SCARFFE & OBANNON
[2020] FamCA 77
•18 February 2020
FAMILY COURT OF AUSTRALIA
| SCARFFE & OBANNON | [2020] FamCA 77 |
| FAMILY LAW – PROPERTY DIVISION – husband residing in Australia, wife residing in Singapore – majority of assets located in Australia. PRIVATE INTERNATIONAL LAW – litigation commenced by wife earlier in time in Singaporean court – stay application of that proceeding brought by husband refused by Singapore court – no written reasons given – this proceeding commenced in this court by husband later in time – both pieces of litigation at embryonic phase. FORUM NON CONVENIENS – whether Australia not the clearly inappropriate forum – relevant Australian and international authorities examined. FAMILY LAW – STAY APPLICATION – whether this proceeding should be stayed – Voth v Manildra considered – CSR v Cigna considered. FAMILY LAW – ANTI-SUIT INJUNCTIONS – detailed examination of jurisprudence – injunction ordered restraining respondent in personam from continuing with proceeding in Singapore Court – enforceability of orders of this court in relation to property in Australia a critical point in the determination of that issue. |
| Evidence Act 1995 (Cth), ss 55, 140 Family Law Act 1975 (Cth), ss 34, 75(2), 79 Family Law Rules 2004 (Cth), divs 15.5.4, 15.5.5, 15.5.6 Foreign Judgments Act 1991 (Cth) Judiciary Act 1903 (Cth), s 78B(5) Women’s Charter (Singapore, cap 353, 2009 rev ed), ss 95, 112, 113, 114, 121D(3) Supreme Court of Singapore, Practice Directions (Amendment No. 5 of 2014), 1 October 2014 |
| ACY v ACZ [2014] 2 SLR 1320 Amador & Amador (2009) 43 Fam LR 268 ANJ v ANK [2015] 4 SLR 1043 ARY v ARX [2016] 2 SLR 686 ATE v ATD [2016] SGCA 2 ATT v ATS [2012] 2 SLR 859 Bank of Tokyo Ltd v Karoon [1987] AC 45 Banks & Banks [2015] FamCAFC 36 Barkley & Barkley (1976) 1 Fam LR 11,554 Belhaj v Straw [2017] AC 964 BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169 Bills & Bills [2015] FamCA 1193 Briginshaw v Briginshaw (1938) 60 CLR 336 British Airways Board v Laker Airways Ltd [1984] QB 142 British Airways Board; British Caledonian Airways Ltd v Laker Airways Ltd [1985] AC 58 British South Africa Co v Companhia de Mocambique [1893] AC 602 Britt v Britt (2017) 56 Fam LR 526 Carron Iron Co Proprietors v James Maclaren, Henry Dawson, E H Tibbats Stainton (1855) 10 ER 961 Castanho v Brown & Root (UK) Ltd [1981] AC 557 Chan Tin Sun v Fong Quay Sim [2015] SGCA 2 Christie v Christie (2007) 37 Fam LR 181 Cole & Abati (2016) 55 Fam LR 329 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 D v L (2005) 33 Fam LR 525 Deiter v Deiter [2011] FamCAFC 82 Eaby & Speelman [2015] FamCAFC 104 East v Coulson (2010) 43 Fam LR 531 Foo Ah Yan v Chiam Heng Chow [2012] SGCA 15 Garrett & Cowell [2007] FamCA 778 Gillard & Gillard [2016] FamCA 841 Hamilton v Oades (1989) 166 CLR 486 Henry v Henry (1996) 185 CLR 571 Hillam & Barret [2019] FamCA 193 Ho Ah Chye v Hsinchieh Hsu Irene [1994] 1 SLR(R) 485 Hong Pian Tee v Les Placements Germain Gauthier Inc [2002] 1 SLR(R) 515 Hughes & Hughes [2014] FamCA 12 Hunt & Hunt [2005] FamCA 849 In the Marriage of Baba and Jarvinsen (1980) 6 Fam LR 276 In the Marriage of Caddy & Miller (1986) 10 Fam LR 858 In the Marriage of Dobson and Van Londen (2005) 33 Fam LR 525 In the Marriage of Doherty (1995) 20 Fam LR 137 In the Marriage of Ferguson (1978) 4 Fam LR 312 In the Marriage of Gillies (1981) 7 Fam LR 106 In the Marriage of Hill (2005) 32 Fam LR 552 In the Marriage of Soblusky (1976) 2 Fam LR 11,528 In the Marriage of Waters & Jurek (1995) 20 Fam LR 190 Incitec Ltd v Alkimos Shipping Corporation (2004) 138 FCR 496 Ismail v Elfar [2011] FamCA 716 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 JAF v JAE [2016] 3 SLR 717 Jago v District Court of New South Wales (1989) 168 CLR 23 Jess & Jess [2013] FamCA 863 Jess & Jess (2014) 52 Fam LR 43 Kemeny & Kemeny (1998) 23 Fam LR 105 Kennon & Kennon (1997) 22 Fam LR 1 Kent & Kent [2017] FamCAFC 157 Keskin & Keskin [2019] FamCA 384 Kuwait Airways Corporation v Iraqi Airways Co (No 3) [2001] 1 All ER (Comm) 557 Lan & Hao(No 2) (2017) 325 FLR 1 Lederer v Hunt (2007) 36 Fam LR 587 Maine & Maine (2016) 56 Fam LR 500 Marvel v Marvel (2010) 43 Fam LR 348 Neat Holdings Pty Ltd v Karajon Holdings Pty Ltd (1992) 110 ALR 449 NK v NL [2007] 3 SLR 743 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Pagliotti v Hartner (2009) 41 Fam LR 41 Pan Australia Shipping Pty Ltd v Ship “Comandate” [2006] FCA 881 Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Redmond & Redmond [2014] FamCAFC 155 Reynolds & Reynolds (1977) 33 FLR 232 S & S [2003] FamCA 905 Salah & Salah (2016) 56 Fam LR 299 Sieling & Sieling (1979) 4 Fam LR 713 Skinner & Alfonso-Skinner [2010] FamCA 329 Smith & Saywell (1980) 6 Fam LR 245 Smith Brian Walker v Foo Moo Chye [2009] SGDC 256 SociétéNationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 Spence & Spence [2008] FamCA 263 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 SS & AH [2010] FamCAFC 13 St Justins Properties Pty Ltd v Rule Holdings Pty Ltd (1980) 40 FLR 282 Tan Poh Beng v Choo Lee Mei [2014] 4 SLR 462 Tansell v Tansell (1977) 3 Fam LR 11 Telesto Investments Ltd v UBS AG (2012) 262 FLR 119 Teo & Guan (2015) 53 Fam LR 248 TGT v TGU [2015] SGHCF 10 TNL v TNK [2017] 1 SLR 609 TQN v TQO [2016] SGHCF 13 Underwood & Underwood [2017] FamCAFC 267 United Pacific Finance Pty Ltd v Tarrant [2009] NSWSC 630 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Whelan & Whelan [2010] FamCA 530 White & Temple [2014] FamCA 396 Whung & Whung (2011) 45 Fam LR 269 Wileypark Pty Ltd v AMP Limited (2018) 130 ACSR 66 Witham v Holloway (1995) 183 CLR 525 Wong Siew Boey v Lee Boon Fatt [1994] 1 SLR(R) 323 Yeo & Huy (No 2) [2012] FamCA 541 Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157 |
| Martin Davies, Andrew Bell, Paul Brereton and Michael Douglas, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 10th ed, 2020) Richard Garnett, Foreign States and Australian Courts (2005) 29(3) Melbourne University Law Review 704 Thomas Raphael QC, The Anti-Suit Injunction (Oxford University Press, 2nd ed, 2019) |
| APPLICANT: | Mr Scarffe |
| RESPONDENT: | Ms Obannon |
| FILE NUMBER: | MLC | 2940 | of | 2019 |
| DATE DELIVERED: | 18 February 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Honourable Justice Wilson |
| HEARING DATE: | 16 January 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr R. Hoult |
| SOLICITOR FOR THE APPLICANT: | Barbayannis Lawyers Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr I. Mawson QC |
| SOLICITOR FOR THE RESPONDENT: | Coote Family Lawyers |
orders
The respondent’s application to stay this proceeding is refused.
The respondent is restrained from continuing with proceeding …/2019 in the Family Justice Courts in Singapore or other similar proceeding until further order.
The applicant’s application for the appointment of a single expert to value the land and improvements of B Street, Suburb C is referred to the docketed registrar.
The applicant’s application for an order for full and frank disclosure by the wife is referred to the docketed registrar.
The further hearing of this proceeding is referred to the docketed registrar for ongoing case management.
The applications for interim orders sought in paragraphs 1 to 4 of the respondent’s response are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Scarffe & Obannon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2940 of 2019
| Mr Scarffe |
Applicant
And
| Ms Obannon |
Respondent
REASONS FOR JUDGMENT
Introduction
On 16 January 2020 the hearing of an interim defended application for an anti-suit injunction came before me having been referred by a registrar of this court by orders made 6 June 2019.
By initiating application filed 21 March 2019 the applicant sought orders under s 79 of the Family Law Act. In her response filed 18 September 2019 the respondent sought interim as well as final orders –
a)dismissing this proceeding;
b)staying this proceeding;
c)restraining the applicant from taking any step in this proceeding; and
d)for costs.
In précis form, the essential contest in this application was whether to stay or to dismiss this proceeding on the basis that it is clearly the inappropriate forum for the hearing and determination of property proceedings between the parties.
Property division litigation is already on foot in Singapore. An application by the applicant to restrain the Supreme Court of Singapore from hearing and determining that litigation was refused.
In this application the applicant (the husband) contended that the litigation in Singapore will not fully and exhaustively determine all property issues between the parties because issues relating to superannuation fall for determination and only this court, says the applicant, has jurisdiction to determine issues for splitting Australian superannuation amounts. He also said the majority of assets were located in Australia.
In his amended initiating application the husband sought an array of amended interim orders. They included the following –
a)an application to dismiss the orders sought by the wife in her response filed 18 September 2019;
b)a declaration that Australia is not a clearly inappropriate forum for the determination of property and spousal maintenance matters such that this proceeding should proceed with full force and effect;
c)an application to restrain the wife from taking any action in any court in Singapore including in proceeding …2019 in the Family Justice Courts of the Republic of Singapore;
d)the appointment of a single expert to value the land and improvements known as B Street, Suburb C;
e)an application for orders for the wife to give full and frank disclosure of her tax returns, bank statements, shareholdings, superannuation statements and entitlements under the estate of her late father; and
f)costs.
Detailed affidavits were filed by each party along with very helpful written submissions on the threshold question of the anti-suit injunction.
Synopsis
For the reasons that follow, in my view –
a)this proceeding should not be stayed or dismissed;
b)this court is not clearly the inappropriate forum for the hearing and determination of the lis pendens between these parties;
c)the respondent should be restrained by an in personam anti-suit injunction in relation to the litigation in Singapore; and
d)the further conduct of this proceeding should be managed by a registrar of this court.
Relevant factual setting
In order to put this dispute in context it is necessary to narrate certain factual issues. The matters set out below were taken from the affidavit of the applicant sworn 6 November 2019 and from the affidavit of the respondent affirmed 23 December 2019. The applicant deposed –
a)he is 48 years of age who, while married to the respondent, worked in the finance industry;
b)the respondent has since May 2014 lived in Singapore and works as a researcher operating her own business;
c)the applicant and respondent met in late 1995 or early 1996, they began living together in Australia in early 1997 and they married in 2014;
d)they have a 15 year old daughter, a 13 year old son and a 10 year old daughter;
e)but for a six month period when they lived in the UK between late 2011 and early 2012 the applicant and respondent lived in Australia between the date of the commencement of their cohabitation and their move to Singapore in 2014;
f)after a 19 year relationship they separated in August 2016 when the applicant left their family accommodation in Singapore;
g)in May 2018 the applicant returned to Australia to live permanently in Australia;
h)the respondent and the children of the applicant and respondent live in Singapore;
i)all five family members are Australian citizens;
j)upon their first move to Singapore, the respondent and the children were granted dependency passes under the applicant’s employment contract;
k)the applicant has not held an employment pass in Singapore since May 2018 when he returned to Australia;
l)the respondent’s employment pass will come to an end in 2020 but there is no certainty it will be renewed;
m)all matrimonial property is located in Australia including jointly owned real estate in Suburb C, funds in bank accounts, investments and superannuation; and
n)the respondent has a 50% interest in her late father’s residuary estate.
