Naderi & Wakim
[2022] FedCFamC1F 776
Federal Circuit and Family Court of Australia
(DIVISION 1)
Naderi & Wakim [2022] FedCFamC1F 776
File number(s): SYC 7996 of 2021 Judgment of: MCGUIRE J Date of judgment: 14 October 2022 Catchwords: FAMILY LAW – interlocutory interim injunction – protection of the integrity of wife’s parenting and property applications in this Court where the husband has commenced proceedings in ecclesiastical Court in Country B – husband has pending application in this Court to permanently stay wife’s applications and wife has pending anti-suit application – awaiting Single Expert report – injunctions granted Legislation: Family Law Act 1975 (Cth) Cases cited: CSR v Cigna Insurance Australia Ltd [1977] 189 CLR 345
EJ K & TSL [2006] FLC 93-287
Henry & Henry [1996] 185 CLR 571
Pascari & Oxley [2013] FLC 93-536
Voth v Manildra Flour Mills Pty Ltd (Voth) [1990] 171 CLR 538
Division: Division 1 First Instance Number of paragraphs: 66 Date of hearing: 4 October 2022 Place: Sydney Counsel for the Applicant: Mr Cummins S.C. Solicitor for the Applicant: Mills Oakley Counsel for the Respondent: Mr Jones Solicitor for the Respondent: Barkus Doolan Winning ORDERS
SYC 7996 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NADERI
Applicant
AND: MR WAKIM
Respondent
order made by:
MCGUIRE J
DATE OF ORDER:
14 October 2022
THE COURT ORDERS THAT:
until further order
1.The husband Mr Wakim by himself, his servants or agents be restrained from continuing to pursue any parenting or financial (property/patrimony) orders in the J Court or any other court in Country B .
2.That forthwith upon receipt, the solicitors for the parties or either of them file with this Court the Single Expert report of Mr C pursuant to the orders of the Justice Rees made 17 May 2022.
3.That the issue of forum in respect of the husband's application for a Permanent Stay of the wife's applications filed in the Federal Circuit and Family Court of Australia together with the wife's application for a final anti–suit injunction in respect of the husband’s proceedings filed in the J Court be listed for hearing with an estimated hearing time of one day in the Federal Circuit and Family Court of Australia at Sydney at 10.00am on 21 November 2022 before Justice Schonell.
4.Each of the parties make file and serve any further affidavit material on which they intend to rely in respect of their applications not later than seven (7) days prior to the allocated hearing date.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Naderi & Wakim has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J
applications
The application before me is a discrete one by the wife seeking an interim interlocutory anti-suit injunction to restrain the husband from continuing to prosecute applications filed in Country B seeking inter alia parenting and financial orders. The form of the orders sought is:
That pending further order, the Husband be restrained from taking any further action in any Court or Tribunal in [Country B] or elsewhere, other than the Commonwealth of Australia, in relation to issues arising as a result of the breakdown of the marriage of the parties.
The wife has proceedings before this Court in respect of both parenting and financial matters. She seeks the interim order above only as a 'holding' injunctive order pending the imminent release of an Expert Report commissioned by the parties in respect of the nature of the relevant law in Country B.
The husband in his Response to the application in this Court seeks a permanent stay of those applications in this Court. The parties agree that the forum issue in respect of what are effectively competing anti–suit injunction and stay applications cannot be entertained until the expert’s report is received, assimilated, advice given, and instructions taken.
It is anticipated that that the parties would be in a position to argue those more substantive issues in November of this year given that the expert’s report is expected as soon as the next fourteen days.
The husband does not seek to argue his Stay application in any form today but does oppose the wife's application for a short–term holding injunctive order.
background facts
The relevant background facts need to be set out in these reasons so as to give some context to the substantive application, the application before me today, and the opposition to that application.
The wife is 45 years of age. She was born in Country B. The husband is 50 years old and was born in Australia. The husband now lives in Country B whereas the wife lives in Australia.
The parties commenced cohabitation and were married in Country B in 1999.
The parties separated on either 20 December 2019 or 24 February 2020 on their different versions. They were divorced in this Court on the wife's application on 23 March 2022.
There are four children of the marriage namely:
(i)Ms W born in 2001 (age 21 years);
(ii)X born in 2004 (age 17 years);
(iii)Y born in 2006 (aged 16 years); and
(iv)Z born in 2012 (aged 10 years).
All four children currently live in Australia in the care of the wife. Obviously Ms W is now an adult as will X become this year.
