FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAHNI & KAMDAR | [2018] FCCA 937 |
| Catchwords: FAMILY LAW – Anti-suit injunction – parties of Indian ethnicity – arranged marriage – parties have permanent residence in Australia – respondent wife resides in Australia from 2007 to 2017 – respondent transferred substantial funds from Australia to India – property proceedings instituted in Federal Circuit Court of Australia – respondent actively participated in proceedings – respondent travelled to India mid-2017 – respondent issued multiple proceedings in India – respondent seeks substantially the same relief as sought in Australia – both parties legally represented in Australia and India – applicant seeks relief in the form of an anti-suit injunction – Indian Court concerned to know outcome of Australian proceeding before making final orders – Australian Court not a clearly inappropriate forum – respondent’s conduct in commencing foreign proceedings in unconscientious disregard of the applicant’s legal rights – jurisdiction of the Federal Circuit Court – power to protect the integrity of the Court’s processes once set in motion – discretionary factors favour grant of relief – caution required – anti-suit injunction granted. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 34, 39, 42, 72, 79, 114 Federal Circuit Court of Australia Act 1999 (Cth), ss.8, 10, 15 |
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- AGLC
- Sahni and Kamdar [2018] FCCA 937
- Case
- [2018] FCCA 937
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant an injunction restraining Ms Kamdar from prosecuting her Indian proceedings, and whether to restrain her from leaving Australia. The court also had to consider the terms of any such injunctions, including exceptions for specific types of proceedings, and the procedural steps required for their implementation and eventual vacation.
The court reasoned that it had the power to grant such injunctions to prevent vexatious or oppressive litigation, or where proceedings in a foreign jurisdiction were contrary to the interests of justice. The court applied principles relating to the exercise of its discretion to restrain foreign proceedings, considering factors such as the connection of the parties and the subject matter to Australia, and the potential for multiplicity of proceedings. The court also considered the need to ensure the efficacy of Australian family law proceedings.
The court ordered that Ms Kamdar be restrained from continuing her existing maintenance and property-related suits in India, and from commencing any new such proceedings. However, exceptions were made for a criminal proceeding concerning dowry and for proceedings to recognise or enforce Australian orders. Ms Kamdar was also ordered to take steps to stay her Indian suits and discharge an Indian injunction. Furthermore, Ms Kamdar was restrained from leaving Australia, with provisions for her placement on an Airport Watch List, and the matter was listed for mention and final hearing. Costs were reserved.
Orders
Orders of the court
1.
Until further order, the respondent be and is hereby restrained whether by herself, her servants or agents or howsoever otherwise from continuing to prosecute her proceedings in India:
(a) in a suit for the recovery of maintenance as instituted in the Court of Civil Judge, Senior Division, (omitted) India;
(b) in a suit for the recovery of arrears of maintenance as instituted in the Court of Civil Judge, Senior Division, (omitted) India;
(c) in a suit for relief including the payment of maintenance as instituted in the Court of Chief Judicial Magistrate, (omitted) India;
(d) for an injunction, charge or other relief in aid of the aforesaid claims for the payment or recovery of maintenance; and
(e) for relief in respect of any property of the parties to this proceeding.
2.
Until further order, the respondent be and is hereby restrained whether by herself, her servants or agents or howsoever otherwise from commencing any proceeding in India by way of suit or other claim of relief for:
(a)the payment or recovery of maintenance;
(b) an injunction, charge or other relief in aid of any such suit for the payment or recovery of maintenance; or
(c) relief in respect of any property of the parties to this proceeding.
3.
Paragraphs 1 – 2 of this Order shall not operate so as to prevent the respondent from:
(a) prosecuting the criminal proceeding instituted in (omitted), India, by the respondent together with her parents against the applicant and his parents respectively seeking relief in relation to an alleged dowry; or
(b) prosecuting any proceeding in India seeking the recognition or enforcement of any order that is made in this proceeding.
4.
Direct that the respondent forthwith do all acts and things and sign all documents necessary so as to apply for:
(a) a stay of each of the proceedings in India for the recovery of maintenance as referred to in paragraph 1 of this Order; and
(b) the discharge of the injunction granted on 28 March 2018 in Civil Suit No (omitted) issued out of the Court of (omitted) India.
5.
Further direct that the respondent file a copy of this Order in each of her suits for relief:
(a)before the Civil Judge, Senior Division, (omitted) India; and
(b) before the Chief Judicial Magistrate, (omitted) India.
6.
Until further order, the respondent be and is hereby restrained from leaving the Commonwealth of Australia.
7.
For the purposes of paragraph 6 of this Order, the applicant forthwith provide a copy of this Order to the Australian Federal Police requesting that the respondent, MS KAMDAR born (omitted) 1984, be placed on the Airport Watch List at all points of international departure from Australia for the purpose of preventing her from leaving Australia in breach of this Order.
8.
Upon compliance with paragraphs 4 – 5 of this Order, the applicant and respondent forthwith do all acts and things and sign all documents as may be necessary to remove the respondent’s name from the Airport Watch List.
9.
The proceeding is listed for mention at 10.00am on 4 May 2018 to consider whether an order be made vacating paragraph 6 of this Order.
10.
The proceeding is set down for final hearing on 3 September 2018.
11.
At the final hearing, each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).
12.
Other than as provided in these orders, no party may file or rely upon any further evidence without leave of the court.
13.
The evidence of each party and any witness be by way of affidavit as provided by paragraph 11 of this Order, and:
(a) the applicant electronically file and serve any affidavits to be relied upon at the final hearing not later than 21 days prior to the hearing;
(b) the respondent electronically file and serve any affidavits to be relied upon at the final hearing not later than 14 days prior to the hearing.
14.
By 4.00pm on 3 August 2018, the parties file and serve an outline of case not more than 12 pages in length (12 point font and 1.5 spacing) to address the following:
(a) a list of the material relied upon;
(b) a brief chronology listing significant events;
(c) a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;
(d) main contentions on disputes as to:
i. inclusion of items in the pool; and
ii. the value of items where the value is in dispute;
(e) list of contributions claimed or contended for and the percentage assessment on contributions contended for;
(f) list of other factors relied upon (s 75(2) factors) and percentage adjustment contended for;
(g) other contentions relevant to determining a ‘just and equitable’ division of property; and
(h) the precise orders sought.
15.
The costs of this application are reserved.
AND THE COURT NOTES THAT:
A. The parties are in contest whether the applicant has already disposed of his beneficial interest in the (Indian property) property.
Background
Background to the litigation
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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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