In the passages below I have narrated the details of the Singapore litigation separately.
According to the respondent, she made two affidavits. The first was notarised by a notary public in Singapore on 17 September 2019. It was more substantive than was the respondent’s 23 December 2019 affidavit. In her September 2019 affidavit the respondent deposed to –
a)her age, health and occupation as a researcher;
b)their children, the details of which corresponded with those given by the applicant;
c)she and the children continue to reside in Singapore;
d)her’s and the childrens’ current residency in Singapore;
e)her difficulties occasioned by separation;
f)the applicant’s confusion about his sexuality and gender identity;
g)his statement to the respondent’s mother that he wanted to end the marriage;
h)his threatened attempted suicides;
i)his hospitalisation;
j)their final separation in January 2017;
k)the applicant’s family violence towards the respondent; and
l)the respondent’s application for a personal protection order in June 2017 in Singapore.
The respondent deposed to the District Judge dismissing the applicant’s application to stay the Singapore proceeding on the basis of forum non conveniens. She said the applicant did not appeal against that determination.
She said that in this proceeding the property issues falling for determination were the division of a single asset, namely, the Suburb C home that is jointly owned as well as her inheritance. She said significant tax issues have arisen as she is an overseas resident.
The respondent gave evidence in her affidavit made 23 December 2019 about the status and history of the Singapore proceeding. In essence, relevantly distilled she said the following –
a)she commenced litigation (…/2019) in Singapore in which she sought orders for divorce, parenting, a division of matrimonial assets, spousal maintenance and child support;
b)under Singaporean divorce law, the divorce is conducted first and then, what are called “ancillary matters”, are dealt with thereafter;
c)ancillary matters include division of assets, alimony, custody as well as care, control and access to the children;
d)the applicant and the respondent agreed on the divorce aspect but not on the ancillary matters;
e)only when all ancillary matters are concluded, whether by agreement or order is a final judgment ordered after which the parties are free to remarry;
f)the applicant and the respondent participated in a mediation on 4 November 2019 and 10 December 2019; and
g)a case conference was to be held on 23 January 2020.
The applicant devoted considerable attention to the Singapore litigation in his affidavit sworn 6 November 2019. The following is a distillation of the key issues that emerged from his evidence on point –
a)on 3 April 2017 he consented to an order for the children to spend time with him;
b)both he and the respondent applied for personal protection orders against the other yet both applications were withdrawn on 4 January 2018;
c)he was served with court documentation in relation to the Singapore litigation on 20 February 2019;
d)on 26 March 2019 the applicant applied to stay the Singapore proceeding;
e)on 7 August 2019 the stay application was dismissed, there being no written reasons for decision; and
f)he has filed a defence and counter-claim in the Singapore proceeding.
As to property and its whereabouts, the applicant addressed the issue in reference to Australia as well as in reference to Singapore. So far as property in Australia was concerned, he said it was made up of the following –
a)the Suburb C home, estimated to be valued at approximately $2.8m;
b)joint funds in a Commonwealth Bank account estimated to be $530,000;
c)net proceeds of sale of land in D Town, estimated to be $12,000;
d)the applicant’s cash at bank of about $5,000;
e)the respondent’s cash at bank in an unknown amount;
f)the respondent’s shares in E Ltd valued at $3,564;
g)the respondent’s F Ltd shares valued at $51,625;
h)the respondent’s shares in G Ltd the value of which was unknown;
i)the respondent’s other Australian investments the amount of which was unknown;
j)the applicant’s two motor vehicles having an estimated value of $8,000;
k)the applicant’s superannuation having an estimated value of $111,000; and
l)the respondent’s superannuation having an unknown value.
The applicant mentioned the respondent’s 50% share in her late father’s residuary estate. He estimated the whole of the residuary estate was valued in the region of $11m. He also stated that a caveat lodged by the company once owned and controlled by the respondent’s father (when he was alive) was registered on the title to certain land. The applicant said the caveat related to some alleged loan, although the applicant disputed the existence of the loan.
So far as property in Singapore was concerned, the applicant said the respondent had funds in a bank account there as well as her company. He said there were no joint funds in Singapore.
The applicant addressed the parties’ connection to Victoria. He identified the following issues –
a)between 1997 and 2014 the applicant and respondent lived in Australia;
b)they spent about two years together in Singapore;
c)their children were born and raised in Victoria;
d)they moved to Singapore on a temporary basis;
e)the children are on waiting lists at expensive, select private schools in Melbourne;
f)all five family members are Australian citizens and the respondent has not applied for permanent residency in Singapore; and
g)all family members have a close connection to extended families in Australia.
Between paragraphs 64 and 67 of his affidavit the applicant outlined factors (some more akin to submissions than fact) that indicated how this court could more effectively resolve the lis pendens between the parties. He pointed up –
a)the overwhelming majority of the parties’ property is in Australia;
b)any division of property will need to take into account real property, superannuation and the respondent’s inheritance;
c)any orders that are made should be enforceable in Australia;
d)a superannuation splitting order is likely;
e)so far as the Suburb C real estate is concerned, a stamp duty exemption is likely to be required if a transfer is ordered;
f)most witnesses in the proceeding will be residents in Australia; and
g)if capital gains tax is payable on a sale of the Suburb C property, then such tax will need to be calculated, assessed and paid in Australia.
At paragraph 18 of his affidavit the applicant pointed out why, so he said, the Singapore proceeding would not effectively and exhaustively determine the lis pendens between the parties. He said –
a)the Singapore court may not make orders in relation to Australian property;
b)the Singapore court will not take into account the respondent’s interest in her late father’s estate;
c)the Singapore court may not take into account the period during which the parties lived in a de facto relationship between 1997 and 2014, potentially therefore significantly undervaluing important contributions made during the parties’ relationship; and
d)in the Singapore proceeding allegations of unreasonable conduct were made involving allegations of crossdressing and confusion in respect of his sexual orientation, which he said were in many respects not true.
The applicant acknowledged that the respondent filed her litigation first. However, he said she was forum shopping. He said the respondent has no impediment to participating in this proceeding.
Singaporean family law
Enough has been written in the foregoing to demonstrate that each party has availed himself or herself of the legal processes of the Republic of Singapore as well as the Commonwealth of Australia. It may be fairly said that neither case (that is to say, the Singaporean case as well as this) has advanced terribly far. In Singapore the divorce has not yet been granted and the ancillary matters are scarcely underway. In this court the initiating application has been filed, affidavits concerning this interlocutory application have been filed yet the case is largely embryonic in its development. As things presently stand, both parties have participated in the litigation process of each jurisdiction. A large amount of litigation awaits, in either jurisdiction. It would exert an unacceptable financial and emotional toll for the parties to be vexed with litigation, largely about the same issues, in the courts of two places. In the Singaporean court, the applicant’s stay application was refused, yet it is not possible for me to understand on what grounds as no written reasons were given. The applicant seeks an order from me, in personam in nature, the effect of which will be to restrain the respondent from further prosecuting the issues she has chosen to ventilate in the Singaporean courts. It would be open to argue that the applicant, having failed to obtain an order staying the Singaporean proceeding, is applying for the same order in a different forum.
To my mind, one of the more important questions is the extent to which Singaporean family law and Australian family law is different. That was important because it bore on the question of which court could most exhaustively and comprehensively determine the issues between the parties.
The expert evidence on Singaporean law
Ms H swore an affidavit in this proceeding on 16 December 2019. That affidavit was filed on behalf of the applicant. It was not an expert report within the contemplation of the Family Law Rules. However, on behalf of the respondent Mr Mawson QC urged me to read it so as to obtain evidence about Singaporean law on the discrete issues relevant to this case. It is necessary to record some of the key matters arising out of that affidavit. They were as follows –
a)Ms H was a registered legal practitioner admitted to practise law in Singapore;
b)she was requested to provide a report “relating to the matrimonial dispute between the parties and the application of Singaporean matrimonial law”;
c)she received a list of questions from the applicant’s solicitors with a letter of instructions dated 25 September 2019;
d)she exhibited to her affidavit the letter of instructions and list of questions dated 25 September 2019;
e)she provided a report dated 24 October 2019;
f)on 6 November 2019 Ms H received a further list of questions from the applicant’s solicitors;
g)on 3 December 2019 Ms H responded to those further questions; and
h)she read and understood divisions 15.5.4, 15.5.5 and 15.5.6 of the Family Law Rules.
The list of questions attached to the letter of instruction revealed nine separate questions that Ms H was asked. They were as follows –
1.The husband and wife each have assets in Australia, including a real property registered in their joint names and superannuation. In relation to property/assets outside of Singapore:
a.does the court in Singapore have the power to make orders in relation to that property? Specifically, does the court have the power to order:
i. a transfer of real property located in Australia from the parties’ joint names to one of the parties;
ii. a sale of real property located in Australia;
iii. a transfer of shareholdings or other investments held in Australia from one party to the other;
iv. a sale of shareholdings or investments held in Australia; and
v. superannuation splitting orders, to transfer one party’s superannuation entitlements (or part thereof) to the other party’s superannuation fund; and
b.if the answer to 1(a) is yes, is the court likely to make orders in relation to those property/assets or is the ordinary course to adjust the property/assets in Singapore to take into account the ownership of property/assets outside of Singapore?
2.Are property adjustment orders in Singapore made in rem or in personam?
3.What is the process the Singapore court will undertake in determining the property division and spousal maintenance application in Singapore and what is the likely outcome for the husband?
4.The husband and wife lived together in a relationship between 1997 and 2014, before marrying in 2014. Does Singapore recognise the periods of cohabitation before marriage in determining property and/or spousal maintenance matters.
5.The wife has an interest in the estate of her late father, which is being administered in Australia. The wife’s father died in 2017, after the husband and wife separated. In relation to the wife’s interest in her father’s estate:
a.does the court in Singapore treat the wife’s interest in the estate as property to be divided between the husband and wife or otherwise take the interest into account as part of the property and/or spousal maintenance proceedings; and
b.what is the impact of the fact that the wife’s interest in her father’s estate arose after the husband and wife separated?
6.In her Statement of Claim for Divorce filed in Singapore, the wife makes a number of allegations about the husband’s conduct including but not limited to cross-dressing, confused sexual orientation, alcoholism, mental health issues, suicide attempts and family violence. In relation to the allegations:
a.are they relevant to property and/or spousal maintenance proceedings; and
b.is it possible that the allegations could cause the husband disadvantage or bias in the property and/or spousal maintenance proceedings?
7.What is the process for adjudicating the matrimonial proceedings in Singapore, including:
a.what is the procedure to obtain a divorce in Singapore, including:
i. what are the grounds that the wife must satisfy in order to obtain a divorce in Singapore; and
ii. what is the timeframe for such a divorce to be granted if not by consent?
b.does the divorce aspect of the proceedings need to be finalised prior to the other matters being determined, such as property and spousal maintenance? If so, what is the timeframe for the other matters being determined?
c.at what stage is the wife’s application in Singapore and what is the timeframe for property and/or spousal maintenance matters being finalised?
8.In the event that final property adjustment Orders and/or spousal maintenance orders are made by the Family Court of Australia (which has jurisdiction to make Orders in personam), are the orders enforceable in Singapore and, if so, what is the process involved in seeking an enforcement of Australian court orders in Singapore.
9.The husband applied for a stay of the proceedings in Singapore, which was unsuccessful. Why was the stay not granted? What is the test for determining appropriate forum in Singapore?
On behalf of the respondent, two broad objections were taken to the evidence of Ms H. First, it was said she was not an independent expert as the Family Law Rules required. Second, it was said that the report she produced was not in a form in which an expert report needed to be. Yet when I asked Mr Mawson QC whether it was proper for me to inform myself of Singaporean family law by consulting an international legal encyclopedia such as Martindale-Hubbell he said it was. I asked when, on an interlocutory hearing such as this, it was proper to consult a generic and unspecific legal encyclopedia, why it was also not proper to consult a report such as that given by Ms H, Mr Mawson said I could obtain information about Singaporean law from Mr H’s report yet I should not read her report on the application of that law to the facts of this case.
