Medapati and Revanka (No 2)

[2017] FamCA 319

FAMILY COURT OF AUSTRALIA

MEDAPATI & REVANKA (NO 2) [2017] FamCA 319

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband has commenced proceedings in Country J – Where the wife has commenced proceedings in Australia – Where the husband seeks that the proceedings in this court be stayed – Where the wife seeks an anti-suit injunction to restrain the husband from pursuing proceedings in Country J – Where it is found that this court is not a clearly inappropriate forum – Where the husband’s stay application is dismissed – Where it would be oppressive and vexatious to permit the husband to continue with litigation in Country J – Where the Wife’s application for an anti-suit injunction is granted.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the Husband seeks an extension of time in relation to disclosure obligations – Where an extension of time is granted.

Family Law Act 1975 (Cth)

British South Africa Co v Companhia de Mozambique [1893] AC 602
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Henry v Henry (1996) 185 CLR 571
Kemeny v Kemeny (1998) FLC 92-806
Navarro v Jurado (2010) 44 Fam LR 310
Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Chen & Tan [2012] FamCA 225
Kent & Kent [2017] FamCA 21

APPLICANT: Ms Medapati

RESPONDENT: Mr Revanka

FILE NUMBER: BRC 2961 of 2016

DATE DELIVERED: 17 May 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Balzamo

SOLICITOR FOR THE APPLICANT: Hunter Solicitors

THE RESPONDENT: In Person

Orders

1. That the application by the Respondent Husband for a stay of the proceedings commenced by the Applicant Wife being file no. BRC 2961/2016 is dismissed.

2. The Respondent Husband is restrained and an injunction hereby issues restraining him from commencing or continuing any proceedings arising out of the marital relationship between himself and the Applicant Wife in Country J (in particular proceedings commenced by him in the High Court of City P, Country J, Divorce Petition number …) save as required to discontinue any such proceedings already commenced or as required to seek recognition and/or enforcement of orders made by this Court.

3. The time within which the Respondent Husband is to comply with the obligations imposed upon him by Orders (10) and (11) of the Orders made by Justice Forrest on 21 April 2017 is hereby extended to the close of business of this Court on Friday, 9 June 2017.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Medapati & Revanka has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2961 of 2016

Ms Medapati

Applicant

And

Mr Revanka

Respondent

REASONS FOR JUDGMENT

1. On 18 April 2017, I heard competing interim applications in property adjustment and parenting proceedings between these parties and delivered judgment and pronounced interim orders on 21 April 2017.  Included in that judgment was a dismissal of the Respondent’s application for orders staying the Applicant’s proceedings in this Court on the basis of his arguments that this Court is a “clearly inappropriate forum” for the adjudication of property and parenting orders disputes that exist between the two parties.  Relevantly, I also granted interim injunctive relief for the preservation of property situated in various countries around the world, including Australia, Country J, the United Kingdom and the United States of America.

2. On Friday, 12 May 2017, the applicant filed an Application in a Case that was listed urgently for hearing on Monday afternoon, 15 May 2017. By that application, she seeks an “anti-suit injunction” by which the respondent would be restrained from commencing or continuing with proceedings in the courts of Country J in which he seeks dissolution of the parties’ marriage, parenting orders and property adjustment orders.

3. The applicant (who I shall from here on refer to as “the wife”)  adduced evidence that the respondent (who I shall from here on refer to as “the husband”) had very recently, since my orders were made on 21 April 2017, applied to the Country J High Court for injunctions in similar terms to the ones I had issued on 21 April 2017, as well as for an “anti-suit injunction” restraining the wife from bringing “any action and filing any new suits in any country outside Country J until the Divorce Petition is heard and disposed of” in that Country J Court. The evidence adduced by the wife included a copy of a letter from lawyers representing the husband in Country J informing the wife that the husband’s application was fixed for a hearing on this Thursday, 18 May 2017.

