Rowden & Rowden

[2022] FedCFamC1F 1086

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Rowden & Rowden [2022] FedCFamC1F 1086

File number(s):	BRC 13356 of 2021
Judgment of:	JARRETT J
Date of judgment:	7 November 2022
Catchwords:	FAMILY LAW – PROPERTY – Where there is an application to adjourn the proceedings – Where there are separate applications for a stay of the proceedings and an anti-suit injunction – Where there is a judgment of the Country B court likely to be subject of appeal – Where the appeal process may take some 12 months – Where continuing the proceedings in Australia would bifurcate the proceedings – Where property in Country B could be taken into account under section 79 of the Family Law Act 1975 (Cth) – Adjournment refused – Stay application dismissed – Anti-suit injunction application dismissed
Legislation:	s 79 Family Law Act 1975 (Cth)
Division:	Division 1 First Instance
Number of paragraphs:	5
Date of hearing:	7 November 2022
Place:	Brisbane
Counsel for the applicant:	Mr Wilson KC
Solicitor for the applicant:	Page Provan
Counsel for the respondent:	Mr Kirk KC
Solicitor for the respondent:	Ryan Kruger Lawyers

ORDERS

BRC 13356 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ROWDEN

Applicant

AND:

MR ROWDEN

Respondent

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	7 NOVEMBER 2022

BY CONSENT THE COURT ORDERS THAT:

1.The respondent file and serve a response and any other documents required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by 4:00pm on 5 December, 2022.

2.By 4.00pm on 21 November, 2022 the respondent shall provide, in writing:

(a)a panel of three experts capable of giving an expert opinion on the value of the real property held by both of the parties or either of them in Australia;

(b)a panel of three experts capable of giving an expert opinion on the value of the real property held by both of the parties or either of them in Country B;

(c)a panel of three experts capable of giving an expert opinion on the value of the business interests held by both of the parties or either of them in Australia; and

(d)a panel of three experts capable of giving an expert opinion on the value of the business interests held by both of the parties or either of them in Country B.

3.Within seven (7) days of receiving a panel from the respondent pursuant to paragraph 2, the applicant will nominate, in writing, her selection from the respective panel.

4.The respondent will meet his disclosure obligations under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by 4.00pm on 19 December, 2022.

THE COURT FURTHER ORDERS THAT:

5.The application by the respondent to adjourn the proceedings until the finalisation of an appeal lodged in the courts of Country B is refused.

6.The application by the respondent to permanently stay the proceedings is dismissed.

7.The application by the applicant for an anti-suit injunction is dismissed.

8.The application is adjourned for case management hearing at 9.30am on 13 February, 2023.

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

REASONS FOR JUDGMENT

JARRETT J:

1. I am not inclined to adjourn the applications.  I appreciate that there is a judgment of the Country B court that now is likely to be the subject of a leave to appeal application and an appeal application.  It might be that those applications are not without some real prospect of success.  But having said that, there are delays involved in the appeal process which means that these parties will be delayed perhaps at least, 12 months or so, before, as counsel for the wife points out in his submissions, the property adjustment proceedings in Country B proceed get started or at all. 

2. The judgment in the Country B court does not prevent proceedings here.  It bifurcates the litigation between the parties as between property in Country B and property in Australia.  It is said that that will lead to the inevitable conclusion that there can be no final property order between these parties under either the relevant Country B legislation or the Family Law Act 1975 here in Australia. I am not sure that that is, with respect, correct, because although the wife is enjoined from seeking adjudication here in respect of Country B property, that does not suggest that that property cannot be taken into account here in Australia when this court makes a determination under s 79 of the Family Law Act 1975.  The husband says that it might be the case, or it is the case, that he does not wish to retain all of the property in Country B, but even if that is so, that does not mean that the proceedings in Australia could not proceed to finality.  I am not persuaded that it is appropriate to adjourn these applications that are presently before me.  The application for the adjournment is refused. 

3. The husband’s stay application will be dismissed, because, for the reasons set out in the husband’s own outline, in the absence of jurisdiction in this Court to deal with the Australian property at the very least, nothing could be done.  So it is appropriate to dismiss that application.  It can be re-enlivened, of course, if it turns out that the appeal in Country B is successful and there are some orders made there that make it appropriate to re-enliven it. 

4. The wife’s application for an anti-suit injunction will also be dismissed on the same basis.  That is, in the event that it should be re-enlivened – or could be re-enlivened – she has the opportunity to do that – but to hear and determine that application now in light of the husband’s application for leave to appeal would be inappropriate, and to have it adjourned would effectively be, in my view at least, a distraction to the parties to really getting on with resolving what can easily, I would have thought, be resolved.  There is substantial property in this case.  The issues do not seem to be particularly difficult, having regard to the - albeit incomplete - material that I have read thus far, and one might have thought that the case could be dealt with very quickly, very efficiently, and certainly well within the timeframes that are otherwise expected in terms of the disposition of the appeal in Country B. 

5. So both of those applications will be dismissed for those reasons. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.

Associate:

Dated:       7 November 2022