Proceeding with that cautionary contention in mind, I read the report of Ms H. Relevantly recorded, the following is a verbatim account of her evidence (with errors included) –
a)The Singapore Courts have the power to make orders in relation immovable property abroad including but not limited to the following, provided such properties are matrimonial assets. The Singapore Courts’ power to do so is set out in s 112(5) of the Women’s Charter (Cap 353) which provides as follows:
“(5) In particular, but without limiting the generality of subsections (3) and (4), the court may make any one or more of the following orders:
(a) an order for the sale of any matrimonial asset or any part thereof, and for the division, vesting or settlement of the proceeds;
(b) an order vesting any matrimonial asset owned by both parties jointly in both the parties in common in such shares as the court considers just and equitable;
(c) an order vesting any matrimonial asset or any part thereof in either party;
(d) an order for any matrimonial asset, or the sale proceeds thereof, to be vested in any person (including either party) to be held on trust for such period and on such terms as may be specified in the order;
(e) an order postponing the sale or vesting of any share in any matrimonial asset, or any part of such share, until such future date or until the occurrence of such future event or until the fulfilment of such condition as may be specified in the order;
(f) an order granting to either party, for such period and on such terms as the court thinks fit, the right personally to occupy the matrimonial home to the exclusion of the other party; and
(g) an order for the payment of a sum of money by one party to the other party.”
b)As such and pursuant to s 112(5) of the Women’s Charter, the Singapore Courts has the power to order:
a)a transfer of real property located in Australia from the parties’ joint names to one of the parties;
b) a sale of real property located in Australia;
c)a transfer of shareholdings or other investments held in Australia from one party to the other;
d) a sale of shareholdings or investments held in Australia; and
e)superannuation splitting orders, to transfer one party’s superannuation entitlements (or part thereof) to the other party’s superannuation fund.
c)From the above, it is clear the Singapore Courts has jurisdiction to make orders against immovable property situated outside of Singapore, which may include specific orders affecting the foreign immovable property or orders taking into account the value of the foreign immovable property in calculating the total shares of each party in dividing up the matrimonial assets.
d)An Order of Court pursuant to a divorce in Singapore are made in personam. The basis of in personam jurisdiction is set out at s 16 of the Supreme Court Judicature Act (Cap 322) which is set out below:
“16-(1) The High Court shall have jurisdiction to hear and try any action in personam where –
(a) The defendant is served with a writ of summons or any other originating summons-
(i) In Singapore in the manner prescribed by the Rules of Court or Family Justice Rules; or
(ii) Outside Singapore in the circumstances authorized by and in the manner prescribed by Rules of Court or Family Justice Rules; or
(b) The defendant submits to the jurisdiction of the High Court.”
e)The power of the Singapore Courts to order the division of matrimonial assets is in s 112(1) of the Women’s Charter. It is exercised in broad strokes “in such proportion as the court thinks just and equitable”. This legislative mandate has been described as giving the court “a wide discretion...in determining what is just and equitable in the circumstances of each case” (ATT v ATS [2012] 2 SLR 589). It seeks to even out financial inequities and recognizes the ideology of marriage as a co-operative partnership (NK v NL [2007] 3 SLR 743).
f)The process in which the division of matrimonial assets is determined is as follows:
a)Identify all matrimonial assets. Matrimonial assets is defined under s 112(10) of the Women’s Charter as:
(i)Any asset acquired before the marriage by one party or both parties to the marriage;
(A)Ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational, social or aesthetic purposes; or
(B)Which has been substantially improved during the marriage by the other party or by both parties to the marriage; and
(ii)Any other asset of any nature acquired the marriage by one party or both parties to the marriage.
But does not include any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or both parties to the marriage.
This is a fact-centric exercise. Common examples of assets which may be put up for division includes businesses, insurance, shares, car, savings, Super Fund monies and jewelleries.
b)Pool all of the assets together. Deduct debts/ liabilities owed and obtain a net value of the matrimonial assets.
c)Determine the operative date for determination of the net value of assets. There are four possible dates namely, i) the date of separation, ii) the date the writ for divorce was filed, iii) the date of separation and iv) the date of interim judgment. Parliament had not prescribed any of these four options as the appropriate cut-off date, but had left the choice to the court (Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157). However and generally, the starting or default position for the selection of the appropriate operative date is usually the date of interim judgment as the Interim Judgment formally ends the marital relationship of parties (ARY v ARX [2016] 2 SLR 686 at [31]).
d)Divide the assets. The Court of Appeal in NK v NL [2007] 3 SLR 743 explained that there are two (2) different methodologies possible in the division of matrimonial assets:
(i)Global assessment methodology : This is where the parties’ relative direct and indirect contributions to the marriage are assessed and applied to the entire pool of matrimonial assets, the direct financial contribution and indirect contributions are considered in totality for all matrimonial assets; and
(ii)Classification methodology: This is where each class of matrimonial asset is separately and analysed and apportioned according to the parties’ direct and indirect contributions to each asset class. The different classes include the matrimonial home, cash in bank accounts, shares and business assets. Contributions are considered in relation to each class of assets.
e)Neither methodology is superior to the other and the paramount objective of both is the same – to ensure a just and equitable division of the parties’ matrimonial assets. The only difference is that the classification methodology may be more appropriate if there are multiple classes of assets (NK v NL [2007] 3 SLR 743).
f)Apply the factors in s 112(2) of the Women’s Charter to decide on a just and equitable division. Determine how much each party financially contributed (direct contributions) towards the assets before considering the efforts in looking after the welfare of the family (indirect contributions).
g)The Court of Appeal in ANJ v ANK [2015] 4 SLR 1043 sets out a “structured” approach to “accord due and sufficient recognition to each party’s contribution towards the marriage without overcompensating or undercompensating a spouse’ indirect contributions – so that the outcome would.. lead to a just a equitable division”. This “structured” approach requires a court to engage in the following steps:
(i)Express as a ratio, the parties’ direct contributions relative to each other, having regard to the amount of financial contribution each party made towards the acquisition or improvement of the matrimonial assets;
(ii)Express as a second ratio, the parties’ indirect contributions relative to each other, having regard to both financial and non-financial contributions;
(iii)Derive the parties’ overall contributions relative to each other by taking an average of the two ratios above, keeping in mind that, depending on the circumstances of each case, the direct and indirect contributions may not be accorded more significance than the other.
h)In the event there is insufficient documentary evidence establishing exactly the person who made the contribution and in what value, the Singapore Courts would have to make a “rough and ready approximation” of the figure by exercising sound judgment, having regard to the inherent veracity of each party’s version of events (ANJ v ANK [2015] 4 SLR 1043).
i)However, the ANJ approach applies only to “Dual-income marriages”. In TNL v TNK and another appeal and another matter [2017] 1 SLR 609, while the Court of Appeal affirmed the ANJ approach and its applicability to “Dual-income marriages”, it casted doubt on the applicability of the approach in the context of “Single-income marriages” due to the inherent prejudice that would be caused to the homemaker as the Court is unlikely to give equal significance to both financial and non-financial contributions, as well as the inconsistency of the outcome with that of the court’s philosophy of marriage being an equal partnership.
j)Thereafter, the Singapore Courts would consider the practical ways to achieve the division and may make any one or more of the orders set out under s 112(5) of the Women’s Charter. For example, in consideration of a wife buying out the husband’s share of the matrimonial home, the husband gets to retain the other assets in return.
g)With regard to spousal maintenance during the court of any matrimonial proceedings or when granting or subsequent to the grant of a judgment of divorce, the power of the Singapore Courts to order maintenance is in s 113 of the Women’s Charter.
h)When making a decision on the amount of maintenance to be paid by a man to his wife or former wife, the Singapore Courts has a broad discretion, taking into account all the circumstances of the case including the factors in s 114(1) of the Women’s Charter. There is no set formula for determining how much spousal maintenance should be paid.
Some of the factors that the Singapore Courts will consider under s 114(1) of the Women’s Charter includes but is not limited to:
a)The salary and earning capacity of each party in the past, present and future;
b) The financial needs and obligations of each party in the future;
c)The standard of living of each party before the marriage broke down;
d) The age of both parties and the length of marriage.
i)The objective by the Singapore Courts is as far as practicable, to place parties in the financial position as if the marriage had not broken down (s 114(2) of the Women’s Charter) but at the same time take into account the new realities that flows from the marriage breakdown.
j)The types of maintenance orders that the Singapore Courts may order are:-
a) No maintenance order;
b) Nominal maintenance;
c) Lump sum maintenance; or
d) Periodic maintenance.
k)In assessing an appropriate maintenance sum, the Singapore Courts would start by calculating the wife’s financial needs, derived from particulars of her expenditure which is later on scaled down for reasonableness (Foo Ah Yan v Chiam Heng Chow [2012] SGCA 15).
Nevertheless, it must be highlighted that the court’s power to order maintenance is supplementary to its power to order division of matrimonial assets (ATE v ATD [2016] SGCA 2). Accordingly, if the wife gets a substantial share from the division of matrimonial assets, she may not be awarded spousal maintenance, or if any, only a minimal maintenance sum as the Singapore Courts, when making an order for division, usually include a portion to account for maintenance.
l)The Women’s Charter does not specifically state that it recognizes periods of cohabitation before the marriage as part of the marriage for the purposes of division of matrimonial assets. In dividing any matrimonial property, the court is focused on what is just and equitable with reference to a broad range of factors set out in s 112(2) of the Women’s Charter. The list of factors in s 112(2) of the Women’s Charter is not exhaustive insofar as the court is to have regard to “all the circumstances of the case”.
s 112(2)(g) Women’s Charter requires, without any restriction as to time period, the court to take into account “the giving of assistance or support by one party to the other party” as one of the relevant factors in determining a just and equitable division of the matrimonial assets.
In JAF v JAE [2016] 3 SLR 717, the Honourable Judicial Commissioner Ms Valerie Thean held that s 112(2)(g) is wide enough to encompass pre-marital contributions that enhance a consequent marriage. The relevant extracts are set out below:-
"20. A crucial question is whether the Charter allows for it. At the outset, it must be recognised that the list of factors set out in s 112(2) of the Charter is not exhaustive in so far as the court is to have regard to “all the circumstances of the case”. Section 112(2)(g) of the Charter requires, without any restriction as to time period, the court to take into account “the giving of assistance or support by one party to the other party” as one of the relevant factors in determining a just and equitable division of the matrimonial assets. I am of the view that the section is wide enough to encompass pre-marital contributions that enhance a consequent marriage.
21. Of relevance is Smith Brian Walker v Foo Moo Chye [2009] SGDC 256, where the wife had cohabited with the husband from 1990 until their marriage in 1996. In 1994, the wife helped the husband to secure a turnkey consultancy project which paid him a lump sum consultancy fee of S$350,000 and an overseas monthly allowance of RMB2,000 a month. The husband was the project consultant from July 1995 to 1997 and the wife said that this project had put the husband in good stead for his subsequent employment with other companies. The District Court found that the wife’s most significant contribution towards the marriage was in helping the husband to secure the consultancy project. This was in spite of the fact that the contribution had occurred prior to the marriage. On appeal, Steven ChongJC (as he when was) accepted the wife’s contribution as contribution made towards the marriage. This decision was referenced in the High Court decision of ACY v ACZ [2014] 2 SLR 1320 recently.”
m)With respect to spousal maintenance, the Singapore courts do not recognize the periods of cohabitation before marriage.
n)s 112(10) of the Women’s Charter provides that any asset acquired by one party by gift or inheritance at any time would not be a matrimonial asset unless it was used as the matrimonial home or was substantially improved during the marriage by the other party or by both parties to the marriage. This was reiterated in the case of TQN v TQO [2016] SGHCF 13.
o)Whilst the Singapore Courts are not prevented from considering the conduct of the parties in determining the division of matrimonial assets, such conduct by the party must be “both extreme and undisputed” for the courts to take it into consideration. In Chan Tin Sun v Fong Quay Sim [2015] SGCA 2, the wife systematically poisoned the husband with arsenic between 2004 to 2005. She was charged, convicted and imprisoned for a year.
p)As such, unless the Singapore Courts are of the view that the husband’s conduct are “both extreme and undisputed”, the wife's allegations about the husband’s conduct including but not limited to cross-dressing, confused sexual orientation, alcoholism, mental health issues, suicide attempts and family violence are:-
a)Not relevant to property and/or spousal maintenance proceedings; and
b) Do not cause the husband disadvantage or bias in the property and/or spousal maintenance proceedings.