4. The husband was served with the wife’s application for the anti-suit injunction on Friday afternoon, 12 May 2017, and, to his credit, filed a Response and an affidavit of evidence in support of his Response electronically on Saturday, 13 May 2017. He also flew to Australia from Country J and appeared in person at the hearing of the wife’s application on Monday afternoon.  He appeared without legal representation, having withdrawn his instructions from the solicitors who represented him on 18 April.

5. The husband sought an adjournment of the hearing as he wanted to get a copy of the transcript of the proceedings of 18 April 2017 to support an application he made for me to recuse myself on the grounds of actual or apprehended bias. I dismissed his application for an adjournment and I also dismissed his application for me to recuse myself. I gave oral reasons for dismissing those applications at the time.

6. The husband did not argue for an adjournment on any grounds relating to the short notice he had been given of the proceedings. He made no argument that he had not had sufficient time to prepare his case in response.

7. The husband confirmed that he had filed the application in Country J on 4 May 2017, and attributed that action not to my mention of the question of an anti-suit injunction on 18 April, but rather his assertion that the wife’s solicitors here in Australia were in breach of my orders of 21 April.  When I asked him why he did not seek redress in respect of that asserted breach in this Court rather than seeking an anti-suit injunction against the wife in the Country J Courts, he made it clear to me that he simply considered Country J the proper jurisdiction to deal with all of their disputes. Indeed, when I reminded him that the solicitor who had represented him before me on 18 April had conceded that Australia was not a “clearly inappropriate forum” for the determination of the controversy between the parties arising out of the breakdown of their marriage, the husband made a very disparaging remark about his solicitor and told the Court that concession was not made on his instructions. 

8. It became quickly apparent that the husband wanted to again press his case for a stay of the wife’s proceedings in this Court on forum non conveniens grounds. No argument was made by counsel for the wife that the husband was estopped from doing that by his former solicitor’s concession and my judgment of 21 April 2017.

9. Having considered the matter again in the light of the principles of law pursuant to which such a dispute is determined, having regard to the very limited evidence before me, particularly in respect of Country J law, I am quite satisfied, in any event, that the husband’s former solicitor’s concession was indeed a meritorious one, even if made without instructions, which, of course, I am unable to say I am actually satisfied of. I am satisfied, however, that Australia is not a clearly inappropriate forum and that the anti-suit injunction now sought by the wife restraining the husband from continuing with his proceedings for divorce, parenting orders and property adjustment orders in Country J should be granted. These are my reasons.

The Principles by which this immediate dispute is to be determined

1. As I said in my judgment of 21 April 2017, there is no doubt that this Court has jurisdiction to entertain the wife’s divorce application (s 39(3) of the Family Law Act 1975 (“the Act”)), her application for property adjustment orders (s 39(1) and (4) of the Act and the definition of “matrimonial cause” in s 4 of the Act) and her application for parenting orders (s 69C(2) and s 69E of the Act). The wife is ordinarily resident in Australia, as is the child, and they were both present in Australia on the day her divorce application was filed in the Federal Circuit Court (4 April 2016), the day her application for property adjustment orders was filed in that same Court (13 July 2016, not 5 September 2016 as contended by the husband) and the day her application for parenting orders was filed in that same Court (30 August 2016, not 5 September 2016 as contended by the husband).

2. It is well accepted that this Court has the power to make orders staying proceedings before it on forum non conveniens grounds and, conversely, to issue anti-suit injunctions restraining a person from prosecuting proceedings in a foreign jurisdiction.[1]

   [1]Voth and Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, Henry v Henry (1996) 185 CLR 571, Kemeny v Kemeny (1998) FLC 92-806, Navarro v Jurado (2010) 44 Fam LR 310.

3. Where a party, such as the husband in this case, has commenced proceedings in a foreign jurisdiction for divorce, property adjustment orders and parenting orders arising out of the breakdown of the parties’ marriage, he may apply to this Court for a stay of the proceedings the wife has brought in this jurisdiction pertaining to the same subject matter. At the same time, of course, the wife may resist that application and ask the Court to grant an anti-suit injunction against the husband.

