Skinner & Alfonso-Skinner
[2010] FamCA 329
•28 April 2010
FAMILY COURT OF AUSTRALIA
| SKINNER & ALFONSO-SKINNER | [2010] FamCA 329 |
| FAMILY LAW – JURISDICTION – ANTI-SUIT INJUNCTION – Proceedings commenced by wife in Spain for divorce and ancillary relief – Proceedings commenced by husband in Australia for divorce, financial orders and limited parenting orders – Husband sought an anti-suit injunction preventing the wife continuing proceedings in Spain – Wife and children live, and continue to remain, in Spain – Bulk of the parties’ property is in Australia – Consideration of jurisdiction of foreign court and international comity – Where the court can determine the current proceedings before it without impinging on the foreign court – Consideration of bifurcation of the proceedings in light of Henry v Henry and Voth v Manildra Flour Mills Pty Ltd |
| Family Law Act 1975 (Cth) ss 75(2), 79 Family Law Rules 2004 (Cth) |
| Bank of Tokyo Limited v Karoon [1987] AC 45 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Nygh P. E. Conflict of Laws in Australia (7th ed, 2002) |
| APPLICANT: | Mr Skinner |
| RESPONDENT: | Ms Alfonso-Skinner |
| FILE NUMBER: | SYC | 5175 | of | 2009 |
| DATE DELIVERED: | 28 April 2010 |
| PLACE DELIVERED: | Lismore |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 9 December 2009; 19 April, 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Grieve QC |
| SOLICITOR FOR THE APPLICANT: | Watson & Watson Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Beaumont |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
Orders
THAT the application by the husband for the Orders sought in paragraphs 1 to 6 inclusive of the Initiating Application filed on 28 August 2009 be permanently stayed.
THAT the Application for Divorce filed by the husband in the Federal Magistrates Court on 28 August 2009 be permanently stayed.
THAT the application by the husband for the Order sought in paragraph 10 of the Initiating Application filed on 28 August 2009 be dismissed.
THAT the Application in a Case filed by the husband on 23 October 2009 be dismissed.
THAT the application by the husband for financial orders sought in paragraphs 7 to 9 inclusive and paragraph 11 of the Initiating Application filed on 28 August 2009 and the application by the wife for financial orders sought in paragraphs 2 to 5 inclusive of the Response to Initiating Application filed on 10 October 2009 be adjourned to a Registrar of this court sitting at Sydney at a time and on a date to be fixed for the making of further directions.
THAT each of the husband and wife shall file and serve upon the other not less than 14 days prior to the date for directions appointed in accordance with the previous paragraph of these Orders, a minute of the directions sought to be made for the further progress of the applications for financial orders.
THAT any submissions in support of the orders for costs contemplated by paragraphs 13 and 5 of, respectively, the husband’s said Initiating Application and Application in a Case and paragraphs 6 and 8 of, respectively, the wife’s said Response to Initiating Application and her Response to an Application in a Case filed 4 December 2009 be:
(a) Made in writing; and
(b)Forwarded via e-mail to the Associate to Justice Murphy, and sent contemporaneously to the solicitors for the other party, within 21 days of the date of these Orders.
In the event that neither party forwards submissions in respect of costs in accordance with the previous paragraph of these Orders, each party shall bear their own costs of and incidental to these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Skinner & Alfonso-Skinner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: SYC 5175 of 2009
| MR SKINNER |
Applicant
And
| MS ALFONSO-SKINNER |
Respondent
REASONS FOR JUDGMENT
The husband is an Australian citizen and lives in Sydney. The wife is an Argentinian citizen and lives in Spain. The parties commenced cohabitation in the United States of America and subsequently married in that country in 1998. The parties’ first child, S, was born there in 2000 (November).
The parties and S commenced living in Australia in early 2002. About three years later, in early 2005, the husband travelled to Spain to start a business and the wife and S joined him in August of that year. Some four months later, the parties’ second child, M, was born in Spain (December 2005).
The international elements to the parties’ relationship gives rise to the current proceedings.