q)In Singapore, divorce proceedings are conducted by the Singapore Courts in two (2) stages: -
a) Stage 1: the determination of the ground for divorce;
b) Stage 2: the ancillary matters, ie the division of matrimonial assets, maintenance and child welfare issues.
r)The Court’s inquiry into the facts is done by way of pleadings, affidavits of evidence-in-chief and cross-examination of parties at trial. The standard of proof that arises in divorce is the balance of probabilities.
s)The test for determining whether a spouse has behaved in such a way that the other spouse cannot reasonably be expected to live with him/her was laid down in the case of Wong Siew Boey v Lee Boon Fatt [1994] 1 SLR (R) 323 (“Wong Siew Boey”), which adopted the view that any conduct, active or passive, of the defendant provided it affected the plaintiff is relevant. This behavior need not be directed towards the plaintiff, but should affect the marriage.
t)The test in Wong Siew Boey is that the cumulative effect of the behavior, which in isolation may seem only part of the “ordinary wear and tear of family life” seen in the context of the “characters, personalities and behavior of the parties”, should lead the Singapore Courts to the conclusion that the plaintiff could not be expected to continue to live with the defendant. This is an objective test that requires the Court to take into account the subjective qualities of the plaintiff.
u)If the Court is satisfied that the Plaintiff has proven his claim on the irretrievable breakdown of the marriage (or a defendant in his/her counterclaim or both) and that it is just and reasonable to do so, the Court can grant the Plaintiff an interim judgment for divorce. If not, the court can dismiss the divorce application. This is provided under Section 95(2) of the Women’s Charter.
v)Unless there are exceptional circumstances, the ancillary matters will only be determined after Interim Judgment has been granted. Such ancillary matters include the fair and equitable division of matrimonial assets, maintenance for wife and children and children welfare issues, such as custody, care and control and access as abovementioned. Further affidavits will have to be filed before the Court hears the matter and determine the issues.
w)After Stage 1 is completed and Interim Judgment is granted, Stage 2 will commence with parties filing their respective Affidavit of assets and means (up to 2 affidavits each, with leave of court necessary for further affidavits to be filed). At this stage, discovery and interrogatories may be applied for before parties file their ancillary matters written submissions and the matter proceeds for final ancillary matter hearing. It is noted that as the matrimonial assets in the present case is worth S$5million and more, the proceedings would be transferred from the District Court level to the Family Division of the High Court at the time of the final ancillary matter hearing (Supreme Court Practice Directions (Amendment No. 5 of 2014)).
x)There is currently no reciprocal enforcement legislation providing for the enforcement of foreign ancillary orders for the division of property in Singapore (Tan Poh Beng v Choo Lee Mei [2014] 4 SLR 462 at [31]).
y)Though the Singapore Parliament was aware of this lacuna in the law, it has not plugged the gap by allowing foreign ancillary orders to be enforced in Singapore. Instead, it enacted Chapter 4A of Part X of the Women’s Charter to provide financial relief consequential on foreign matrimonial proceedings in 211. The observations of the Honourable Judicial Commissioner in Tan Poh Beng’s case, in relation to the gap in the law relating to enforcement of foreign ancillary orders and the enactment of Chapter 4A of Part X of the Women’s Charter is useful:
"31. It can be seen from the above material that Parliament was clearly cognizant of the gap in the law relating to the enforcement of foreign ancillary orders for the division of property in Singapore. It chose to plug this gap by not allowing such orders to be enforced here, but by enacting Ch 4A of the Women’s Charter. Chapter 4A allows the court to hear applications and make orders for financial relief in respect of foreign divorces (including the division of matrimonial property) if certain conditions are met, and it may hear an application for financial relief even if ancillary orders have already been made by a foreign court (s 121D(3)”.
z)The position in Singapore relating to the enforcement of foreign ancillary orders therefore remains to be governed by common law. In order to enforce a foreign ancillary order in Singapore, it may be necessary for the party seeking such enforcement to start a civil action in the Singapore Courts based on the foreign judgement (Hong Pian Tee v Les Placements Germain Gauthier Inc [2002] 1 SLR(R) 515 at [7] and [12]) or alternatively to file an Originating Summons application with the Singapore Courts mirroring the orders granted in the foreign judgment.
aa)The Commonwealth of Australia and its external territories is a reciprocating country for the purposes of MOREA [Maintenance Orders (Reciprocal Enforcement Act)] as regards maintenance orders other than affiliation orders and orders which provide for the payment of a lump sum. The Australian Capital Territory, Northern Territory of Australia, New South Wales, Victoria, Queensland, Southern Australia, Western Australia and Tasmania are territories of the Commonwealth of Australia which are included under MOFEA [Maintenance Orders (Facilities for Enforcement Act)].
bb)The law on stay of proceedings on the ground of forum non conveniens is well-settled. The Court of Appeal in TGT v TGU [2015] SGHCF 10 has affirmed that the principles enunciated by the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460 (“Spiliada”) apply. The Spiliada principles are applied in a two-stage test:-
a)Stage 1: The identification of the most appropriate forum for the trial of the action. At this stage, the onus is on the Applicant-Husband to establish that there is a clearly more appropriate forum than Singapore for the trial of the divorce action. If the Applicant-Husband succeeds, then a stay will ordinarily be granted.
b)Stage 2: At this stage, the burden shifts to the Respondent-Wife to persuade the court to refuse to grant the stay, if the Respondent-Wife can establish that she will be denied of substantial justice, if she is forced to pursue her claim in the more appropriate foreign court.
cc)In order to determine if there is clearly a more appropriate forum than Singapore, the Singapore Courts will have to determine the forum with which the dispute has the most real and substantial connection (ie connecting factors). Some of the relevant connecting factors that the Singapore Courts will consider in determining whether there is a more appropriate forum for Stage 1 of the Spiliada test includes but is not limited to:-
a)The domicile and residency of the parties;
b)Location of the parties’ assets;
c)Whether there is a concurrent action pending in another court (termed as lis alibi pendens);
d)Location of witnesses;
e)The law governing the relevant issues;
f)The country where most of the marriage was lived out; and how readily foreign judgments are recognized.
dd)This list is not exhaustive. The weight to be attached to the various factors relevant to any given case also varies from one case to another.
ee)We are unable to provide an opinion as to why the stay of proceedings in Singapore was not granted. However, from our understanding, the Honourable District Judge did, during the hearing, questioned why divorce proceedings in the Australia was not commenced earlier. He also questioned the husband’s application in Australia when he acknowledges that Singapore was the proper forum to deal with the children issues given that the children are in Singapore. We assumed these matters played a persuasive role at Stage 1 of the Spiliada test.
ff)Therefore, if the parties are divorced in the Australian Family Court, the Singapore Courts would recognize the foreign divorce decree as a matter of international comity and where recognition of the divorce accords with public policy.
gg)Further, where one party to the marriage had a significant connection (eg domicile, habitual residence etc) to the foreign jurisdiction which granted the divorce, this was sufficient, without more, to prove validity of the foreign divorce and such divorce should be recognized in Singapore (Ho Ah Chye v Hsinchieh Hsu Irene [1994] 1 SLR(R) 485. In this case, since both parties and their children are all Australian citizens, it is highly likely that the Singapore Courts would recognize the divorce decree made by the Australian Family Court.
hh)If so, the effect of this is that there would be no marriage for a Singapore Court to dissolve under s 95 of the Women’s Charter.
As mentioned above, based on the report by Ms H, the applicant’s solicitors followed up certain answers and posed various questions for clarification or elaboration. The following is a verbatim account of the responses to those follow-up questions as were given by Ms H in the 3 December 2019 letter (with errors included) –
a)Ultimately, the Singapore Courts do have the discretion to make orders in relation to foreign properties/ assets (both movable and immovable) and to take them into consideration for the division of matrimonial assets.
b)However, in the event evidence is presented to the Singapore Courts that there may be issues with the registration and/or enforceability of the Singapore orders in the Australia Family Court, the Singapore Courts may not be willing or may be slow to order the transfer or split of assets/ real properties located in Australia in specie.
c)Once the Singapore Court order is registered in the Australia Family Court, it can be enforced as though it was an order of the Australian Family Court. As such, an enforcement application would need to be subsequently be filed in the Australia Family Courts.
d)The Singapore Courts will determine the value of the pool of matrimonial assets based on all matrimonial assets, whether located in Singapore or overseas. In the event that there are only foreign matrimonial assets or matrimonial properties, the Singapore Courts will still consider and include the value of such overseas assets in the division, as long as it falls within the definition of a “matrimonial asset” under s 112(10) of the Women’s Charter. We reiterate Paragraphs 6 to 8 of our letter of 24th October 2019 in this respect.
e)Generally, the Singapore Courts would only include the value of the superannuation funds accumulated after the date of marriage in the pool of matrimonial assets.
f)However, given that superannuation is governed by the law in Australia, any order made on splitting the same would have difficulty in enforcement, and as such, the Singapore Courts may be slow to make any such orders.
g)We reiterate that for the purposes of determining the value of the shares to be included in the matrimonial pool, the Singapore Courts would only look at the value of the shares purchased/ acquired after the date of marriage.
Without descending to the precise details of the information about Singaporean law as set out in those two sources by Ms H, several things must be said about the interaction between Singaporean family law and its application to the facts of this case. In no special order those matters include the following –
a)the procedure set out in s 112(10) of the Singaporean Women’s Charter, as recorded in paragraph 11 of the first report of Ms H has certain superficial parallels to s 79(4) of the Family Law Act yet no equivalent to s 75(2) appears to be relevant in Singapore whereas in Australia, s 75(2) factors are critical to property division cases;
b)in Singapore s 112(2) of the Women’s Charter has a parallel to s 79 of the Family Law Act in that a threshold issue is whether the division is just and equitable, but under s 79(4) of the Family Law Act the fact-specific enquiry is significantly more sophisticated and intricate;
c)s 114(2) of the Women’s Charter has at its aim placing the parties in the financial position as if the marriage had not broken down whereas that is not a legislative imperative under the Family Law Act;
d)periods of marriage as well as periods of cohabitation unmarried are taken into account in Australian family law, a seemingly different regime to that encompassed by s 112(2) of the Women’s Charter, as explained at paragraph 19 of the Ms H first report;
e)the observations in paragraphs 30, 31 and 32 of the Ms H report about extreme and undisputed conduct is not the law of Australia, as I surveyed in Keskin & Keskin.[1]
[1] [2019] FamCA 384.
Temporarily interrupting the observations about Singaporean family law and its parallels and differences to Australian family law, it is utile to point up at this juncture how, since Kennon & Kennon,[2] family violence has been approached in property division cases. In Keskin, I traced the evolution of the learning and recorded the position (at length) in these terms –
[2] (1997) 22 Fam LR 1.
28.The relevance of family violence (or “domestic violence” as it was termed in the 1997 Full Court decision of In the Marriage of Kennon)[3] has deep roots in family law jurisprudence concerning the division of assets under s 79 of the Family Law Act. Soon after the Family Law Act commenced operation on 5 January 1976, early decisions on point emerged such as the decisions in In the Marriage of Soblusky[4] and In the Marriage of Ferguson.[5] In Soblusky the Full Court considered the relevance or otherwise of the conduct of the parties including violent conduct in the division of assets. Yet in Ferguson the Full Court held that conduct causing the breakdown of the marriage was not relevant in a consideration of the administration of the financial provisions of the Family Law Act. However, in that case Watson and Wood SJJ held that conduct of a party to the marriage was relevant if the conduct had produced consequences which diminished or destroyed the property of the parties or the effect of the conduct resulted in the value of the property being diminished. Further, in Barkley & Barkley[6] Carmichael J was concerned with the economic consequences of the husband in that case where, immediately prior to separation, the husband assaulted the wife causing her total deafness in one ear.
[3] (1997) 22 Fam LR 1.
[4] (1976) 2 Fam LR 11,528.
[5] (1978) 4 Fam LR 312.
[6] (1976) 1 Fam LR 11,554.
29.For some time the preponderance of authority favoured the view that domestic violence was relevant to a claim under s 79 of the Family Law Act only where that violence was causally linked to a direct financial consequence. In 1995 the learning ebbed in a different direction with the decision in In the Marriage of Waters & Jurek.[7] That case concerned a 22 year marriage. Judgment was given on 15 September 1995. Two months later, a different Full Court in In the Marriage of Doherty[8] decided again the relevance of domestic violence in a s 79 claim. It must be said that Fogarty and Baker JJ were members of the Full Court in Waters as well as in Doherty. In Doherty, Baker J held and Forgarty and Hannon JJ agreed that the husband’s domestic violence caused the wife’s contributions as home make to increase and the husband’s contributions to diminish.