The husband asserts that the parties and the children habitually resided in Country B during the marriage except for visits to Australia and one longer period here due to a medical procedure for Y. The wife asserts more broadly that the parties and the children lived between Country B and Australia.
The husband's affidavit alleges that the wife and the three younger children (Ms W was already in Australia) left Country B for Australia on or about 28 November 2020 and did so without his consent. The wife's affidavit is silent in respect of this issue and generally as to she and the children leaving Country B. It is clear, however, that the wife and the children have resided in Australia since at least November 2020. They are Australian citizens.
On 1 November 2021 the wife filed an Initiating Application in this Court seeking financial orders only. An Amended Application was filed 7 March 2022 joining parenting issues.
The husband deposes to commencing proceedings in the D Court in City K, Country B, on 26 October 2021. It seems that the wife has received only unsealed copies of documents asserted to have been filed in that Court. In any event, the husband either transferred or filed a new application in the J Court in City F on 25 January 2022. That application is said to raise issues of annulment, parenting, and patrimony (property).
The date of the husband’s commencement of proceedings in Country B becomes relevant to the application before me where there is a suggestion of a policy in that country to dispose of such applications within twelve months of filing
The wife provides a letter from the J Court in City F obtained by her father there on 25 January 2022 where in response to enquiries as to whether any proceedings had been commenced by the husband, the Court responded ‘[…] there is no case in our Court for annulment of marriage’.
The wife's application in this Court came before SJR Tran on an ex parte basis on 24 November 2022 where orders were made inter alia as follows:
(1)that the husband be restrained from selling, transferring or further encumbering a property at [Suburb L] in New South Wales;
(2)that the wife be permitted to register a copy of the Order at the NSW Land Registry Office; and
(3)that the husband be served with the wife's initiating court documents via email.
Service of the wife's documents was effected on 24 November 2022.
On 17 January 2022 the wife says that she was served with unsigned and unsealed process including an affidavit from the husband deposing to have commenced proceedings in the M Court on 26 October 2021.
On 18 January 2022 further orders were made by SJR Tran including for the husband to file his Response by 15 February 2022 and to serve the wife with all documents pertaining to the Country B proceedings by 1 February 2022. An interim order was also made restraining the husband from selling, transferring or further encumbering any legal and equitable interest he may have in properties, including the Suburb L property and properties in Country B.
On 25 January 2022 the wife filed an application for divorce in this Court.
On 8 February 2022 the wife filed an Application in a Proceeding in this Court seeking that the husband be restrained from instituting proceedings in any other Court and, if he had, then that he be restrained from taking any further steps in the prosecution of those proceedings.
On 15 February 2022 the husband filed a Motion in the M Court seeking a declaration that the M Court has competence to the exclusion of any other Court.
On 1 March 2022 the M Court made orders, inter alia, that the M Court has sole jurisdiction to rule on the action of nullity of the marriage between the parties 'as well as all its material effects'.
On 1 March 2022 the M Court deferred the declaration of the separation of the parties patrimony until that Tribunal verified that the parties had not concluded any agreement on that issue.
On 7 March 2022 the wife amended her proceedings in this Court to include parenting matters.
On 8 March 2022 the husband filed his Response in this court seeking interim and final orders to permanently stay the wife's application.
On 8 March 2022 the husband filed a Summons with the M Court seeking orders with respect to the annulment of the parties marriage, sole custody of the children, pleading that the wife has a psychological disorder, and sought a declaration of jurisdiction from the Tribunal. The husband also sought a declaration that each of the parties have their own patrimony because they had not signed an agreement to adopt the confusion of their patrimonies according to their religion.
On 17 March 2022 service of the husband's M Court process was effected by service on the wife's father.
On 4 April 2022 the husband filed a Summons in the Country B proceedings seeking an annulment of the marriage.
The Country B proceedings were listed for first hearing on 5 April 2022. The wife did not attend. The proceedings were adjourned until 12 April 2022 at which time the wife was given two weeks to file a Reply to the husband's summons.
On 7 April 2022 the wife filed an Application to Stay the Country B proceedings.
On 17 May 2022 consent orders were made in this Court by Justice Rees providing inter alia for the parties to appoint a single expert to provide a report in relation to matters relevant to the forum dispute between the parties. The parties were to share the costs of the report equally. Upon receipt of the report the parties had liberty to approach this Court for the matter to be relisted.
On 28 June 2022 orders were made in the Country B proceedings inter alia rejecting the wife's application to declare common patrimony and rejecting her application for a stay of those proceedings.
