Mittelman & Eilerts

Case [2024] FedCFamC1F 115

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mittelman & Eilerts [2024] FedCFamC1F 115

File number(s): MLC 3982 of 2023
Judgment of: WILLIAMS J
Date of judgment: 5 March 2024
Catchwords: FAMILY LAW – JURISDICTION – Appropriate forum where proceedings are on foot in Country B and Australia – Where there are competing applications for an anti-suit injunction with respect to financial and divorce proceedings – Where the parties were married in Country B – Where the wife’s domicile of choice is Australia – Where both parties concede that Australia is an appropriate forum for the parenting proceedings – Where the Australian court is held not to be a clearly inappropriate forum for financial and divorce proceedings – Application for injunction restraining the husband from proceeding his application in Country B granted
Legislation:

Domicile Act1982 (Cth) s 10

Family Law Act 1975 (Cth) ss 45, 75, 79
Cases cited:

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

Henry v Henry (1996) 185 CLR 571; ]1996] HCA 51

Kent & Kent [2017] FamCAFC 157

Kornfeld & Weinger [2023] FedCFamC1F 817

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

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

Yeo & Huy (No 2) [2012] FamCA 541
Division: Division 1 First Instance
Number of paragraphs: 98
Date of hearing: 9 February 2024
Place: Melbourne
Counsel for the Applicant: Mr Sweeney
Solicitor for the Applicant: Pearsons Lawyers Pty Ltd
Counsel for the Respondent: Mr Fudim
Solicitor for the Respondent: Jerald Gomez & Associates

ORDERS

MLC 3982 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MITTELMAN

Applicant
AND:

MR EILERTS

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

5 MARCH 2024

THE COURT ORDERS THAT:

1.The husband forthwith do all acts and things and sign all documents necessary to withdraw and/or discontinue his application for divorce, financial relief and parenting in the High Court of Country B in City C, Region D, Country B, (Summons No: […]) and pending such withdrawal and/or discontinuance of that application, the husband be restrained by injunction personally, by his servants and/or agents from further prosecuting any such applications.

2.All extant applications be listed for further mention before a judicial registrar on a date to be advised, noting that the case will remain in the docket of the Honourable Justice Williams.

3.All extant applications and responses are otherwise dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes…

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AGLC
Mittelman & Eilerts [2024] FedCFamC1F 115
Case
[2024] FedCFamC1F 115
Decision Date

CaseChat Overview and Summary

The case of MS Mittelman v MR Eilerts involved a dispute between the parties over the jurisdiction of the court to hear their financial and divorce proceedings. The wife, born in Country B and a permanent resident of Australia, sought to have the proceedings heard in Australia, where she has established her domicile of choice. The husband, also a citizen of Country B and a permanent resident of Australia, argued for the proceedings to be heard in Country B, where he currently resides and where a significant portion of the assets are located. The Federal Circuit and Family Court of Australia (Division 1) was required to determine whether it was the appropriate forum to hear the case. The court considered the wife's domicile of choice in Australia, the location of the assets, and the potential for enforcement issues if the proceedings were heard in Country B. The court ultimately determined that Australia was an appropriate forum for the proceedings.

The legal issues before the court included whether Australia was the appropriate jurisdiction to hear the financial and divorce proceedings, and whether it was appropriate to grant an anti-suit injunction against the husband's proceedings in Country B. The court considered the wife's domicile of choice in Australia, the husband's intention to return to Australia, and the location of the assets. The court also considered the potential for enforcement issues if the proceedings were heard in Country B. The court determined that Australia was an appropriate forum for the proceedings and that it was appropriate to grant an anti-suit injunction against the husband's proceedings in Country B.

The court found that both parties had a significant connection to Australia, with the wife having established her domicile of choice in Australia and the husband intending to return to Australia. The court also found that the location of the assets did not necessarily dictate the appropriate jurisdiction, as the wife did not seek relief against any overseas assets and the husband sought orders in relation to both Australian and overseas assets. The court determined that it was clearly desirable for one court to effectively provide for complete resolution of all matters involved in the parties' controversy following the breakdown of their marriage. The court granted an anti-suit injunction against the husband's proceedings in Country B and restrained him from further prosecuting any such applications.

The court made an order that the husband forthwith do all acts and things and sign all documents necessary to withdraw and/or discontinue his application for divorce, financial relief and parenting in the High Court of Country B and pending such withdrawal and/or discontinuance of that application, the husband be restrained by injunction personally, by his servants and/or agents from further prosecuting any such applications. All extant applications be listed for further mention before a judicial registrar on a date to be advised, noting that the case will remain in the docket of the Honourable Justice Williams. All extant applications and responses are otherwise dismissed.

Orders

Orders of the court

MLC 3982 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MITTELMAN

Applicant

AND:

MR EILERTS

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

5 MARCH 2024

THE COURT ORDERS THAT:

1. The husband forthwith do all acts and things and sign all documents necessary to withdraw and/or discontinue his application for divorce, financial relief and parenting in the High Court of Country B in City C, Region D, Country B, (Summons No: […]) and pending such withdrawal and/or discontinuance of that application, the husband be restrained by injunction personally, by his servants and/or agents from further prosecuting any such applications.

2. All extant applications be listed for further mention before a judicial registrar on a date to be advised, noting that the case will remain in the docket of the Honourable Justice Williams.