4. In determining whether the wife’s proceedings should be stayed, the test is whether or not this Court is a ‘clearly inappropriate forum’ and the party seeking the stay bears the onus of establishing that it is.

5. The Court determines the question by determining whether a continuation of the proceedings in this Court would be ‘vexatious’ in the sense discussed in Voth, namely that they would be “seriously and unfairly burdensome, prejudicial or damaging” or, indeed, ‘oppressive’ in the sense also discussed in Voth, namely that they would be “... productive of serious and unjustified trouble and harassment…”. 

6. Kent J observed in Chen & Tan [2012] FamCA 225 at [38]:

   Whether or not Australia is a clearly inappropriate forum depends on an assessment of the following (non-exhaustive) factors (derived from Lord Goff’s factors in Spiliada Maritime Corporation v Cansulex Ltd[2] as approved of in Voth and as added to by Henry at 592-593):

   [2] [1987] AC 460

   i)Factors of convenience and expense, such as the location of witnesses;

   ii)Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing;

   iii)The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;

   iv)Whether the other potential forum will recognise Australian Orders and vice versa and the ease of enforcement in each country;

   v)Which forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy;

   vi)The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;

   vii)The governing law of the dispute;

   viii)The place of residence of the parties;

   ix)The availability of an alternative forum; and

   x)Any legitimate juridical advantage to litigating in either jurisdiction.

My Assessment of the Relevant Factors

1. The husband repeatedly submitted that “judicial convenience” demands that the dispute between the parties be determined in Country J. Despite repeated requests from me, he was unable to articulate what he meant by that in a way that I could comprehend what it was that he actually meant by the submission.  At one point in the hearing, he did assert that all of the relevant documents pertaining to the acquisition of the parties’ property interests around the world were in Country J, but there was no evidence before me at all from which I could make any findings about the location of witnesses. 

2. Given that the parties have property interests in Country J, Australia, the United Kingdom and in the United States of America, and, the wife asserts, in Country M, there are potentially as many witnesses outside of Country J as there are outside Australia in this case.  The use of technology such as telephone, Skype and video conferencing offers potential solutions to any difficulties presented in this respect in any event. That same technology allows for the digitalisation and easy communication of documents across international boundaries.

3. The wife lives in Australia and has done for over six years. She has a young adult daughter living here and also a ten your old son. The husband said he lives in Australia too, although he has a partner and a new baby who live in City P, is facing criminal proceedings in Country J that could see him imprisoned there for a term if he is convicted, and is also defending some significant civil proceedings that have been brought against him there in which millions of dollars are claimed against him.

4. The parties’ have a good command of the English language. The wife is currently legally represented in Australia though the husband is not. He is apparently legally represented in Country J though says that his lawyer is acting for him on a pro bono basis as he cannot afford to pay him. The status of the wife’s representation in Country J is not clear to me. I have made a dollar for dollar litigation funding order here that, in my judgment, puts the parties on an equal footing in respect of their capacity to participate in the proceedings in this jurisdiction, although the husband said this order now deprives him of his own legal representation.

5. As the husband pointed out, the parties are Country J citizens, they were married in Country J and they lived there as a married couple for many years. The husband worked there in an international firm and they accumulated assets including real property in that country and around the world, including in this country. Nevertheless, the family moved to Australia to live in 2011 and have lived here since, save that the husband appears to have travelled overseas, including back to Country J, on a frequent basis ever since.

6. Whilst I am, of course, aware of the law that determines divorce, parenting orders, and property adjustment orders in this jurisdiction and the issues upon which relief may depend here, I have no evidence at all in respect of the law that determines those matters or the issues upon which relief may depend in Country J. The husband put no evidence before me at all about that. Nor did the wife, but, as I have already observed, the onus is on the husband to persuade me as to the clear inappropriateness of this jurisdiction for the continuation of the proceedings here.

