Page and Page

[2016] FCCA 3126

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAGE & PAGE [2016] FCCA 3126

Catchwords:
FAMILY LAW – Anti-suit injunction – respondent commenced proceedings in the United Kingdom – United Kingdom Court has issued a temporary stay – injunction listed for argument in United Kingdom Court next week – comity of courts.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Mokbel v Attorney-General for Commonwealth of Australia [2007] FCA 1536

CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345
Henry v Henry (1996) 185 CLR 571

Applicant: MR PAGE

Respondent: MS PAGE

File Number: DGC 794 of 2015

Judgment of: Judge Harland

Hearing date: 23 November 2016

Date of Last Submission: 23 November 2016

Delivered at: Dandenong

Delivered on: 23 November 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Marchetti

Solicitors for the Respondent: Nicholes Family Lawyers

ORDERS

1. The proceedings be stayed until further order.

NOTING

1. The parties provide a copy of the orders or judgment from the United Kingdom proceedings to the Chambers of Judge Harland at [email protected].

IT IS NOTED that publication of this judgment under the pseudonym Page & Page is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 794 of 2015

MR PAGE

Applicant

And

MS PAGE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is the first return date of the applicant’s application for property and other financial relief.  There is also an application for divorce which has a return date of 13 March 2017.  There were proceedings in the Federal Circuit Court of Australia in 2015 with respect to children.  The children live with the husband here; the wife lives in the United Kingdom (“UK”).  The proceedings between the parties began after the mother took the children to the UK. The father successfully made an application for the children to be returned to the proceedings pursuant to the Hague Convention on the Civil Aspects on International Child Abduction.  The wife has filed proceedings in the UK for divorce and ancillary proceedings seeking property and financial relief.  I note that it is not possible under the UK law to file for divorce separately from seeking property and other relief.  They are referred to as ancillary relief in that jurisdiction.

3. I also note that the wife did have property proceedings on foot in the proceedings in Australia but was given leave to withdraw those proceedings when final parenting orders were made in the Family Court of Australia in 2015.  The wife commenced her proceedings in the UK in April 2016. The husband does not dispute this.  What he does dispute is the issue of service with respect to those proceedings.  There is a dispute between the parties as to whether or not they were avoiding service of the other parties competing applications.

4. It would not be appropriate for me to comment on the merits or otherwise of the applications in circumstances where there are proceedings on foot in the UK with respect to the threshold issue of which Court should exercise its jurisdiction.  There is no doubt that both Courts have jurisdiction to hear the financial issues between the parties, given the parties’ respective residences and the fact that there is real property located in both the UK and Australia.  The question is:  which Court should exercise its jurisdiction?

5. Interim orders were made by the High Court of Justice in the UK on 10 November 2016 temporarily staying the Australian proceedings, pending a further hearing with respect to the jurisdictional argument.  Both parties have filed material before the English Court, setting out the material that is relevant to that issue.  I am mindful of the principles of international comity between courts and in this regard refer to the decision of Gordon J, who was then a judge of the Federal Court of the Australia, in Mokbel v Attorney-General for Commonwealth of Australia [2007] FCA 1536. I am also mindful of the Full Court of the Family Court of Australia’s authorities on this issue as well as the High Court of Australia’s (“High Court”) authorities, including the decisions of CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345, the decision of Henry v Henry (1996) 185 CLR 571, which really dictate that I not take steps to determine this matter whilst that very same issue is already before the English Court and has a hearing next week.

6. In those circumstances the only appropriate course to take is to make an order that is in line with the order made in the UK to stay the divorce proceedings and the property proceedings here until the hearing before the High Court of Justice is determined on 30 November 2016.  If the High Court of Justice determines that it should be seized of the jurisdiction, then the proceedings would proceed there, subject to any appeal rights the husband may exercise.  If the High Court of Justice forms the view that the Australian Court should exercise the jurisdiction, then the matter would proceed here, subject to any appeal rights the wife may exercise.

7. Both parties agree that if the Australian Courts do remain seized of the matter it should be transferred to the Family Court, given the fact that the Family Court is the superior Court of record and, probably most importantly, in these circumstances where there is real property in both Australia and England the services of the International Judges Network can be used to facilitate any enforcement or implementation of orders.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 5 December 2016