[7] (1995) 20 Fam LR 190.
[8] (1995) 20 Fam LR 137.
30.In Kennon the plurality (at 24) referred to a marked change in perceptions, both legal and social, about domestic violence and its impact. The plurality said it was appropriate to give effect to those changed perceptions. The plurality was keen to prevent a floodgates argument so it spoke of the circumstances in which domestic violence may be relevant as being exceptional. Fogarty and Lindenmayer JJ expressed the position in the following terms –
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
31. The court went on to say the following –
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson ) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).
32.Thus, at an evidentiary level, three matters needed to be proved by the person asserting the existence of family violence, or as it was then called, domestic violence. First, the violence had to be shown as having occurred during the course of the marriage. Next, it had to be shown that it had a discernible impact on the contributions of the other party. Finally, it had to be shown how the court was to quantify a party’s capacity to contribute.
33.Early hesitations about the impact of domestic violence upon the assessment of contributions shifted, as were apparent in Soblusky and Ferguson, to the expressions in Kennon about it being exceptional to take into account domestic violence in any assessment of contributions. By 2003 the Full Court stated there was “no doubt” that domestic violence may be a relevant factor in assessing contribution. That emerged from S & S[9] (Kay, May & Carter JJ). Likewise, in In the Marriage of Hill,[10] a differently constituted Full Court adopted the Kennon formulation and concluded that no evidence supported the trial judge’s reduction in the assessment of the wife’s contributions on account of her conduct or behaviour. The Full Court highlighted the need for precise evidence about the role each party played in the course of the marriage and the contributions each made to the marriage.
[9] [2003] FamCA 905.
[10] (2005) 32 Fam LR 552.
34.It is now accepted beyond argument that violence perpetrated by one party to the other party of the marriage may be taken into account in assessing contributions. So far as the evidentiary burden in proving domestic violence is concerned, s 140(2)(c) of the Evidence Act provides that the gravity of the matters alleged may be taken into account in deciding whether the court is satisfied that the allegation has been proven. In Whelan & Whelan,[11] Watts J adopted that approach and expressed it helpfully in the following way –
[11] [2010] FamCA 530.
The wife asserts incidences of violence perpetrated by the husband against her. In a civil proceeding, a court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities (s 140(1) Evidence Act 1995 (Cth)).
The gravity of the matters alleged may be taken into account in deciding whether the court is so satisfied (s 140(2)(c) Evidence Act).
It is said clear or cogent proof is necessary where serious matters are alleged. That is not a matter which goes to the standard of proof but rather, is said to reflect a convention or perception that partners in a relationship do not ordinarily engage in violent behaviour and a court should not lightly find that they do (see Briginshaw v Briginshaw (1938) 60 CLR 336). It is not, however, inherently unlikely that a matter coming to this court, will involve family violence. In fact, a study in 2003 by the AIFS indicated that violence was a feature in 79 percent of the cases brought in the Family court.
In Neat Holdings Pty Ltd v Karajon Holdings Pty Ltd (1992) 110 ALR 449), the High Court warned that a “clear and cogent” evidence test was likely to be unhelpful and even misleading.
The Full Court in Kennon & Kennon (1997) FLC 92-757 indicated that a course of violent conduct could be taken into account in property proceedings where it was demonstrated to have had a significant adverse impact upon a party's contribution to the marriage or to put it another way, to have made his or her contributions significantly more arduous than they ought to have been.
Once findings of fact are made about one party’s conduct, it may or may not be possible to make findings about the physical or psychological effect of that conduct on the other party. Whether or not that is possible in order to establish a “Kennon” claim, the court needs to make some finding about the effect of the conduct of one party upon the contributions made by the other.
35.The need for a link to be shown between the domestic violence alleged and the impact of that violence on the victim’s contributions was stated in Spence & Spence.[12]
[12] [2008] FamCA 263.
36.In Gillard & Gillard[13] Watts J addressed contentions of the wife to the effect that her contributions were made significantly more arduous by reason of family violence. His Honour cited Kennon as well as S & S as well as s 140(2)(c) of the Evidence Act for the evidentiary standard. In percentage terms, in Gillard Watts J referred to the decision of Collier J in Ismail v Elfar[14] where non-particularised acts of family violence were alleged in a long marriage and where Collier J held that the family violence could not have impacted in a vastly significant way so a two percent adjustment was made.
[13] [2016] FamCA 841.
[14] [2011] FamCA 716.
37.In 2016 the Full Court again examined the evidence led at trial about the impact that family violence allegedly had upon the wife’s contributions. In Maine & Maine[15] the court held as follows –
[15] (2016) 56 Fam LR 500.
Rather, established principles by reference to the Full Court decision in Kennon, and the cases which have followed it, required of his Honour findings in respect of evidence that addressed specifically, as Kennon suggests is required, the impact that the violence had upon the wife’s contributions including, significantly (but not exclusively), her contributions referenced to s 79(4)(c).
38.As is frequently the case in litigation where family violence is alleged, the trial judge is required to determine whether the evidence of family violence is probative and reliable. So long as the evidence is probative it will usually be admissible. Of the evidentiary issues, in Britt v Britt,[16] the Full Court said the following –
[16] (2017) 56 Fam LR 526.
Thus, evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible it must lack any probative value.
As the above passage makes clear, s 55 of the Evidence Act proceeds on the basis that a trial judge cannot take the credibility, or lack thereof, of a witness into account when determining the admissibility of evidence. Any issue of credit is taken into account later, when considering the weight or importance the evidence should be given.
Therefore, in determining the admissibility of the proposed evidence set out above, the primary judge was obliged to consider whether the evidence could rationally affect the assessment of the existence of family violence, which led to the appellant’s contributions becoming more onerous. If the evidence could do so — that is, if it was not “inherently incredible, fanciful or preposterous”— it should have been admitted.
In this regard it is important to note that the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence. This is particularly so where the court is asked to draw an inference from all of the evidence, that is to say, all of the circumstances of the matter. This is because one piece of evidence may affect the probative value of another and a number of pieces of evidence when considered together may have a probative value greater than if each is considered individually.
Evidence is capable of being relevant to an issue if it puts other evidence into context, such as explaining the nature of the relationship in which other events occurred.
39.As to the precise nature of the evidence of family violence, aside from the standard to be proved, two decisions have addressed important evidentiary matters. It will be recalled that in S & S (also called Spagnardi & Spagnardi), the Full Court spoke of three separate matters in respect of which the court needed to be satisfied, those being –
a) the incidence of domestic violence;
b)the effect of domestic violence; and
c)the evidence to enable the court to quantify the effect of the violence upon the parties’ capacity to contribute as defined in s 79(4).
40.In Britt v Britt the Full Court held that the court can infer from appropriate evidence that a nexus existed between the conduct and the relevant contributions. Thus, where direct evidence may not be available from which the relevant nexus may be drawn, based on other evidence an inference about the nexus may be drawn. And based on the decision in Amador & Amador,[17] it is not necessary for the evidence of the person asserting the existence of family violence to be corroborated before being accepted.
[17] (2009) 43 Fam LR 268.
In Singapore, divorce is granted based on the irretrievable breakdown of the marriage, as is the case under Australian law. However, unlike under Australian law where separation for not less than 12 months is shown, s 95(3) of the Women’s Charter involves proof of one of five matters demonstrating the irretrievable breakdown of the marriage. Paragraph 40 of the Ms H report reveals that both an objective and subjective test is involved in ascertaining whether the plaintiff could be expected to continue to live with the defendant. That is not Australian law requiring 12 months’ separation based on irretrievable breakdown of marriage.
Ancillary orders for the purposes of Singaporean law pronounced in a foreign court (say, in this court) are enforceable under common law principles, according to paragraph 59 of the first report by Ms H. That may mean that a civil proceeding must be commenced. It seems that maintenance orders fall into a different category.
Issues of forum non-conveniens are addressed in Singapore by application of the test espoused in Spiliada Maritime Corporation v Cansulex Ltd.[18] In Australia the decisions of the High Court in Voth v Manildra Flour Mills Pty Ltd[19] and CSR Ltd v Cigna Insurance Australia Ltd[20] have applied a different test.
[18] [1987] AC 460.
[19] (1990) 171 CLR 538.
[20] (1997) 189 CLR 345.
The information given by Ms H was most helpful in this case and I have been assiduous to avoid reading those portions of the reports (where appearing in two letters) that applied the Singaporean law to the facts of this case. After all, that is my task. That said, several critically important matters arose from a better understanding of Singaporean family law compared to Australian family law. They include –
a)obtaining a divorce order in Singapore is more complex than it is in Australia;
b)periods of pre-marital cohabitation in Singapore may be treated differently than they would be under the Family Law Act;
c)the considerations in which the Singaporean courts engage in dividing property seem to be less intricate than are the considerations under s 79(4) of the Family Law Act;
d)under Singaporean law, no equivalent exists to the extensive array of matters that a court must consider under s 75(2) of the Family Law Act;
e)Singaporean courts have power to divide assets wherever located;
f)Singaporean courts have power to split superannuation without the complexities that attend superannuation splitting orders under the Family Law Act; and
g)an order of this court is amenable to enforcement in Singapore but in order to do so, except in relation to a maintenance order, a separate civil proceeding must be commenced instead of the precise order being registered and enforced as would a foreign judgment be enforced in Australia under the Foreign Judgments Act.
The point of remarkable significance in this case is that no assets exist in Singapore beyond the respondent’s start-up business and an unknown sum in her bank account. Plus, the respondent and the children have no real connection to Singapore.
It may seem peculiar that the respondent wishes to press ahead with her litigation in Singapore given that the property over which any real dispute will emerge is in Australia. In that category is the Suburb C home, the respondent’s inheritance, shares, and cash with the majority of witnesses likely to be Australian.
Submissions
In this case both parties filed and served written submissions and counsel addressed them extensively on 16 January 2020. On behalf of the applicant, in written submissions it was contended as follows –
Considering those matters insofar as they are relevant to the facts of this case, Australia is the only forum that can provide for a complete resolution of the property dispute between the parties:
a)the parties were in a relationship for 17 years and married for two years, before separating. In Australian property proceedings, the court will consider the totality of the parties' property at the time of the hearing irrespective of when and how that property was acquired. The parties' contributions throughout the course of their lengthy relationship will be given proper consideration;
b)to the contrary, the Singapore court will only consider the parties’ “matrimonial assets”. The Singapore court will therefore not make orders in relation to the wife's significant inheritance of approximately $5 million, nor will they make orders in relation to the parties’ investments and superannuation in Australia which were all acquired prior to the parties' marriage but during the course of their longstanding relationship. Australia is the only forum that is able to make orders in relation to those assets, which form the majority of the parties’ assets. Importantly, Australia is the only forum that is able to make orders in relation to all of the parties’ property;
c)a stay of the Australian property proceedings would leave a significant lacuna, whereby only a small proportion of the parties’ assets would be capable of division. Australia is the only forum that is able to deal with the balance of the assets not capable of division in Singapore;
d)a company controlled by the wife’s family has lodged a caveat on the Suburb C property, being the parties’ former family home. The alleged loan which the caveat seeks to secure is disputed by the husband and the equity in the Suburb C property is therefore in dispute. While the evidence suggests that the court in Singapore has the power to make in personam orders against the husband and wife in relation to their entitlement in the Suburb C property, the court in Singapore cannot make any order in relation to the caveat lodged on the title to the Australian property by a third party company incorporated and based in Australia and not a party to the Singapore proceedings. That issue can only be resolved in Australia. Australia is therefore the only forum that can fully resolve all issues in relation to the Suburb C property.