7. There was no evidence adduced by either party as to the question of whether Country J will recognise any Orders made by this Court and enforce them in that country. The husband did concede that to the best of his knowledge and belief any orders of this Court will not be recognised or enforceable in Country J in either property adjustment or parenting. He also asserted that no orders of the Country J Courts will be recognised or enforceable here in Australia. That might very well be correct.

8. The fact that the parties have interests in property in a number of countries around the world does not preclude this Court from exercising jurisdiction in property adjustment proceedings in which all of their interests in that property are considered. Orders in s 79 proceedings are made in personam and not in rem.[3] An order for one party to transfer title to real property situated overseas is an order in personam against that party, as are orders for enforcement against a party. Whilst ever the husband and the wife are in this country, they are amenable to this jurisdiction and subject to any orders made in personam against them.  I do not know what the position is in respect of Country J law.

   [3]See Teo v Guan (2015) FLC 93-653 at 135. For a judicial analysis of the limited application of the Macambique rule in s 79 proceedings also see Chen & Tan [2012] FamCA 225 per Kent J at [16] –[22].

9. As for parenting orders, this Court has jurisdiction to make parenting orders even if one or both of the parents is outside of the country and even if the child is outside of the country at the time the orders are made. Of course, whilst any of the parents are in this country, they are amenable to the Court’s parenting orders jurisdiction and the Court’s orders are enforceable against that parent. Whilst the child remains in this jurisdiction, parenting orders that are made with respect to him will determine his living circumstances. Should he be taken to another country in breach of rights conferred by parenting orders made by this Court, enforceability of this Court’s orders will depend upon the laws of the country within which such enforcement is sought and whether or not that country is party to the international treaties and conventions which Australia is party to, such as the Convention on the Civil Aspects of International Child Abduction (known as the first Hague Convention). Country J is not a party to that Convention.

10. Whilst I am satisfied that this Court can provide for a complete resolution of the matters that are involved in the dispute between the parties I am unable to be so satisfied about the Country J Courts as there is no expert evidence before me about that. I acknowledge that the husband asserts that is the case, but I am unable to say that I am satisfied that is so.

11. For the wife, much was made of the assertion that she was first in time in the commencement of proceedings. The husband disputed the assertion and argued that he was “first to the line” in commencing proceedings.

12. As to that factual dispute, I am satisfied, as I have already set out, that the wife filed her application for divorce in Australia on 4 April 2016, her application for property adjustment orders on 13 July 2016 and her application for parenting orders on 30 August 2016.   The husband asserts that he filed his application for divorce, property adjustment orders (that he calls “asset separation”) and parenting orders (that he calls “custody”) in Country J on 24 August 2016. The wife’s counsel submitted that the husband filed that in Country J on 19 August 2016. I am unable to determine that factual dispute, but, in any event, there can be no dispute that the wife commenced her divorce and property adjustment proceedings in Australia before the husband commenced any of his proceedings in Country J. Furthermore, although the husband commenced his parenting orders proceedings in Country J before the wife commenced her parenting orders proceedings in Australia, the husband had filed in the Federal Circuit Court on 29 August 2016 a Response to the wife’s Initiating Application filed on 13 July 2016 in which he actually sought interim orders for both property adjustment and parenting, apparently submitting to the jurisdiction of this Court and its appropriateness.

1. In any event, the chronology of commencement of proceedings is not, in itself, as decisive a factor as both parties apparently considered it is when making submissions in this matter. It is but one of the factors to consider. The fact that the husband filed his application for an anti-suit injunction in Country J before the wife filed her application for an anti-suit injunction in this Court is also not decisive.

