Nordberg & Nordberg

[2023] FedCFamC1F 1019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Nordberg & Nordberg [2023] FedCFamC1F 1019

File number(s):

NCC 1234 of 2023

Judgment of:

SMITH J

Date of judgment:

29 November 2023

Catchwords:

 FAMILY LAW – PROPERTY – anti-suit injunction – divorce and property proceedings commenced by wife in Family Court of Country B in mid-2020 – parties both resident in Country B at time - while both parties still in Country B husband commenced divorce proceedings in Australia - Family Court of Country B dismissed husband’s stay application – husband consented to discontinuance of Australian divorce proceedings – parties return to Australia - final hearing in Country B listed for 30 November 2023 (tomorrow) – no property proceedings on foot in Australia - husband accepts Country B appropriate jurisdiction for matrimonial property - husband seeks stay of spousal maintenance and child maintenance aspects of Country B proceedings only – both parties self-represented litigants in Australia.  Held:  Husband’s application dismissed.  Wife’s ancillary reply orders stood over.  

Legislation:

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth) s 4.

Child Support (Registration and Collection) Regulations 2018 (Cth) r 10; Sch 2.  

Cases cited:

CSRLimited v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33

D & L (2005) FLC 93-225; [2005] FamCA 479

Henry & Henry (1996) 185 CLR 571; [1996] HCA 51

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

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

Division:

Division 1 First Instance

Number of paragraphs:

56

Date of hearing:

24 November 2023

Place:

Newcastle by Microsoft Teams

Solicitor for the Applicant:

Litigant in person

Solicitor for the Respondent:

Litigant in person

ORDERS

NCC 1234 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR TIPPING

Applicant

AND:

MS TIPPING

Respondent

ORDER MADE BY:	SMITH J
DATE OF ORDER:	29 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The matter is listed for mention only by Microsoft Teams at 9.30am on 19 January 2024.

2.Dismiss the application for an anti-suit injunction at prayer 2 of the Initiating Application filed 27 April 2023.

3.Dismiss the applications at prayers 3 and 4 of the Initiating Application filed 27 April 2023.

4.Stand over prayers 3 to 5 of the Response to Initiating Application filed 5 July 2023 for further mention.

5.A copy of these Orders and Reasons for Judgment may be given to any legal practitioner acting for a party in the Country B property or divorce proceedings, and to any Judicial Officer or Court employee of the Family Court of Country B.

6.A copy of the Orders and Reasons for Judgment may be given to any person administering the Child Support (Registration and Collection) Act 1988 (Cth) or cognate legislation.

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 the pseudonym Nordberg & Nordberg has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

SMITH J:

1. The present issue for determination is whether the Applicant Mr Nordberg (“the husband”) (born 1969) (aged 54) should be granted an anti-suit injunction restraining the Respondent Ms Nordberg (“the wife”) (1976 ) (aged 47) from maintaining the spousal maintenance and/or child maintenance aspects of the divorce and property proceedings currently on foot between the parties in the Family Court of Country B (“the Country B Family Court”) in Country B. 

2. The final hearing in Country B is, again, listed for tomorrow, 30 November 2023.

3. The husband agrees that the matrimonial property issues between the parties should be heard and determined in the Country B Family Court. 

4. The injunction is directed only to the spousal maintenance and child maintenance aspects of those property proceedings. 

5. A forum non conveniens application made by the husband to the Country B Family Court in relation to the property and divorce proceedings was dismissed.  Competing divorce proceedings commenced by the husband in Australia were then dismissed by consent.  There are not, and have never been, any competing property proceedings between the parties in Australia.

6. For reasons set out below, I dismiss the husband’s application for an anti-suit injunction and dismiss the application for consequential orders requiring the Child Support Registrar to take certain actions. 

7. The issue of whether the orders sought in the wife’s Reply directed to enforcement of the interim Country B orders required this determination and may also depend on the outcome of the final hearing in Country B.  These will be stood over.

   APPLICATIONS AND MATERIAL RELIED UPON

8. The husband moved on his Application for Final Orders filed 27 April 2023.  He seeks an “anti‑suit injunction” restraining the wife from “participating, continuing or commencing proceedings in the Family Justice Courts of [Country B]” … “pertaining to child support and/or maintenance” and for orders around registration of an Australian child support assessment which would, or could, have the effect of retrospectively discharging the current interim Country B child maintenance order.[1]  The husband said in submission that he has notified the Registrar of these proceedings but provided no evidence of that.