It was said on behalf of the applicant that the parties’ primary connection was with Australia, not Singapore. Seven factual propositions underpinned that contention. They were –
a)the parties lived together in Australia between 1997 and 2014, save for a six month period when they lived in the UK;
b) they married in Australia;
c) their three children were all born in Australia.
d)the parties and their three children are all Australian citizens, with the wife and children’s ability to remain living in Singapore beyond October 2020 not known;
e)almost the entirety of the parties’ asset pool is Australian based property, including their matrimonial home (the Suburb C property), investments, superannuation and the wife’s interest in her late father’s estate. There is no property in Singapore, save for everyday bank accounts and the wife’s business;
f)all of the key issues in dispute between the parties are Australian based disputes, including the value of the Suburb C property, the issue of the caveat lodged on the Suburb C property by a company controlled by the wife’s family and incorporated and based in Australia and the value of the wife’s interest in her father’s estate. All of the witnesses relevant to those issues are based in Australia, and it may even be necessary for the caveator to be joined to the Australian proceedings; and
g)the wife herself initiated discussions with the husband about property matters using Australian lawyers and invoking Australian principles of full and frank disclosure. The wife, through her lawyer, encouraged the husband to seek independent legal advice from a family law specialist. It is difficult to see how she now asserts that Australia is a clearly inappropriate forum.
While recognising that litigation was first commenced in Singapore, the applicant submitted that the notion of being first in time was not determinative. In support, the applicant relied on several propositions. He said –
a)the Full Court stated in Teo & Guan [2015] FamCAFC 94 that while the order in which the proceedings were commenced is a factor to be considered it “is not a factor that would ordinarily attract much, if any weight, when the second proceedings are commenced relatively soon after the first”;
b)the Australian proceeding was issued almost immediately after the husband received notice about the Singapore proceeding and there was little in this case that turned on the commencement of the proceeding;
c)the circumstances of the wife issuing a proceeding in Singapore without notice to the husband, after herself initiating property discussions in Australia through Australian lawyers and being put on notice that the husband may issue a proceeding in Australia, undermined any argument she may make in relation to the fact that the Singapore proceeding was commenced first in time;
d)the fact that the issue of which proceeding was commenced first in time was not determinative as was highlighted by Macmillan J in Hughes & Hughes [2014] FamCA 12, where at [22] her Honour set out a number of cases where a stay of the Australian proceeding was refused despite the Australian proceeding having been commenced second in time;
e)to date, the focus of the Singapore proceeding had been on the divorce. Little action had been taken in relation to substantive property matters. It was not until the divorce was determined that the “ancillary matters”, including the wife's property application, will progress. The property proceeding in Singapore has therefore not advanced in any substantive way. This is not a case where the husband is seeking to commence a new property proceeding in circumstances where a property proceeding in another jurisdiction is already well underway;
f)the wife is readily able to fully participate in the Australian proceeding. She has Australian-based lawyers who she has engaged since at least August 2018, well prior to issuing a proceeding in Singapore. The wife speaks English and will have no issues with understanding the legal issues in Australia, given her significant connection with Australia. The wife's mother and other extended family is based in Australia and she regularly travels to Australia to spend time with them. She can likewise travel to Australia for any court hearings; and
g)in the circumstances, it could not be said that Australia is a clearly inappropriate forum.
The applicant seemed to recognise the possibility that an anti-suit injunction may be refused with the consequence that parallel ligation would be on foot in two countries. To that the applicant submitted –
a)there was nothing inherently offensive about bifurcated and parallel proceedings. The fact that a refusal to grant a stay would result in bifurcated and/or parallel proceedings is not a sufficient reason in and of itself to grant a stay;
b)in Kent & Kent [2017] FamCAFC 157 the trial judge refused the husband’s application to stay property proceedings in Australia, where there were also extant proceedings in Papua New Guinea. The Australian proceedings were issued after the overseas proceedings. The refusal to grant a stay was upheld on appeal (although the appeal was allowed in relation to a different matter, being an anti-suit injunction). On appeal, the husband submitted that the failure to grant a stay failed to take into account the fact that there would be potentially for parallel proceedings. In rejecting that submission, the Full Court referred to the comments of Brennan CJ in Henry[21] as follows:
“it is not helpful, in my respectful opinion, to inquire whether there are proceedings on foot elsewhere and then, perceiving that duplication of the proceedings in the selected forum would be undesirable, hold that the selected forum is clearly inappropriate. To adopt that line of reasoning would be to conclude that, as between two fora possessed of jurisdiction to determine the same matter, the forum in which the proceedings are not first brought is a clearly inappropriate forum. It is of the nature of the problem that two fora have jurisdiction to determine the same matter in dispute, but the Voth test requires that the focus be on the advantages and disadvantages of proceedings in the selected forum. Of course, there may be cases where proceedings instituted in the selected forum are oppressive in the relevant sense because the institution of those proceedings was delayed until the proceedings in the foreign forum were nearing completion. But that is a different case from one in which the jurisdictions of two fora have been invoked by parties because one of them favours the exercise of the jurisdiction of one forum, the other of whom favours the exercise of the jurisdiction of the other.”
c)in Lan & Hao [2017] FamCAFC 175, there were extant property proceedings in Australia and in China. The primary judge was asked to determine the wife’s application to restrain the husband from taking further action in China and the husband’s application to restrain the wife taking further action in Australia. Both applications failed, resulting in parallel property proceedings in both China and Australia. The wife unsuccessfully appealed in relation to the trial judge’s refusal to grant an injunction restraining the husband from taking further action in China, and the primary judge’s decision was upheld;
d)in Skinner,[22] Murphy J observed that that although there can be “strong reasons for preventing the bifurcation of proceedings” there is “nothing as a matter of principle that prevents the bifurcation of proceedings emanating from a single controversy with part of the proceedings being heard in one country and another part in another country, assuming that doing so causes no offence to international comity”. In that case, his Honour refused to stay property proceedings in Australia (albeit that he did stay other aspects of the Australian proceedings). This resulted in property matters being heard in Australia and divorce/parenting/spousal maintenance and child support being heard in Spain;
e)in White & Temple [2014] FamCA 396, Cronin J refused to grant a stay of Australian property, spousal maintenance and child support proceedings even though it resulted in bifurcated proceedings given that parenting matters were being determined in the United States;
f)in Kemeny & Kemeny [1998] FamCA 34, the Full Court at [5.3.5] noted that there was “nothing inherently offensive in the notion that parties to a marriage might be required to conduct their child residence and contact matters in one country whilst being at liberty to conduct their financial disputes in another”; and
g)in Garrett & Cowell [2007] FamCA 778, Moore J refused the husband’s application for a stay of property proceedings in Australia notwithstanding that there were extant property proceedings in Switzerland. The decision resulted in parallel property proceedings in Australia and Switzerland.
[21] (1996) 185 CLR 571.
[22] [2010] FamCA 329.
The applicant sought orders refusing the respondent’s stay application.
So far as the anti-suit injunction was concerned, the applicant addressed CSR (but not Voth). Factually, the applicant contended –
a)the controversy between the parties in relation to property matters is the same in both Australia and Singapore. That is, the controversy is the division of the parties’ property following the breakdown of their marriage;
b)for the reasons advanced in relation to the stay of Australian proceedings, Australia is the only jurisdiction that is able to provide complete relief. Australia is the only jurisdiction able to divide all of the parties’ property. There is a significant lacuna in the Singapore proceedings, in that Singapore will not divide all of the parties’ property. Significantly, Singapore will not have regard to the wife’s interest in her late father’s estate valued at approximately $5 million nor will it have regard to the parties’ assets acquired prior to their marriage but during their lengthy relationship, such as superannuation and other investments; and
c)importantly, there is nothing to be gained in the Singapore proceedings in relation to property matters. All of the relief available in Singapore in relation to property matters is available in Australia. There is no juridical advantage to the wife in Singapore, in that Singapore does not give rise to additional or other remedies (contrary to the facts in Lan & Hao).
He said the Singaporean proceeding was vexatious and oppressive and the respondent should be restrained from taking further action pursuant to it.
The respondent in her submissions submitted it was vexatious and oppressive for the applicant to permit this proceeding to continue.
In the respondent’s written submissions, considerable store was placed in the notion that principles of comity required this court to bow out of this litigation. It is important to observe that the doctrine of comity may be at risk of misuse in the parties’ submissions in this case.
The act of state doctrine,[23] often being expressed in terms of non-justiciability, is founded primarily on a view as to the comity of nations rather than on concerns about giving offence to the foreign sovereign, a point made by the learned authors in the 2020 edition of Nygh’s Conflict of Laws in Australia.[24] The decision in Kuwait Airways Corporation v Iraqi Airways Co (No 3)[25] supports that proposition. The act of state doctrine has recently been the subject of doubt by Lord Mance in Belhaj v Straw.[26] There his Lordship held as follows –
Public policy dominates one of the most difficult and most perplexing topics which, in the field of foreign affairs, may face the municipal judge in England: the doctrine of the foreign act of state displays in every respect such uncertainty and confusion and rests on so slippery a basis that its application becomes a matter of speculation.
[23] Richard Garnett, Foreign States and Australian Courts (2005) 29(3) Melbourne University Law Review 704.
[24] Martin Davies, Andrew Bell, Paul Brereton and Michael Douglas, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 10th ed, 2020) 275 [10.70].
[25] [2001] 1 All ER (Comm) 557.
[26] [2017] AC 964.
But it is erroneous to attribute to the notion of judicial comity some amorphous doctrine. As the learned author of the 2019 edition of The Anti-Suit Injunction points out, in ordinary language the word “comity” refers to mutual respect or civility. In British Airways Board v Laker Airways Ltd[27] Sir John Donaldson MR said that judicial comity “is shorthand for good neighbourliness, common courtesy and mutual respect between those who labour in adjoining judicial vineyards”. As Thomas Raphael QC pointed out in The Anti-Suit Injunction[28] (at paragraph 1.27) comity goes beyond the principles of international law and includes more general imperatives of international public policy which do not amount to rules of law.
[27] [1984] QB 142.
[28] Thomas Raphael QC, The Anti-Suit Injunction (Oxford University Press, 2nd ed, 2019).
In short, care must be taken not to go too far in citing notions of judicial comity as a basis for concluding that a proceeding in largely similar form is before the courts of one country and therefore it is impossible for the same broadly similar litigation to be conducted before a court of this country.
Returning to the parties’ submissions, it is next relevant to address the written submissions of the respondent. In those submissions, the respondent argued that this court was the clearly inappropriate forum. She argued that the court in Singapore had jurisdiction to deal with all aspects of the litigation between the parties and that having litigation in Australia on foot will involve significant expense and inconvenience. She said a risk existed that if the Singapore litigation continues and the Australian litigation also continues inconsistent decisions will emerge.
In the respondent’s submissions she argued that the litigation in this court is vexatious and oppressive within the observations of CSR. In developing that submission the respondent argued that the litigation in Singapore is likely to provide a complete resolution of all matters between the parties. While not citing the decision in Bank of Tokyo Ltd v Karoon[29] the respondent seemed to invoke the observations of the House of Lords in that case where it was held –
On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Company, if ‘complete relief’ is available in the local proceedings.
[29] [1987] AC 45.
That said, in Henry v Henry[30] the High Court intimated that cases of pure concurrent litigation in different forums between the same parties in which complete relief may be had in both forums may amount to vexation and oppression. Similar comments emerge from the decision in United Pacific Finance Pty Ltd v Tarrant[31] and in Telesto Investments Ltd v UBS AG.[32]
[30] (1996) 185 CLR 571.
[31] [2009] NSWSC 630.
[32] (2012) 262 FLR 119.
Accordingly, it seemed to me to be necessary to examine whether all issues could be ventilated in both the court in Singapore as well as in this court before it was possible to state whether “pure concurrent litigation in different forums exists” such that litigating both proceedings was vexatious and oppressive. According to Ms H the Singapore court has power to make in personam orders in relation to all assets constituting the property in this case, possibly with the exception of the inheritance of the half interest in the respondent’s late father’s estate. Further, while Singapore’s legislation governing family law disputes involves a consideration of similar yet not identical concepts, in the assessment of the parties’ contributions (direct, indirect, financial and non-financial) s 79(4) of the Family Law Act seems to be more exhaustive than its Singaporean counterpart, especially in relation to s 79(4) and the incorporation of s 75(2) factors. That position is enhanced by the fact that any order that may be made by this court (assuming the respondent’s stay application is refused) can only be enforced by separate proceeding. Conversely, this court has powers to enable a party to compel compliance with its orders. That is of particular relevance in relation to the Suburb C property because sale documentation will in all likelihood be involved and if one party, for example, refuses to execute relevant transactional documentation, this court can request a registrar to sign the necessary documentation.
