed, we have referred to Lord Denning’s comments in Smith Klein & French v Bloch as a similar statement that the fact that you are going to get more is not a basis for choosing or allowing foreign jurisdiction to go ahead if there is no connection of the parties with that foreign jurisdiction.  Here we have a case where nobody, neither the mother or child or the father, have had any substantial connection with California as a residence at any time in their lives.

The child’s contact, in fact, with California has been getting off a plane there and getting on a plane to Wyoming on a couple of occasions of international access.  So, in effect, your Honours, to say that the welfare of the child governs it, well, that is the first question:  does the welfare of the child govern it?  The second question is what room is then left, having considered the welfare of the child, to come to these anti‑suit injunctions.  If the welfare of the child is to be equally served in either place, or if one looked at a legitimate basis for the exercise of a jurisdiction, is it equally to be served in either place?  Then one comes back to the anti‑suit injunction principles anyway so that the questions of anti‑suit injunction principles arise here.

We say that the Full Court has got it totally wrong.  They have totally misunderstood the notion of a legitimate forensic advantage by disregarding the fact that nobody has any connection with that jurisdiction and we say that the Full Court has also got it wrong in the fractionalising or atomising of the issues between these parties.  Your Honours, looking at it on the question of “What is the basis?”, there is a significant question of law.  If the anti‑suit injunction question arises, then there is a very significant matter for this Court to tell the Australian lawyers as to what the rules are because at the moment we have this as the only appellate authority dealing with it.  Thank you, your Honours.

DAWSON J:   Thank you, Mr Broun.  Yes, Mr Bennett.

MR BENNETT:   If the Court pleases, we submit first of all that no general questions about anti‑suit injunctions arises in this case.  There may have been an interesting question of law which was considered below as to the extent to which the provisions of the Family Law Act about welfare of the child apply to anti‑suit injunctions but all the judges in the Full Court held that whether or not you applied that test, you got to the same result.  So, the case would not be a convenient vehicle for looking at that question.  It is just not a question which arises.

DAWSON J:   Thank you, Mr Bennett.  Mr Broun?

MR BROUN:   I have nothing further to add.

DAWSON J:   Any appeal in this matter is likely to turn upon its own particular facts and it is not therefore a suitable vehicle for the consideration of any question of principle which may arise.  Special leave is refused.

I take it you are applying for costs?

MR BENNETT:   I ask for costs, your Honour.

MR BROUN:   Your Honours, the Family Court Act applies in the sense that they are governed by it but the parties were not married to each other and it is a matter for your Honours’ discretion, the question of costs.

DAWSON J:   With costs.

AT 11.21 AM THE MATTER WAS CONCLUDED