   [1] Initiating Application at [2]; Husband’s Affidavit filed 27 June 2023 [1]; Husband’s Affidavit filed 17 October 2023 at [1].

9. The husband read his Affidavits filed 27 June 2023, 17 October 2023 and 22 November 2023 and provided a list of authorities. 

10. The wife moved on her Response filed 5 July 2023.  She seeks a dismissal of the husband’s current application and restraints against the husband filing further proceedings in this Court without leave.  She also seeks positive orders that the current Country B spouse maintenance order be reciprocated by this Court, and that the husband pay outstanding child maintenance and spousal maintenance from the existing interim Country B Court orders.

11. The wife read her affidavit filed 19 September 2023.

12. Neither party sought to cross examine the other.  Each party made oral submissions.  While the parties are in dispute about many factual issues around property, including around compliance with interim orders from the Country B Family Court and the husband’s disclosure, the facts relevant to the issue present before me are not substantially contentious.

    BACKGROUND

13. The parties are Australian citizens.  They married in Australia in 2008 and relocated to Country B in 2009 where they both became permanent residents.  The wife says the husband remains a permanent resident of Country B.  There are two children, Y born 2020 and X born 2011.  The children hold Australian Citizenship.  The husband held senior executive positions in business.  The wife worked as a healthcare professional while also caring for the children. They separated in 2020. 

14. On 19 August 2020, post separation but while the parties and their children were all still resident in Country B, the husband commenced divorce proceedings in Australia (NCC2978/2020). 

15. In mid-2020, the wife commenced proceedings in the Country B Family Court relating to Divorce (“the Country B divorce proceedings”), proceedings relating to Custody, Care, Control and Access to the children (“the Country B parenting proceedings”), and proceedings for division of the matrimonial home, division of matrimonial assets, spousal maintenance and child maintenance (“the Country B property proceedings”).[2]

    [2] The wife’s Affidavit filed 19 September 2023 at [74] – [75].

16. The husband says that the wife had “no legitimate basis” for commencing proceedings in Country B as the parties intended to relocate to Australia and that she was forum shopping.[3] 

    [3] The Husband’s Affidavit filed 27 June 2023 at [22].

17. In late 2020, while still in Country B, the husband served a summons to stay the Country B proceedings.  The father left Country B and returned to Australia the following month. 

18. In early 2021, the Country B Family Court dismissed the husband’s stay application.[4]  On that basis the husband agreed to withdraw and dismiss his Australian Divorce application.  That occurred on 20 April 2021.[5] 

    [4] The Husband’s Affidavit filed 27 June 2023 at [15] and [17].

    [5] The Husband’s Affidavit filed 27 June 2023 at [17] – [18].

19. The wife returned to Australia with their two children in late 2021.[6]  The wife says she returned to Australia with the children because the husband ceased financial support and refused to co‑operate with passport renewals.[7]  She says the husband has failed to comply with the interim child and spousal maintenance orders made in the Country B property proceedings and has, in effect, used financial coercion and control to compel her to return to Australia.  There is presently insufficient evidence to make a finding either way on the issue of financial coercion and control.

    [6] The Husband’s Affidavit 27 June 2023 at [17].

    [7] The Wife’s Affidavit filed 19 September 2023 at [52].

20. The parties agree they have now decided to permanently remain in Australia.  At a contested hearing it was accepted that the jurisdictional issues relating to parenting proceedings were different to those that apply to property proceedings.  On that basis, the parties have agreed to terminate the Country B parenting proceedings and on 23 February 2023 entered into consent orders in parenting proceedings in this Court (NCC4037 of 2021) which I approved and entered.

21. The husband accepts that “the divorce and property related financial items will remain with the [Country B Family Court]… where [Country B] is agreed to be the appropriate jurisdiction for these matters only.”[8]  He also says that “The [Country B] divorce proceedings should continue in regard to the divorce and property settlement and operate separately to this matter”,[9] ie, separately to the spousal maintenance and child maintenance issues.

    [8] The Husband’s Affidavit filed 27 June 2023 at [9].

    [9] The Husband’s Affidavit filed 27 June 2023 at [27].

22. Despite that position the father argues that the Country B Family Court is a “forum non conveniens” in relation to spousal maintenance and child support as both parties and the children reside in Australia.