In July 2022 orders were made for the wife to file material in the M Court such to be filed by 3 October 2022.
On 8 September 2022 the wife filed the application in this Court now before me.
the issue
The issue before me now is a discrete one. That is, the parties are not yet informed by the Single Expert report ordered by Justice Rees in May 2022 but where it is agreed that receipt of that report is imminent. The husband does not consequently now pursue his Stay application but indicates he will do so upon receipt of the single expert report. The wife, however, seeks an injunctive order in the form of a 'holding' order only to such time as the Single Expert report is received and the contents assimilated. Discussions with Counsel suggest that it is reasonable to expect a hearing on the husband's Stay application and the wife's anti–suit injunction application by around the end of November 2022, should judicial resources be available.
THE EVIDENCE
The wife relies on her affidavit sworn 5 September 2022 which effectively repeats the chronology set out above.
The wife also relies on an affidavit of Mr H sworn 5 September 2022. Mr H is a qualified lawyer practising in Country B and represents the wife in proceedings in Country B. He deposes at [18]–[21]:
[18]On 13 July 2022, the Tribunal granted [Ms Naderi] a two–week period to reply to [Mr Wakim] (sic) pleadings, but, I, on behalf [Ms Naderi], had already filed my reply on the same date before being served the decision of the Tribunal.
[19][Mr Wakim] filed his submission in reply on 28 July 2022. I was notified on 28 July 2022 that I had only one week (being until 4 August 2022) to file [Ms Naderi’s] further submissions in reply.
[20][…] 4 August 2022 [was a public holiday in [Country B]]. The Tribunal is not sitting and is currently in summer recess until 3 October 2022. This has caused an extension for [Ms Naderi] to file a reply until this date. I will have to present [Ms Naderi’s] reply to the Tribunal on 3 October 2022.
[21]Once [Ms Naderi’s] reply is filed, the Tribunal will do its investigation and then can list [Mr Wakim's] Summons for final determination in relation to patrimony
(property matters) and parenting expeditiously and before the issue forum is determined by the Federal Circuit and Family Court of Australia. The Tribunal is required to determine [Mr Wakim's] Summons within 12 months of filing, that is by 25 January 2023.And at [26] Mr H deposes:
[26]the Tribunal also does not, usually, search to determine whether another Court including the Federal Circuit and Family Court of Australia, has jurisdiction to determine patrimony and parenting issues between the parties or to consider forum non-conveniens. There is no legal process available for [Ms Naderi], at this stage of proceedings, to challenge the Tribunal’s jurisdiction in [Country B] once they have determined that they can deal with [Mr Wakim's] Summons, which they have.
The husband relies on his affidavit sworn 29 September 2022 where he also sets out his version of the history of the marriage, and history of the proceedings.
The husband also relies on an affidavit of Ms G sworn 30 September 2022. The deponent of that affidavit is a member of the E Bar Association and the Attorney for the husband in the Country B proceedings. That affidavit states:
[6]In addition to the divorce and financial proceedings in [Country B] [Mr Wakim] has applied to the Court to be given custody of his minor children in accordance with the law in [Country B]. […].
[7]the Court has power to make custody (parenting orders) regardless of where the children are located.
[8]any Order made by the Federal Circuit and Family Court of Australia (FCFCOA) in relation to parenting arrangements for [Mr Wakim] and [Ms Naderi’s] children will not be accepted by the Court in [Country B], will not be enforceable (unless made in the Court, will not be enforceable or recognised by government or official departments).
[9]in (sic) is illegal under [Country B] Law […] for either parent from travelling with a minor child without the knowledge and consent of the other parent.
[10]the Court will not accept any Divorce Order made in the FCFCOA as valid and having dissolved the marriage of [Ms Naderi] and [Mr Wakim]. [Mr Wakim] will not be able to remarry in [Country B] without a Divorce order being made by the Court.
[11]the divorce order of the FCFCOA at [Ms Naderi’s] request was presented to the Court on 7 July 2022 - this was neither accepted nor recognised by the Court. The FCFCOA had no legal effect in [Country B] and could not be utilised to alter any public records because it issued from a non–competent civil Court. The only Court capable of declaring the end of the religious marriage of the parties is the spiritual Court, which issues a judgment of annulment of the marriage if the legal conditions are met, and its decision alone is effective and enforceable in the Civil departments and to amend records of marital status.