The husband asserts that the parties separated in April 2007 when he moved from Spain to Australia. The wife asserts that separation occurred in July 2008. The wife filed a Petition for Dissolution of Marriage in the Family Court of 1st Instance in Madrid, Spain, on 16 July 2009. Those proceedings also sought ancillary relief including relief described as “maintenance for the benefit of the children” (referred to in argument as roughly equivalent to the notion of child support in Australia) and “spousal income support payment” (described in argument as roughly equivalent to spousal maintenance in this country, albeit not an identical remedy). Interim relief in each of those two respects was also sought in Spain in those proceedings.
About a month later, on 28 August 2009, the husband filed in the Federal Magistrates Court at Sydney an Application for Divorce and, on the same day, an Initiating Application in this Court seeking parenting orders and financial orders. The father’s Initiating Application also sought the following relief:
10.That the wife by herself, her servants or agents or otherwise be restrained from:
10.1Taking any further steps in any proceedings issued by or on behalf of the wife in Spain or any jurisdiction other than that of the Commonwealth of Australia; and
10.2Instituting any further proceedings against the husband in Spain or any jurisdiction other than that of the Commonwealth of Australia relating to the marriage of the parties, the children or to any property of either or both of the parties.
An Application in a Case filed by the husband on 23 October 2009 sought injunctive relief in similar terms, restraining the wife from “continuing or taking any further step in proceedings in Local Court 93 Madrid Spain Divorce Dispute […]/2009 other than a stay of or a dismissal of those proceedings without further order of this Court”.
By her Responses to each of those applications, the wife seeks, in respect of the parenting orders, an order “for a stay of the husband’s Initiating Application as to parenting orders sought on the basis that the Family Court of Australia is a clearly inappropriate forum”. By her Response to an Application in a Case, the wife seeks an order that the husband’s Application be dismissed and “that the parenting proceedings commenced by way of an Initiating Application filed by the husband on 28 August 2009 be stayed”.
The wife also filed a Response to Divorce on 22 October 2009 in which she accepted that the Federal Magistrates Court of Australia had jurisdiction to make the decree but submitted “that this Court should decline to exercise that jurisdiction”.
The central issue in this case, then, is this: should it be this Court, or the Courts of Spain, that determine the Application for Dissolution and ancillary relief? In the latter respect, the wife seeks no relief for settlement of property (or what might be its equivalent in Spain) and submits to the jurisdiction of this Court in responding to the husband’s application for same.
Re-Opening
When this matter was heard, proceedings in both Spain and Australia had not, as submitted by Mr Beaumont, counsel for the wife, “advanced beyond what might be called the pleading stage”. Prior to delivery of judgment in the instant proceedings, in early March, a communication was received by the court to the effect that both parties sought to re-open the proceedings to place before the court evidence of further proceedings which had occurred in Spain.
A further hearing was convened on the first available date, 19 April and, in contemplation thereof, affidavits filed on behalf of each of the parties. What had occurred in the family court of Madrid can be briefly summarised as follows (framed in language familiar to this court).
The husband asserted that the wife purported to serve him with the Application for Divorce at the former matrimonial home in Madrid, knowing full well that he lived predominantly in Australia. In “nullifying” the summons to him in respect of Divorce, the court held:
…it has been proven that the [husband] has been summoned at the former conjugal home [in Madrid] as the [wife] requested. When the truth is that, after abandoning such address in January, 2008, he is residing in [Sydney]
…it is proper to declare the nullity of the summons made on [the husband], and he is newly summoned …to appear on the scheduled date.
The husband appealed. The court had held that the husband had (through his Spanish lawyer) appeared at the first hearing; the husband contends the appearance was strictly limited to challenging the Spanish court’s jurisdiction and that, therefore, the court did not have the jurisdiction to re-summon him (presumably without first determining jurisdiction).
The Spanish court dismissed the appeal saying:
As a result of all this, the appeal for reversal of the court’s decision … must be dismissed because we cannot admit that they only had powers to challenge the jurisdiction of the special Courts, and it would be against [the husband’s] own acts, because of that stated above.