23. The husband’s argument regarding child support, as I understand it, is that there would “be no utility”[10] in any Judgement of the Country B Family Court regarding child support and that he is subject to a “dual liability” by reason of the Country B orders and an Australian assessment. 

    [10] The Husband’s Affidavit at [28].

24. It is not clear why he says there is “no utility” nor a “dual liability” given that given Country B is a “reciprocating jurisdiction” within subsection 4(1) of Child Support (Registration and Collection) Act 1988 (Cth) by reason of its inclusion in Schedule 2 of the Child Support (Registration and Collection) Regulations 2018 (Cth), see reg 10 of that Regulation, so that Australian law makes provision both for recognition of the Country B orders and avoids imposing a concurrent liability under the Act requiring payment at the same time of both the Country B order and an Australian assessment.

25. The husband’s is premised on an assumption that he is prima facie entitled to be assessed pursuant to the Child Support (Assessment) Act 1989 (Cth) on the basis of an Australian assessment only and without any reference to the Country B interim orders or any final orders. On that basis he moves the Court to make orders effectively requiring the Registrar to not apply his Country B ordered child maintenance liability.[11]

    [11] The Husband’s Affidavit filed 17 October 2023 at [2]; The Husband’s Affidavit filed 22 November 2023 at [7].

26. The wife says that the husband is forum shopping on child support / child maintenance.  She further says that he has mislead the Child Support Agency by omitting his Country B income[12] to reduce his liability to provide for the children.

    [12] The Wife’s Affidavit filed 19 September 2023 at [40].

27. It is not clear on what basis the husband says that the injunction should stay the spousal maintenance aspect of the Country B property proceedings given there are no property proceedings on foot in Australia or other potential liability for spousal maintenance.

    ANTI-SUIT INJUNCTION

28. The Country B property proceedings were commenced in Country B, where the parties and their children had been resident since 2009, while the parties and their children were still resident there, and before the husband returned to Australia. 

29. The issue of forum non conveniens was contested in Country B.  The Country B Family Court declined a stay of its proceedings.  On that basis, the husband consented to the dismissal of his Australian Divorce application.[13] 

    [13] The Husband’s Affidavit filed 27 June 2023 at [18].

30. The parties had, and still have, substantial property in Country B.  In particular, they have their contributions to a pension fund totalling approximately $322,732.74.  That money is amenable to orders of the Country B Family Court.[14]

    [14]  The Wife’s Affidavit filed 19 September 2023 at [13], [64] and Annexure MSN13.

31. The husband has participated in the Country B property proceedings for over three years.  Those proceedings are listed for final hearing tomorrow, 30 November 2023.[15]

    [15] The Wife’s Affidavit filed 19 September 2023 at [51].

32. Subject to this application, there is no reason why all property disputes between the parties should not be finalised at the final hearing this week.

33. On the evidence before me there is no basis for finding that the Country B property proceedings were vexatious or oppressive when commenced.  Substantial assets were, and remain, in Country B.  The forum non conveniens application was made and rejected in Country B.  The husband consented to the dismissal of the competing Australian divorce proceedings.  The parties have a final hearing tomorrow.[16]  The Country B property proceedings being the only proceedings on foot, there is no basis, applying Australian jurisprudence, for finding that the wife has acted unconscionably in maintaining the Country B property proceedings merely because the parties have relocated to Australia.

    [16] See for example Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, in particular Deane J at 246-248; and Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, in particular the majority at 559 and 564-566; and, Henry & Henry (1996) 185 CLR 571, in particular at 587.

34. To the extent to which it is appropriate or necessary to consider the stay of Australian proceedings before considering the anti-suit injunction, there are no competing Australian proceedings. 

35. The absence of any Australian property proceedings raises issues as to the foundation on which the anti-suit injunction is sought. 

36. In relation to the spousal maintenance application, the grant of an anti-suit injunction would deprive the wife of an opportunity to have a claim for spousal maintenance heard and determined as there are no property proceedings in Australia.  No argument was advanced for why this should occur.

37. The situation with child maintenance or child support is somewhat different where child support was removed, except in exceptional circumstances, from the Courts.  The relevant principles are not necessarily limited to the usual situation of competing proceedings.  However, the husband must still establish a reason why the competent long-standing proceedings in Country B, or part of them, would be stayed.[17]

    [17] CSRLimited v Cigna Insurance Australia Ltd (1997) 189 CLR 345, in particular at 389-394.