It is relevant to observe that overwhelmingly the property relevant to this dispute is located in Australia. Further, the majority of witnesses are likely to be Australian.
In Nygh,[33] the learned authors state that it will be a significant factor favouring a particular jurisdiction if that jurisdiction (here, Australia) can effectively deal with a particular asset such as immovable property. The decision in Pagliotti v Hartner[34] is given in support.
[33] Op cit, paragraph 27.28.
[34] (2009) 41 Fam LR 41.
Applicable legal principles
This was a contested interlocutory application necessarily bereft of the detail and depth of examination of fact and law that will be undertaken at the trial of this proceeding. Decisions of courts that bind me have spoken at length of the undesirability of judges, on the hearing of interlocutory applications, making findings of fact.
In Marvel v Marvel[35] the Full Court addressed the complications that presented themselves when on an interim hearing the court is called upon to make findings of fact on disputed evidence. The Full Court embraced the cautioning remark sounded in SS & AH[36] where it was held that findings made at an interim hearing should be made with great circumspection.
[35] (2010) 43 Fam LR 348.
[36] [2010] FamCAFC 13.
In Deiter v Deiter,[37]a differently constituted Full Court held that interim hearings are necessarily truncated hearings and a court must be cautious to avoid being drawn into contentious trial issues. Instead, the court should look for agreed issues, care arrangements prior to separation, current circumstances of the parties and the children and the parties’ respective proposals.
[37] [2011] FamCAFC 82.
In Eaby & Speelman[38] the Full Court held that frequently the judge must do the best he or she can by weighing the probability of competing claims and assessing the likely impact on the children in the event that a controversial assertion is relied upon or rejected. The decision in Banks & Banks[39] was to like effect as was the decision in Salah & Salah.[40]
[38] [2015] FamCAFC 104.
[39] [2015] FamCAFC 36.
[40] (2016) 56 Fam LR 299.
In Redmond & Redmond[41] the Full Court held that guidance is often provided by independent expert evidence, even where on an interim contested hearing significant disputes exist in relation to the evidence on which reliance will be placed.
[41] [2014] FamCAFC 155.
Applying that statement to the facts of this case, I have proceeded on the basis on this application that any findings of fact have been made with great circumspection and only for the purposes of deciding this interlocutory application.
The anti-suit injunction
In Hillam & Barret,[42] between [40] to [64] I undertook an extensive examination of the authorities relevant to the principles that apply to the grant of an anti-suit injunction. While lengthy, it is utile to re-state those principles here. There I said the following –
[42] [2019] FamCA 193.
40.The legislative power to make an order in the nature of an anti‑suit injunction has been said to be reposed in s 34 of the Family Law Act or in the inherent jurisdiction of this court conferring upon it power to make necessary and appropriate orders to avoid injustice. That view was espoused in Hunt & Hunt.[43] In CSR Ltd v Cigna Insurance Australia Ltd[44] the High Court of Australia held (eight years earlier) that the power to grant an anti‑suit injunction is not restricted to confined or closed categories and is to be exercised when the administration of justice requires or where such an order is necessary for the protection of the court’s own proceedings or process.
[43] [2005] FamCA 849.
[44] (1997) 189 CLR 345
41.It seemed to me that two main issues fell for consideration in my determination of the husband’s application for an anti‑suit injunction. The first related to this court’s power to make such an order. The second was whether the jurisdiction should be exercised in the circumstances of this case.
42.In response the first, an abundance of authority exists to the effect that it is within power for this court to restrain a party to a proceeding in this court from conducting a proceeding raising similar issues in another court. An early illustration is the decision of the Full Court of the Family Court In the Marriage of Gillies.[45] Like this case, that case concerned an application to restrain the continuation (nor the commencement) of a proceeding in the Supreme Court of New South Wales. In separate reasons, each member of the Full Court dismissed the appeal from Hogan J who had granted the injunction restraining the continuation of the Supreme Court litigation. On appeal Evatt CJ held that this court as well as the Supreme Court of New South Wales had power to prevent the abuse of process that could arise from such a circumstance by either staying its own proceeding or by restraining a party to its own proceeding from continuing a proceeding in the other court. In reaching that conclusion, Evatt CJ relied on the reasoning in Reynolds & Reynolds,[46] Tansell v Tansell,[47] Sieling & Sieling[48] and St Justins Properties Pty Ltd v Rule Holdings Pty Ltd.[49] Evatt CJ also held that by making an order restraining the mother from pursuing her case in the Supreme Court, the mother was not deprived of a proper opportunity to have her claims determined, that is to say, Evatt CJ held that the mother’s substantive rights were not affected by the grant of the injunction.
[45] (1981) 7 Fam LR 106.
[46] (1977) 33 FLR 232.
[47] (1977) 3 Fam LR 11.
[48] (1979) 4 Fam LR 713.
[49](1980) 40 FLR 282.
43.In Gillies, referring to the same authorities as those on which Evatt CJ relied which are set out immediately above, Fogarty J held that an order in the nature of a restraint enjoining a party to a proceeding in this court from conducting a proceeding raising similar issues in another court was “clearly within power”. Further, Fogarty J placed store on the identity of the parties as being relevant in the two pieces of litigation (here, the litigation in this court and the litigation in the Superior Court of New Jersey) for the purposes of issues arising in the High Court’s decision in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd.[50]
[50](1981) 148 CLR 457.
44.In 1997 the High Court of Australia pronounced upon aspects of the anti-suit injunction in CSR Ltd v Cigna Insurance Australia Ltd.[51] That case was not concerned with family law. It arose out of a dispute in relation to policies of insurance said to have responded to asbestos-related claims. Litigation arose in the Supreme Court of New South Wales as well as in the United States District Court in the District of New Jersey. CSR interests applied to stay the proceeding in the Supreme Court of New South Wales. After determination by a single judge then by the Court of Appeal of the Supreme Court of New South Wales, the High Court made a collection of observations about the anti‑suit injunction. Those may be synthesised in the following manner –
[51] (1997) 189 CLR 345.
a)an order enjoining a party from commencing or pursuing a proceeding in a foreign court which has jurisdiction to determine the same controversy can only be exercised where an equity arises entitling one party as against the other to an injunction to restrain the other from proceeding in the foreign court;
b)it is not possible determine in advance the circumstances that give rise to such an equity, as was held in SociétéNationale Industrielle Aerospatiale v Lee Kui Jak;[52]
[52] [1987] AC 871.
c)such an equity arises when it would be unconscionable for the party enjoined to proceed in the foreign tribunal;
d)as was held in Castanho v Brown & Root (UK) Ltd[53] the jurisdiction to issue an anti-suit injunction is not directed against the foreign court but against the party who would invoke that court’s jurisdiction and the order is made “where it is appropriate to avoid injustice”;
[53][1981] AC 557.
e)the making of an order restraining a person within the jurisdiction from pursuing a remedy in a foreign court where that person has a cause of action must be approached with caution because such an order is an interference with the process of justice in that foreign court, as was held in British Airways Board; British Caledonian Airways Ltd v Laker Airways Ltd;[54]
[54] [1985] AC 58.
f)the power to grant an anti‑suit injunction should not be exercised without the court concerned first considering whether its own proceeding should be stayed and, in determining whether its own proceeding should be stayed, the test is as stated in Voth v Manildra Flour Mills Pty Ltd[55] and in Oceanic Sun Line Special Shipping Co Inc v Fay,[56] namely, a stay will only be granted if the Australian court is a clearly inappropriate forum;
[55] (1990) 171 CLR 538.
[56] (1988) 165 CLR 197.
g)the counterpart of the court’s power to prevent its process from being abused is its power to protect the integrity of those processes once set in motion as was held in Jackson v Sterling Industries Ltd[57] and Witham v Holloway;[58]
[57] (1987) 162 CLR 612.
[58] (1995) 183 CLR 525.
h)the inherent power to grant an anti‑suit injunction is not restricted to defined or closed categories, as was held in Hamilton v Oades[59] and Jago v District Court of New South Wales;[60]
[59] (1989) 166 CLR 486.
[60] (1989) 168 CLR 23.
i)the power to grant an anti‑suit injunction is to be exercised when the administration of justice so demands or where necessary for the protection of the court’s own proceedings or processes; and
j)if the Australian court decides that it is clearly an inappropriate forum, that will be the end of its involvement in the occasion for considering whether to grant an anti‑suit injunction or other relief or, if the Australian court reaches the opposite conclusion, namely, that it is not a clearly inappropriate forum, then it must go on to determine whether to require the applicant to seek a stay or dismissal of the foreign proceeding or to grant an anti‑suit injunction.
45.From 2007 a rash of decisions in this court arose from applications for orders for the grant of anti‑suit injunctions. In Christie v Christie[61] Cronin J was concerned with an anti-suit injunction application involving parties beyond the wife and husband. His Honour addressed principles relevant to anti‑suit injunctions including whether a serious matter to be tried had been raised in the proceeding and how, on the facts of that case, the court was endeavouring to protect its process by the grant of injunctions against persons who had participated in that process. His Honour also addressed issues relevant to s 78B(5) of the Judiciary Act holding that the provision did not prevent the court from hearing and determining a proceeding where urgent relief of an interlocutory nature was sought and where the court considered that it was necessary in the interests of justice to hear and determine the application.
[61] (2007) 37 Fam LR 181.
46.In Lederer v Hunt,[62] the Full Court (Bryant CJ, Finn and Boland JJ) provided a detailed examination of principles relating to anti‑suit injunctions in the context of a complex tapestry of company shareholdings. In that case the Full Court proceeded on the presupposition (in respect of which no party took issue) that in appropriate circumstances the Family Court had power to grant an anti‑suit injunction, whether grounded in s 34 of the Family Law Act or in the inherent or implied jurisdiction of the Family Court to make necessary and appropriate orders so as to avoid injustice. On that issue the Full Court followed the reasoning in D v L.[63] The court also adopted the reasoning of Nygh J In the Marriage of Baba and Jarvinsen[64] where his Honour referred to Smith & Saywell[65] and to the proposition that this court, having jurisdiction to make an order restraining a party from proceeding in another court, should take such “an extreme step” only “when it is absolutely essential”. On my reading of the High Court’s decision in CSR Ltd v Cigna Insurance Australia Ltd[66] the threshold for the grant of an anti‑suit injunction is not so high. Inthe Marriage of Baba and Jarvinsen,[67] Nygh J refused the application for an anti‑suit injunction on considerations of justice and judicial comity.
[62] (2007) 36 Fam LR 587.
[63] (2005) 33 Fam LR 525.
[64](1980) 6 Fam LR 276.
[65](1980) 6 Fam LR 245.
[66](1997) 189 CLR 345.
[67](1980) 6 Fam LR 276.
47.The Full Court in Lederer v Hunt[68] addressed the complex argument advanced by Mr Hammerschlag SC (now Hammerschlag J of the Supreme Court of New South Wales) about the equitable foundation for the grant of an anti‑suit injunction. The analysis involved a consideration of several English authorities including Carron Iron Co Proprietors v James Maclaren, Henry Dawson, E H Tibbats Stainton,[69] SociétéNationale Industrielle Aerospatiale v Lee Kui Jak,[70] Peruvian Guano Co v Bockwoldt[71] and Bank of Tokyo Ltd v Karoon[72] in which it was held that the power to stay foreign proceedings that were vexatious or oppressive was a proper power derived from equity – to serve equity and good conscience. The Full Court, in applying CSR Ltd v Cigna Insurance Australia Ltd[73] held that the learned trial judge did not err in granting the anti‑suit injunction.
[68] (2007) 36 Fam LR 587.
[69] (1855) 10 ER 961.
[70] [1987] AC 871.
[71] (1883) 23 Ch D 225.
[72] [1987] AC 45.
[73] (1997) 189 CLR 345.