However, and given the Court Representative’s and the Attorney’s refusal to consider that they have appeared for all purposes in these proceedings, and to avoid any further delays, the notice of the complaint shall be personally served on the defendant …”
The wife argues that the Spanish court has determined it has jurisdiction to hear and determine the wife’s divorce application. The husband contends that, upon the “re-summoning” of the husband consequent upon personal service, he will be entitled to challenge the jurisdiction of the Spanish court to hear the divorce. The latter seems, intuitively, more likely to me but for reasons which will emerge, it is not necessary (nor in my view proper having regard to issues of international comity) to make a finding (or purport to make a finding) in respect of that issue.
A similar argument emerges in respect of the ancillary relief sought by the wife in Spain. The Spanish court has made orders in favour of the wife that can conveniently be described as orders for custody and child support. The husband argues that each are based on a falsehood (that he “abandoned his children”) in the same way that service of the Divorce process was based on a falsehood (residence in Madrid). It is said by the husband that jurisdiction can be challenged in respect of this relief also.
Mr Beaumont does not seek findings from this court in respect of the jurisdiction of the Spanish courts nor, indeed, the propriety or otherwise of the Spanish orders. Rather, he submits, the proceedings in Spain have now plainly advanced beyond the “pleading stage” and their progress has, of itself, relevance to the matters that this court ought consider by reference to the decision of the High Court in Henry v Henry (1996) 185 CLR 571 (“Henry”).
Mr Grieve QC, counsel for the husband, submits that the only progress that can be seen to have been made within that context is “the making of an ex parte order based on a false factual premise” (that the husband had “abandoned his children”).
Before deciding upon the place of the evidence thus introduced at the re-opened proceedings, and its weight, it is first necessary to outline the proper legal and factual context of these proceedings.
Applications in Context
The husband seeks injunctive relief. The effect of the injunctive relief sought by the husband, if granted, will be to prevent the wife from continuing with proceedings in Spain for divorce, and orders which, in terms of their Australian approximations, can be described as parenting orders, spousal maintenance and child support. By reason of the wife’s concession, proceedings in respect of “the property of the parties or either of them” (the great bulk of which is situated in Australia) will occur in this Court.
This founds a central plank of the husband’s argument. Written submissions on his behalf contend that, “… the wife would have it that there should be concurrent proceedings between the parties in Spain and Australia in relation to discrete issues arising out of the marital relationship”. This, it is argued, is contrary to principle and should not be permitted.
The wife seeks a stay of the Australian proceedings for parenting orders and divorce. The basis for each is that Australia is a “clearly inappropriate forum”.
The best interests of children are likely to play a very significant role in determining an appropriate forum (see EJK and TSL (2006) FLC 93-287). Here, though, at the outset of the initial part of the proceedings, the husband’s Queens Counsel indicated that no order was any longer sought which challenged the children continuing to live with the mother assuming, as she indicates, that she continues to live in Spain.
The concession made by the husband means that the only parenting issue between the parties that might be alive on the current facts (that is, the wife and children living in Madrid) is time between the father and the children and parental responsibility, or aspects of it. Counsel for the wife submitted in oral argument that as a result of the concession by the husband:
…there is no serious question to be tried in relation to parenting procedures before this Court … the husband has totally abandoned the relief which he seeks in the application for final parenting orders … There is no competing or substitute or amended application before your Honour …
I think that somewhat overstates the position. What was said on behalf of the husband at the outset of the proceedings was, relevantly, this:
At the outset, I would like to read on to the record my client’s position on … the parenting issues … if the wife declares unequivocally that it is her desire and intention to remain resident in Spain with the children for the indefinite future, the husband will accept that and will accept that she, as the primary caregiver will be entitled to orders that the children will reside with her.