38. Australian child support legislation makes provision for the circumstances of this case.  There is “utility” in the child maintenance orders of the Country B Family Court as a reciprocating jurisdiction.  There is no simple dual liability to pay both the Country B order and additionally an Australian administrative assessment.  While the circumstances in which a stay may be granted are not confined by past examples, I am not satisfied there is any reason why the Country B proceedings regarding child maintenance should be stayed.

39. Accordingly, the husband has not made out a basis on which I consider it appropriate to exercise the power to grant an anti-suit injunction in relation to the Country B property proceedings or any part of them.

40. Further, and in the alternative, the wife asserts that there is a single property proceeding in Country B, and that while there are interim child support and spousal maintenance orders, the final hearing tomorrow will deal with all issues as aspects of the one property proceeding on a final basis.  If that is so, then if the anti-suit injunctions sought were granted they might impact on the efficacy of the Country B property proceedings overall. 

41. The husband disputes that and says the issues are severable.  His argument was that given parenting and property were severable, with parenting Orders being entered in this Court, it follows that aspects of property are also severable.

42. I am not an expert in Country B law, nor are the parties.  There is no expert or other reliable evidence that establishes that it is possible to stay part only of the Country B property proceeding without impacting or impairing the final hearing of the remainder of those proceedings.  The husband’s analogy does not assist him.  The husband bore, but did not discharge, the onus to show that it would be possible to stay parts only of the Country B property proceedings without impacting the remaining proceedings. 

43. On this further and additional basis, I would also decline to grant the injunction sought.

44. Further, and in the alternative, it would rarely if ever be appropriate to divide out inter‑connected property issues in the way the husband proposes.  Assuming it is permissible, I am not persuaded this would be a case in which it is appropriate.[18]

    [18] D & L (2005) FLC 93-225, [2005] FamCA 479.

45. On this further and additional basis, I would also decline to grant the injunction sought.

46. Accordingly, I dismiss the husband’s application for an anti-suit injection at prayer 2 of this Application.  Given that the Country B proceedings are competent, and the husband is subject to the jurisdiction of that Court and has engaged in the proceedings, I do not consider it appropriate to make the orders sought at prayers 3 and 4.  Accordingly, I also dismiss those prayers.

47. In oral argument, the husband said if he were unsuccessful in his stay application because he had sought a stay only of spousal maintenance and child support issues, and conceded that the Country B property proceedings were otherwise competent and should proceed, as he has, that he intended to file a further application and seek an anti-suit injunction in respect of the whole proceeding.

48. Given the clear facts in this case, and in the context of a final hearing tomorrow, that would be an abuse of the processes of this Court.

49. Similarly, any attempt to commence property proceedings in Australia now, so as to provide a factual foundation to defeat the final hearing of the Country B property proceedings listed for tomorrow, would be an abuse of the processes of this Court.

1. The wife says the husband has failed to attend the final hearings to delay the Country B property proceedings.  She also says he has failed to make full and frank disclosure in the Country B property proceedings and has failed to comply with the orders of the Country B Family Court as to interim payments.  The husband denied all of that.  The husband says he has not appeared at a final hearing for good reason, saying he was sick, and otherwise does not admit what the wife says.  The wife says she is concerned that the husband will again send a bare sick certificate to avoid the final hearing tomorrow to endlessly delay the Country B property and divorce proceedings and wear her down.  These are all matters for the Country B Family Court. 

2. The parties did not address the additional relief sought by the wife in her Reply.  Those prayers were premised on the dismissal of the husband’s anti-suit injunction, which needed to be determined first.  While I have some doubts about the competency of the additional relief sought at this time, in the absence of argument, I will stand over prayers 3 and 4, and for costs if any at prayer 5, of the wife’s reply for mention.

   DECISION

3. For reasons given above, I refuse the husband’s application for an anti-suit injunction and the ancillary relief relating to child support registration.

4. I grant order 1 of the wife’s Response dismissing the husband’s Application.

5. The husband’s foreshadowed proposal to bring further applications for an anti-suit injunction or commence competing property proceedings in Australia would, on the evidence before me, likely be an abuse of the processes of this Court.

6. A copy of these Orders and Reasons for Judgment may be given to any legal practitioner acting for a party in the Country B property or divorce proceedings, and to any Court or Judicial Officer of the Family Court of Country B, and to the Child Support Registrar in Australia.

7. Those are my reasons.  I enter orders accordingly.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.

Associate:

Dated:       29 November 2023