48.On 4 March 2011 O’Reilly J handed down judgment in Whung & Whung[74] involving an application for an anti‑suit injunction in relation to a proceeding on foot in the Taiwan Republic of China. The husband had commenced a proceeding for divorce in April 2010 in the H District Court in Taiwan. A divorce was granted in November 2011. The wife appealed against the divorce decree. In June 2010 the wife commenced a proceeding in this court seeking orders for the division of property in relation to her marriage with the husband. In that proceeding the wife joined as the second respondent an adult son of the husband’s marriage with his first wife as well as an adult son of her marriage. The third respondent had earlier commenced a separate proceeding against the wife seeking declaratory and other relief in the Supreme Court of Queensland in which he alleged fraud in respect of money belonging to him. Several applications were dealt with by O’Reilly J. Her Honour proceeded by addressing first the husband’s application for a stay of the wife’s proceeding and, if it were determined that the Family Court of Australia was a clearly inappropriate forum for the wife’s property claim against the husband, it would be unnecessary for her Honour to consider the wife’s application for anti‑suit injunctions. However, O’Reilly J said that if her Honour took the view that the Family Court was not a clearly inappropriate forum for the wife’s property claim, then it was necessary to consider and determine the applications for anti‑suit injunctions. That much was in accordance with the sequence decided by the High Court in CSR Ltd v Cigna Insurance Australia Ltd.[75]
[74](2011) 45 Fam LR 269.
[75](1997) 189 CLR 345.
49.Relying on the observations of the High Court in Voth v Manildra Flour Mills Pty Ltd[76] and in Henry v Henry,[77] O’Reilly J held that the relevant test is whether the local court is a clearly inappropriate forum. In answering that enquiry, a court determines the competing advantages and disadvantages arising from continuing with a proceeding in the selected forum. Citing Henry v Henry, her Honour held that it is relevant to consider whether jurisdiction exists in the court of another forum to deal with the same subject matter which is before the Australian court and the stage which that other proceeding had reached in that other forum.
[76](1990) 171 CLR 538.
[77](1996) 185 CLR 571.
50.As opposed to the New Jersey case in the New Jersey court, this court is concerned with an application for orders in relation to Australian superannuation funds with which the New Jersey court has no power to deal. That proposition went some way in the husband’s favour to take this case out of the category of cases canvassed in Henry v Henry where the majority spoke of the “same controversy” being agitated simultaneously in proceedings in different countries. In Davies, Bell and Brereton’s, Nygh’s Conflict of Laws in Australia[78] the learned authors cautioned against using metaphors such as balancing and weighing considerations and instead stated that the judge’s task involves assessing whether there are enough factors indicating that the forum (here, Australia) is clearly inappropriate in which case a stay should be granted.
[78]LexisNexis, 8th ed, 2010.
51.Naturally, this court has no power to make orders in relation to real property in a foreign jurisdiction, as the rule in British South Africa Co v Companhia de Mocambique[79] stipulates.
[79][1893] AC 602.
52.Returning to Whung & Whung,[80] O’Reilly J relied on Henry v Henry which addressed the desirability of there being complete resolution of the matters involved in the parties’ controversy. In this case the New Jersey court will be unable to address the parties’ Australian superannuation. To that extent, the proceeding in this court will deal with all matters in the controversy between the parties whereas the New Jersey litigation in the New Jersey court will not. Far from the proceeding in this court being clearly inappropriate, it seemed to me that the parties’ litigation in this court will be more likely to resolve all issues in controversy between them.
[80](2011) 45 Fam LR 269.
53.It is also pertinent to consider the stage which each proceeding has reached. That has been set out above in relation to the New Jersey proceeding. It seems it has gone no further than an application having been filed. The case has not yet been allocated to a judge. Conversely, in relation to this proceeding, the wife is a resident of Australia, the children reside in Australia and various assets are located in Australia.
54.On the stay application I am not persuaded that this court is a clearly inappropriate forum.
55.It then became necessary to determine whether to grant an anti‑suit injunction. O’Reilly J condensed the bases for the grant of such an order to two. The first was sourced in this court’s inherent power to prevent its processes from being abused and its power to protect the integrity of those processes. The second was the power derived from the Courts of Chancery to make orders in restraint of unconscionable conduct or in the unconscientious exercise of legal rights or where, upon equitable principles, the commencement or continuation of a proceeding in a foreign court would, according to equitable principles, be vexatious or oppressive. CSR stands for both prepositions.
56.Before leaving the subject it is useful to record the distillation of principle on which Berman J proceeded in an application for an anti‑suit injunction in Jess & Jess.[81] Most of the authorities mentioned in the foregoing paragraphs were addressed by Berman J. However, for reasons relevant to the facts of that case, Berman J examined some of the learning of the Federal Court of Australia on the subject of anti‑suit injunctions including Pan Australia Shipping Pty Ltd v Ship “Comandate”,[82] BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd[83] and Incitec Ltd v Alkimos Shipping Corporation.[84] To that may be added the recent decision of the Full Court of the Federal Court of Australia in Wileypark Pty Ltd v AMP Limited.[85]
[81] [2013] FamCA 863.
[82] [2006] FCA 881.
[83] (2008) 168 FCR 169.
[84] (2004) 138 FCR 496.
[85] (2018) 130 ACSR 66.
57.The decision of Berman J in Jess & Jess was unsuccessfully appealed in Jess & Jess.[86]
[86] (2014) 52 Fam LR 43.
58.It is also useful to record that in Teo v Guan[87] the Full Court (May, Thackray and Crisford JJ) held that the Full Court of the Family Court of Australia had not formally pronounced on the precise source of power for the grant of an anti‑suit injunction in the Family Court of Australia. There, the court held that it was arguable that the power of the Family Court of Australia to grant an anti‑suit injunction arises from a source other than s 34 of the Family Law Act. Yet the court declined to decide the point.
[87] (2015) 53 Fam LR 248.
59.The jurisdictional basis for the grant of an anti-suit injunction again came before the Full Court of the Family Court of Australia in Cole v Abati.[88] There, the Full Court (Thackray, Strickland and Murphy JJ) made three important observations. First, the court referred to statements of principle in the High Court in CSR to the effect that anti-suit injunctions can be granted either in the exercise of an inherent power to protect the court’s processes or in the exercise of the court’s equitable jurisdiction. Second, the court questioned whether the Family Court of Australia was a court of equity. Third, the court proceeded on the footing that it was open to the learned trial judge to grant an injunction in the same circumstances as an injunction could be granted by a court of equity. In the upshot, the Full Court dismissed an appeal from the trial judge’s grant of the anti‑suit injunction.
[88] (2016) 55 Fam LR 329.
60.In any examination of the factual basis for the grant of an anti‑suit injunction, as opposed to the jurisdictional foundation for the grant of such an order, the Full Court of the Family Court has emphasised the importance of the starting point being an examination of the two proceedings (relevantly here, the case in New Jersey and the case in this court) for the answer to those questions. Those questions are –
i) whether there in truth is but one controversy;
ii)whether complete relief is available in the local jurisdiction; and
iii) whether something is to be gained in the foreign proceeding.
61.That analysis was espoused in Lan & Hao(No 2).[89] On the facts of that case it was argued that the Chinese court could not deal with the property in Australia with the consequence that there had to be a proceeding on foot in Australia to address that issue. The Full Court posed the question for determination in the following terms –
Thus, in accordance with these statements of principle, we consider that the path her Honour should have taken was first to consider the nature of the proceedings in China to determine whether they raised the same or a different controversy, whether or not there was something to be gained in them, and whether there was complete relief available in Australia.
[89] (2017) 325 FLR 1.
62.The Full Court took the view that the wife did not live in Australia and only had assets in China with the consequence that the only prospect the husband had of obtaining any enforceable order for the payment of money to him was to obtain such an order in China. Thus, there was utility in the proceeding in China.
63.The final decision of the Full Court in my survey of prevailing authorities is Underwood & Underwood.[90] The relevant statement of principle was expressed in the following passages –
[90] [2017] FamCAFC 267.
22.The matter came before the primary judge in a duty list and on the face of the material before the Court there were proceedings in Australia and the USA between the same parties involving the same controversy the continuation of one or the other of which was prima facie vexatious or oppressive in accordance with the test laid down in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554.
23.The approach adopted by the primary judge was therefore appropriate.
64.From those two paragraphs from Underwood & Underwood it will be immediately apparent that the court was focusing on the stay application rather than the thorny questions associated with the anti‑suit injunction.
It may fairly be said that the review just recorded was extensive but it did not include the whole of the learning in this court about the anti-suit injunction. There was no need as the decisions of the High Court in Voth v Manildra Flour Mills Pty Ltd,[91] CSR Ltd v Cigna Insurance Australia Ltd,[92] Henry v Henry[93] and the others surveyed above were largely determinative on the issue. That said, other authorities not surveyed in Hillam & Barret do exist and for completeness, I should include them. They are In the Marriage of Caddy & Miller[94] in which it was held that a decision of another court (here, of Singapore), even if it were said that such decision operated as an estoppel by res judicata, in no way impinged on the jurisdiction of this court otherwise seized of a matter under s 79 of the Family Law Act, to decide the matter. Other cases also include Kemeny & Kemeny,[95] In the Marriage of Dobson and Van Londen,[96] Garrett & Cowell[97] and Skinner & Alfonso-Skinner.[98] The latter case is useful in that consideration was given to the question of the bifurcation of a proceeding in a foreign court as compared with the proceeding in this court. That issue enlivened the observations of the High Court in Henry v Henry where the plurality held as follows –
If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.
Although the appellant first brought proceedings against the respondent in Monaco for judicial separation and, only later, commenced proceedings for divorce, both proceedings were, in essence, proceedings with respect to their marital relationship. Clearly, it was the same marital relationship which was the subject of the divorce proceedings brought in Australia by the respondent. And although it may not be quite so clear, the property proceedings instituted by the respondent in the Family court are but an aspect of his controversy with the appellant as to their marital relationship. It may have been otherwise if they were no longer married, but so long as their marriage subsists, their dispute with respect to property is a dispute as to the rights and obligations arising out of their marital relationship and those which should attend its dissolution. As such, it is properly to be seen as part of the controversy with respect to that relationship.
[91] (1990) 171 CLR 538.
[92] (1997) 189 CLR 345.
[93] (1996) 185 CLR 571.
[94] (1986) 10 Fam LR 858.
[95] (1998) 23 Fam LR 105.
[96] (2005) 33 Fam LR 525.
[97] [2007] FamCA 778.
[98] [2010] FamCA 329.
Self-evidently, it is undesirable for a proceeding to be on foot in Singapore in which the precise subject matter is being addressed as is being addressed in this court. The financial cost, personal toll to the litigants and inconvenience, to say nothing of the risk of inconsistent decisions of the two courts is manifest. I raised this issue with Mr Hoult and Mr Mawson QC in debate on 16 January 2020.
Other illustrations of anti-suit injunction applications emerged. They include East v Coulson.[99] There, the anti-suit injunction was refused on the basis that an industrial arbitration was being pursued in one forum whereas orders under s 79 were being pursued in litigation in this court and this court had no power to deal with the industrial arbitration. A permanent stay was ordered in Yeo & Huy (No 2).[100] Hughes & Hughes[101] was a fact specific consideration of Voth v Manildra Flour Mills Pty Ltd and Henry & Henry as was White & Temple.[102] Little in the way of guiding principle emerged from either. Similarly the Full Court decision of Cole & Abati[103] falls into the same category. Other cases involving anti-suit injunction applications emerged in Bills & Bills[104] and Kent & Kent.[105] None of those last-mentioned authorities involved a detailed review or consideration of the applicable binding authorities and none compared to the analysis I gave to the learning on the issue in Hillam & Barret.
[99] (2010) 43 Fam LR 531.
[100] [2012] FamCA 541.
[101] [2014] FamCA 12.
[102] [2014] FamCA 396.
[103] (2016) 55 Fam LR 329.
[104] [2015] FamCA 1193.
[105] [2017] FamCAFC 157.
In my view, in this case it cannot be said that the precise same litigation is on foot in Singapore as it is in this court. While true, the Singapore court has power to grant orders in personam against both parties. Yet those orders are likely to be of little utility having regard to the fact that the majority of the property is in Australia. Enforcing any orders made by the Singapore court will be problematic in Australia whereas an order of this court is enforceable according to its terms without more.
It seems to me that even if all things were equal, and here they are not, the enforceability of orders of this court in respect of assets located in Australia renders this court the preferable forum over the court in Singapore.
To my mind the appropriate way forward is twofold – first, to refuse the respondent’s stay application and second, to grant the applicant’s anti-suit injunction.
I refer to the docketed registrar the applicant’s applications for the appointment of a single expert to value the land and improvements of B Street, Suburb C and for the wife to make full and frank disclosure.
Accordingly I make those orders and otherwise refer the proceeding for ongoing case management before the docketed registrar.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 18 February 2020.
Associate:
Date: 18 February 2020
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