3. All extant applications and responses are otherwise dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, I have determined that this Court is the appropriate forum to determine the financial and divorce proceedings between the parties.BACKGROUND The wife was born in Country B and is 54 years old. She is a Country B citizen and a permanent resident of Australia. She has been resident in Australia since 2015, and has expressed her intention to continue to reside in Australia. Her domicile of choice is Australia. The husband was born in Country B and is 63 years old. He is a citizen of Country B and a permanent resident of Australia. He currently lives in Country B but has expressed an intention to return to Australia for the purpose of setting up a business in Western Australia.[1][1] Husband’s affidavit filed 25 January 2024, paragraphs 42 and 109. The parties have one child together, X aged fourteen years, who lives in Australia with his mother. The parties commenced cohabitation in Country B in 2009, according to the husband and in early 2010, according to the wife. In 2015 they commenced living in Australia with their son, returned to Country B to marry in early 2018, and separated in October 2022. Since arriving in Australia, the husband deposes to regular travel between Australia and Country B for work and that the parties and child regularly travelled to Country B to visit extended family. In 2016, the parties purchased two properties at 1 and 2 E Street, Town F where they operated a business known as G Business. The same year, they also started a business which was owned by H Pty Ltd, of which the parties were sole directors and shareholders. In late 2022, the husband returned to live in Country B to care for his elderly mother. In 2022, the property at 1 E Street was sold for $2.2 million. The proceeds of sale were paid equally to the parties at settlement, however, according to the husband the proceeds of sale remain to be adjusted. Shortly thereafter, the property at 2 E Street was sold for $1.1 million, with the proceeds of sale remaining in a term deposit controlled by the lawyers who acted on the sale of the property. According to the husband, his assets in Country B consist of the following:(a)An interest in H2 Company – $1,666,666;(b)A building in Region D, Country B – $266,666;(c)Agricultural land in Region K, Country B – $250,000;(d)Investments in the L Investments – $16,667;(e)Motor vehicles – $28,999;(f)Funds in banks – $416,666. The wife asserts the husband has failed to disclose his shareholding interests in the principal company operated by him in Country B, H2 Company, because he recently transferred his interests to his three adult sons of another relationship. According to the husband, the assets in Australia consist of the following:(a)Funds held in a trust account - $1,083,183;(b)Funds in the husband’s bank account (M Bank) - $231,000;(c)Funds in the parties joint CBA accounts - $3,300;(d)Funds in the wife’s bank account - $317,229;(e)Motor vehicles - $2,000;(f)The wife’s superannuation entitlements - $398,053.THE DOCUMENTS RELIED UPON BY THE PARTIES

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the husband has lived in Australia for a considerable period of time and deposes to his intention to return to Australia and establish a business, it is reasonable to infer that he holds some degree of proficiency in English. The provision of an interpreter in the Australian courts is reasonably straightforward.Discussion and conclusion The wife contends that Australia has jurisdiction in relation to divorce and property, however, it is uncertain whether Country B has jurisdiction because of her acquisition of a domicile of choice in Australia. This issue is referred to above. The husband submits Country B has prima facie jurisdiction in relation to divorce and property proceedings between the parties. There is no expert evidence about how the Country B court would deal with the wife’s domicile of choice. Both parties agree that Australia is the appropriate forum for the parenting proceedings. The husband contends that even if parenting matters are dealt with in this jurisdiction, there is no reason why the divorce and property matters should not be bifurcated and conducted in Country B. The wife contends that all proceedings should be conducted in Australia. Both parties agree assets of the parties are located in Country B which includes the husband’s business interests, property and possibly business interests he has disposed of to third parties. They also agree there are assets located in Australia as outlined earlier in these reasons. Because the wife seeks orders only in relation to Australian assets and currently does not make any claim against assets situated in Country B, there are no reciprocity or enforcement issues arising from determination by an Australian court. The husband seeks orders in relation to both Country B and Australian assets in the Country B courts, which if successful, would give rise to enforcement issues in Australia. Counsel for the husband submitted the most important factor to consider in reaching my determination is the connection of both parties with Country B and the location of what he considers to be the majority of assets in that country. He urged me to bifurcate the proceedings so that the Australian court will be seized of parenting proceedings and the property and divorce proceedings will occur in Country B. Counsel for the husband sought to rely on my decision of Kornfeld & Weinger [2023] FedCFamC1F 817 to contend the proceedings could readily be bifurcated. The facts of Kornfeld can be distinguished from this case for many reasons. These include the wife sought relief against assets in the United Kingdom, whereas the wife in this case does not seek relief against any overseas assets, the assets in the United Kingdom included a superannuation pension fund, over which an Australian court would not be able to make any effective orders and the wife foreshadowed the necessity to issue subpoena in the UK to obtain financial information about the husband’s family trust and business interests. Furthermore, if at the conclusion of Australian property proceedings, the wife sought orders to obtain orders referable to a UK pension fund, she would be required to institute a further application to the UK courts to do so. None of those issues arise in this case to warrant bifurcation of the proceedings. It is clearly desirable for one court to effectively provide for complete resolution of all matters involved in the parties’ controversy following the breakdown of their marriage.

Ratio Decidendi

Legal Principle Established

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