[12]any order of the FCFCOA in relation to property matters between [Mr Wakim] and [Ms Naderi] is not enforceable in [Country B], will not be recognised and cannot be used to implement the transactions they provide for.
13]the [religious] set of laws applied in [Country B] Courts obliges the Court to decide the case within a period of one year during the preliminary stage of proceedings. This period is not obligatory and the Court may extend it as is necessary. The Court can decide on the case pending before it prior to any decision issued by the FCFCOA.
[14]the proceedings are at the stage of trial and [Ms Naderi] is to file her evidence, should she wish to by 6 October 2022 when the court resumes.
[15][Ms Naderi] has requested the Court retract its decision issued on 28 June 2022 by which it announced the separation of the spouses’ financial liability as it violates the rules of jurisdiction and falls within the jurisdiction of the civil court. The request is subject to determination and a decision is still to issue from the Court due to the summer recess.
…….
[17]article […] of the Catholic Canon Law stipulates that any conjugal claim of a baptised person belongs to the Church in its own right is absolute and comprehensive allowing the Court to declare its jurisdiction alone to decide on a religious marriage and all its material effects. The Court has made a declaration to record its jurisdiction on 1 March 2022 as previously indicated. The wife didn't appeal this decision of the Court.
…….
[19]the Court has yet to deliver a decision in relation to [Ms Naderi’s] appeal of the most recent order of 28 June 2022 of the Court this decision is Imminent. Once the decision issues then dates will be fixed for the parties’ interrogation (examination) by the Court and a Psychologist. [Mr Wakim] and [Ms Naderi] must participate in that examination, or the matter will proceed without their evidence. The examinations of each of the parties will occur in about 1 month approximately from the decision issuing based on my experience.
the wife’s CASE
The wife argues that without an injunctive order, and pending the forum argument upon receipt of the Expert Report, that forum determination could be rendered nugatory with the husband potentially able to prosecute his property and parenting applications in Country B to their conclusions.
Notably, the husband has not offered an undertaking not to prosecute his applications even in the short term pending receipt of the expert's report. His instructions to Counsel to argue against the wife's application for a holding injunction indicates that no undertaking would be forthcoming.
Despite the statement by the husband’s Country B solicitor as to 25 January 2023 being the operative date of 12 months from the filing of his application, the husband continues to assert that he commenced proceedings in Country B on 21 October 2021 thereby raising the possibility (albeit perhaps not likelihood) that those proceedings could be determined forthwith in respect of both parenting and property matters.
Essentially, however, the wife argues that the substantive issue as to forum is reliant fundamentally by receipt of the Single Expert Report ordered by Rees J.
The wife says that this Court has the power to protect the integrity of its own jurisdiction by way of injunctive order.
the husband’s case
The husband's argues, as I understand it, that this Court should not make even the 'holding' injunctive order in respect of the husband's prosecution of the Country B application as to do so would be in effect to impose an anti-suit injunction and where the Court would need to conduct the consideration as to whether the Australian Court is clearly an inappropriate jurisdiction in respect of the financial and parenting applications or either of them together with a consideration of whether the continuation of the Country B proceedings are vexatious and/or oppressive.
consideration
Importantly, this is an application for an interlocutory injunction and is not a trial of the issues on their merits. The full pre-trial process has not been completed and notably where receipt of the single expert report has not yet occurred but is imminent.
Consequently, the application of an interlocutory injunction does not in any way effect finality in respect of the pending applications being that of the husband for a Stay of the Australian proceedings and of the wife's application for anti–suit injunction in respect of the husband’s. In that sense, the remedies ultimately sought by each party are not compromised and in a practical sense can be argued in the short term. Consequently, I take the view that it is no part of the Court’s function at this stage of the litigation to resolve the conflicts evident on the affidavits and certainly not absent the single expert report.
Consequently, it follows that this Court has the power by way of injunctive order pursuant to S114(3) the Family Law Act 1975 (CTH) to protect the integrity of the subject matter of the proceedings. In this case I identify no prejudice to the parties in doing so but where absent an injunctive order then there is evidence to suggest that the husband may prosecute his applications in Country B for both property and parenting orders and where the evidence suggests that the Tribunal in Country B has already assumed the jurisdiction which leads me to accept the submission of Counsel for the wife that failure to grant the injunction may render the ultimate arguments as to Stay and anti-suit injunction nugatory in this Court.
If I am incorrect in the above conclusion then, in any event, I am of the view that it is proper in the short term to make interlocutory 'holding' injunctive orders in the form of anti–suit injunctions in respect of the applications by the husband in the Country B Courts.