2. The proceedings in this country were transferred from the Federal Circuit Court to this Court last year. Interim parenting orders were made in the FCC before transfer. Extensive interim property orders have already been made in this Court. Disclosure orders and interim litigation costs funding orders have been made already. The wife has incurred tens of thousands of dollars in legal costs already in these proceedings. The evidence is that in Country J the husband’s applications are only going to their first hearing tomorrow, 18 May 2017. I do not know exactly what will happen on that hearing.

3. In these proceedings, of course, Australian law will govern all aspects of the dispute. I do not know what law would govern the dispute if it was to be heard and determined in Country J, though I expect it would be Country J law, about which I have no expert evidence before me at all.

4. I raised the question of juridical advantage with the husband during the hearing, and explained that to him by inviting him to tell me if there was any reason beyond those already espoused by him as to why he preferred to litigate the dispute in Country J as opposed to this country, particularly as he says he lives here and as the child who is the subject of the parenting dispute lives here, currently with the mother.  I specifically asked him if he was aware of, or considered there was any advantage conferred upon him by the law of Country J that would be applied in the Courts of that country, that is not available to him here. He did not offer any answer to this line of questioning apart from repeating the assertion that it was a matter of “judicial convenience”, which, as I have already said, I did not understand. Accordingly, I am unable to find that there is legitimate juridical advantage to the husband litigating the matter in Country J as opposed to Australia.

5. Considering all of these matters and focusing particularly on the question of the inappropriateness of this jurisdiction, I am simply unable to say that I am satisfied that this Court is a “clearly inappropriate forum”. I do not consider that continuation of the proceedings here will be vexatious or oppressive, as discussed already, to the husband. Accordingly, the husband’s application to stay the wife’s proceedings here is dismissed by me.

The Wife’s Anti-suit Injunction

1. This Court, as I have already said, has the power to grant an anti-suit injunction. That power arises either by reason of the Court’s implied power to protect the integrity of its own processes or, arguably, pursuant to s 34 of the Act and pursuant to s 114(3) of the Act. That later provision empowers a court exercising jurisdiction under the Act to grant an injunction in any case in which it appears to the Court to be just or convenient to do so.[4]

   [4]          Teo v Guan (2015) FLC 93-653; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345.

2. In Henry[5] the High Court said that it is prima facie to be seen as vexatious or oppressive within the Voth sense for continuation of litigation about the same controversy in different countries. The husband seeks to proceed with proceedings about the same controversy as is being litigated in this Court in Country J. Given that I have determined that this Court is not a clearly inappropriate forum and am dismissing his stay application, I acknowledge the correctness of the observation of the High Court in Henry in this case. It would be oppressive and vexatious in the Voth sense to permit the husband to continue on with litigation in Country J and to seek to have an anti-suit injunction issued by the Court there against the wife. I will grant the anti-suit injunction sought by the wife.

   [5]          (supra at 591).

3. I note that the wife’s divorce application remains listed to be heard in the Federal Circuit Court in July this year. In my respectful judgment, this decision effectively determines any argument the husband might continue to mount in that Court in support of a stay of that application on forum non conveniens grounds, and, as the husband was informed by me, should he continue to prosecute proceedings in Country J in contravention of any anti-suit injunction issued by this Court, it is most unlikely that the FCC or this Court will hear him any further in these proceedings.

The Disclosure obligations of the Husband

1. My Orders of 21 April 2017 also obliged the husband to file and serve an affidavit of documents and another affidavit in which he deposes to certain things by 19 May 2017 – this Friday.

2. The husband sought an extension of this obligation, in the event that his stay application was unsuccessful. He submitted that his obligation to attend Court in Country J for his criminal proceedings that will take place for over a week from today had made it impossible for him to meet his obligation.

3. The wife opposed his application, simply submitting that he had already had four weeks to comply and should be given no more time.

4. In the circumstances, I will give the husband an extension of time within which to comply with that obligation, until the close of business on Friday, 9 June 2017.

5. I will order as set out at the commencement of these written reasons.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 May 2017.

Associate:

Date:  17 May 2017