Penhall & Gibbens - [2021] FamCA 210

FAMILY COURT OF AUSTRALIA
Penhall & Gibbens [2021] FamCA 210

File number(s): CAC 2790 of 2020

Judgment of: GILL J

Date of judgment: 8 April 2021

Catchwords: FAMILY LAW – PRIVATE INTERNATIONAL LAW – forum non conveniens – anti-suit injunction – property and parenting proceedings in Australia and France – test to be applied in parenting and property proceedings – divorce proceedings commenced in France but not in Australia – anti-suit injunction not granted in respect of divorce proceedings

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Pascarl & Oxley (2013) FLC 93-536

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

ZP v PS (1994) 181 CLR 639

Number of paragraphs: 12

Date of hearing: 8 April 2021

Place: Canberra

Solicitor for the Applicant: Virage Legal Family Lawyers

Counsel for the Respondent: Mr Stagg

Solicitor for the Respondent: Legal Aid ACT
ORDERS

CAC 2790 of 2020

BETWEEN:
MR PENHALL

Applicant

AND:
MS GIBBENS

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

8 APRIL 2021

THE COURT ORDERS THAT:
1.The wife is hereby restrained from taking any step to continue proceedings in France in relation to the marriage of the parties, insofar as those proceedings deal with, or relate to, the property of the parties or either of them or the children, X, born … 2012, and Y, born … 2015.
2.Pursuant to s 68L of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for X, born … 2012 and Y, born … 2015, and the Legal Aid Office of the Australian Capital Territory is requested to provide such representation.
3.The parties are to provide to the Canberra office of the Legal Aid Office of the Australian Capital Territory at 2 Allsop Street Canberra City ACT 2601 or GPO Box 512 Canberra ACT 2601 forthwith copies of all documents thus far filed by them in these proceedings.
4.Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.
5.Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
6.Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

IT IS NOTED THAT
7.These are proceedings that involve an application by the mother, a French citizen, to relocate permanently to France with her two children, who are also French citizens as well as Australian citizens. Accordingly, as the matter involves issues of international relocation this is a matter that will be given some priority within the Court list.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Penhall & Gibbens

Details

AGLC: Penhall & Gibbens [2021] FamCA 210
Case: [2021] FamCA 210
Decision Date: 8 April 2021

CaseChat Overview and Summary

In the matter of *Penhall & Gibbens*, Gill J considered an application for an anti-suit injunction in family law proceedings. The dispute involved property and parenting matters, with proceedings initiated in both Australia and France. The wife had commenced divorce proceedings in France, while the husband sought to restrain the wife from continuing proceedings in France concerning property and the parties' children.

The central legal issues before the court were whether an anti-suit injunction should be granted in respect of the French proceedings concerning property and parenting, and what test should be applied in determining such an application in the context of both property and parenting matters. The court also considered whether an anti-suit injunction was appropriate for the divorce proceedings themselves.

Gill J applied the principles governing anti-suit injunctions, noting that such relief is an extraordinary remedy. The court determined that an anti-suit injunction was appropriate in relation to the property and parenting aspects of the French proceedings, as Australia was the more appropriate forum for these matters. However, the court declined to grant an anti-suit injunction in respect of the divorce proceedings commenced in France, finding that it was not appropriate to restrain those specific proceedings.

The court ordered that the wife be restrained from continuing proceedings in France concerning the property of the parties or their children. Furthermore, an Independent Children’s Lawyer was appointed for the children, and directions were given for the provision of documents to the appointed lawyer and for the lawyer's access to documents produced on subpoena.

Orders

Orders of the court

CAC 2790 of 2020

BETWEEN:

MR PENHALL

Applicant

AND:

MS GIBBENS

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

8 APRIL 2021

THE COURT ORDERS THAT:

1. The wife is hereby restrained from taking any step to continue proceedings in France in relation to the marriage of the parties, insofar as those proceedings deal with, or relate to, the property of the parties or either of them or the children, X, born … 2012, and Y, born … 2015.

2. Pursuant to s 68L of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for X, born … 2012 and Y, born … 2015, and the Legal Aid Office of the Australian Capital Territory is requested to provide such representation.

3. The parties are to provide to the Canberra office of the Legal Aid Office of the Australian Capital Territory at 2 Allsop Street Canberra City ACT 2601 or GPO Box 512 Canberra ACT 2601 forthwith copies of all documents thus far filed by them in these proceedings.

4. Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.

5. Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

6. Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	CAC 2790 of 2020
Judgment of:	GILL J
Date of judgment:	8 April 2021
Catchwords:	FAMILY LAW – PRIVATE INTERNATIONAL LAW – forum non conveniens – anti-suit injunction – property and parenting proceedings in Australia and France – test to be applied in parenting and property proceedings – divorce proceedings commenced in France but not in Australia – anti-suit injunction not granted in respect of divorce proceedings
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Pascarl & Oxley (2013) FLC 93-536 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 ZP v PS (1994) 181 CLR 639
Number of paragraphs:	12
Date of hearing:	8 April 2021
Place:	Canberra
Solicitor for the Applicant:	Virage Legal Family Lawyers
Counsel for the Respondent:	Mr Stagg
Solicitor for the Respondent:	Legal Aid ACT

ORDER MADE BY:	GILL J
DATE OF ORDER:	8 APRIL 2021