In CSR –v- Cigna Insurance Australia Ltd[1] the majority found:
In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub–stratam of fact, the question is not whether the Australian Court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely that they are 'productive of serious and unjustified trouble and harassment) or 'seriously and unfairly burdensome, prejudicial or damaging'
[1] [1997] 189 CLR 345
The husband does not now argue before me that Australia is a clearly inappropriate forum. Prima facie, Australian Courts have the jurisdiction to deal with the parenting issues and matrimonial property. The children are resident in Australia. There is property situate in Australia. The parties and the children are Australian citizens. The wife and the children are domiciled in Australia. It does not, however, necessarily follow that an anti–suit injunction will be granted. That is, it does not necessarily follow that the fact of litigation in different countries means that one or the other is vexatious or oppressive albeit litigation in different countries as to the same controversy may be vexatious and/or oppressive.
Whilst the test in respect of property matters may be that of vexatious or oppressive as set out in Voth –v- Manildra Flour Mills Pty Ltd (Voth)[2], the Full Court in Pascari & Oxley[3] suggested a different principle in respect of parenting applications where the Court stated:
[73]in our view, the importance of the decision, as will be seen from consideration of later cases, is that the focus of the Court should be on the application which it is considering and on the principles governing that application. In particular, where that application is made directly under the provisions of the Act, such as S63 (as then in force), or under the auspices of the welfare power in s67ZC, the exercise of those powers is circumscribed by the best interests of the child as the paramount consideration.
……….
[86]We do not understand anything said by the Full Court in Karim & Khlaid (including at [60]) to be inconsistent with what we have earlier said at [73], being that the principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the Court. Where an application is made under the provisions of the Act which prescribe the best interest test, whether or not the child is within the jurisdiction, then it is that test, and not the test of forum convienes, which will apply.
[2] [1990] 171 CLR 538
[3] [2013] FLC 93-536
Similarly, in EJ K & TSL[4] The Full Court stated:
[83]…..
(iv)in proceedings involving competing fora when the child is in Australia and the Court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti-suit injunction are not the appropriate principles to be applied, and the Court must make such orders as are necessary with the child's best interests as its paramount consideration (s60CA).
[4] [2006] FLC 93-287
Borrowing from the factors for consideration set out in Henry –v- Henry[5], there is no doubt that this Court has jurisdiction to deal with issues arising out of the parties’ marriage including parenting arrangements for the children. The evidence before me suggests that the M Court assumes that jurisdiction.
[5] [1996] 185 CLR 571
The evidence is highly suggestive that neither jurisdiction will recognise the orders of the other in the sense of being enforceable in the other jurisdiction.
Absent the Single Expert Report, I have insufficient evidence as to the nature of parenting proceedings in Country B, as, for example, whether or not the best interests principles apply.
There remains a concern on the husband’s evidence, ambiguous as it is as to when he filed his application in that the Court in Country B may proceed with the application, including for parenting orders, prior to the receipt of the Single Expert Report and determination of the forum issue in this country.
The children and the mother are resident in Australia and there would inevitably be logistical issues in litigating in Country B. In that sense, each forum has certain advantages to one or other of the parties.
Taking all of those matters into account and applying the relevant principles I am satisfied that an interlocutory injunction is necessary to protect the integrity of this Court’s own the proceedings in respect of parenting issues.
I now turn to property applications. Again, the husband does not at this stage argue that the Australian Court is a clearly inappropriate forum albeit I note his intention to prosecute his Stay Application in the short term and when informed by the Single Expert report.
Although the husband's evidence is ambiguous, that of his Country B legal representative suggests that his proceedings in that country were filed second in time which may render them prima facie, vexatious or oppressive. Whilst the issue of forum remains alive in Australia, there is a suggestion on the chronology that the Court in Country B has assumed a sole jurisdiction and progress of the husband's application in that jurisdiction would potentially present a prejudice to the wife pending the determination of forum. Further, and absent the Single Expert report, the references in the Country B proceedings to 'patrimony' and the dismissal of the wife's application for a declaration as to, 'common patrimony' prima facie offers prejudice to the wife and this should, at least, have the benefit of the Single Expert report, whereupon the issue of forum can be an uniformed determination.
If Henry is authority for the proposition that it is prima facie, vexatious or oppressive within the sense of Voth for continuation of litigation about the same controversy in different countries then I am satisfied, particularly given its potential short duration, that I should grant the injunction sought by the wife.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 14 October 2022
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