What the husband does desire this court to determine in relation to parenting issues, absent any agreement between the parties, are the terms and conditions upon which he may have contact with the children. He also desires that this Court is to recognise, as he confidently expects that it will, his entitlement as the children’s father to participate in all decisions of significance concerning their future …
No parenting orders emanating from the husband’s filed application have been made. The wife has not “pleaded” to the application for final relief in respect of parenting orders (save as to allege stay). Aspects of the application as filed can be seen to remain alive (eg. the orders sought in respect of school holiday time and an order sought for equal shared parental responsibility). While it is true that no application has been made to amend, amendment is readily available to the husband (see generally Chapter 11, Family Law Rules 2004).
The granting of the husband’s anti-suit injunction would, then, have the effect that the property proceedings and the remaining (or later amended) application for parenting orders would proceed in this Court (together with any other relief sought in a substantive response filed by the wife if the husband’s injunction is granted including, as seems likely, an application for spousal maintenance and, perhaps, child support departure).
The refusal of the husband’s injunction, and the grant of the wife’s stay, would permit proceedings for parenting orders, divorce, spousal maintenance and child support being heard and determined in Spain (in accordance with Spanish law) and property proceedings determined in this Court (in accordance with Australian law). The wife plainly contends, then, for bifurcated proceedings parts of which would occur in different countries with different legal systems and different laws.
Obviously enough, however, the wife’s case is dependant upon the jurisdiction of the Spanish court to hear and determine those proceedings, (or those parts of the proceedings). As has been seen, the husband denies that the courts of Spain have that jurisdiction and intends to litigate that issue in the Spanish courts to the extent that the laws of that country permit.
Jurisdiction: The “Threshold Issue”
The issues just adumbrated were the subject of a submission by the wife at the first part of the hearing that this (Australian) Court should not embark upon a consideration of the husband’s application for anti-suit injunction because of his challenge to Spanish jurisdiction in the courts of that country. The argument is that these proceedings should be “stood over” pending a decision by the Spanish court as to whether it has jurisdiction to hear and determine the wife’s applications to it.
That submission has as its foundation, and receives force from, comments by the plurality of the High Court in Henry. Their Honours said, at 592, that:
To start with, no question arises unless the Courts of the respective countries have jurisdiction with respect to the parties and their marriage, and if there is a question as to the jurisdiction of the foreign Court, it may be necessary to adjourn the local proceedings to enable the foreign Court to determine that question.
The circumstances pertaining at the first part of the hearing are now supplemented by further proceedings in Spain. Those proceedings can be seen to have had, as at least some part of their focus, a question of the Spanish court’s jurisdiction.
The gravamen of the wife’s argument – mounted as a “threshold question” in the first part of these proceedings – is that the remarks by the High Court in Henry just quoted, and “…international comity and respect for the Spanish Court” point to the issue of the jurisdiction of that Court being determined prior to any issue about the inappropriateness of this Court as a forum being determined.
Mr Grieve argues in written submissions that:
… Given the fact that the Spanish Court almost certainly does not have jurisdiction over these parties, their competing claims for interlocutory relief may, and should, be dealt with without delay. At the risk of stating the obvious, the discretion to grant an anti-suit injunction may be exercised, in an appropriate case, where it is clear that the foreign Court has jurisdiction. A fortiori, where it does not, either arguably or plainly, such an injunction should go.
As will shortly emerge, I am by no means sure that the proposition can be stated as baldly as that. In any event, I am not in this case prepared to base a decision on an assumption – tantamount to a finding – that it is “almost certain” that the Spanish court does not have jurisdiction. Further, at the first part of the hearing Mr Grieve urged the court to find that the husband has not submitted to the jurisdiction of the Spanish court within the meaning of the relevant Spanish law (evidence of which was before the court from an expert in same, Mr G).
There may be cases in which this Court is able to come to a clear and definitive decision about the jurisdiction of a foreign Court. Given that such questions are likely to involve questions of foreign law, together, perhaps, with foreign rules of evidence and procedure, all of which are unfamiliar to this Court, it is unlikely that such cases will be common.
The evidence adduced after the proceedings were re-opened does not cause me to alter my view in either of those respects. It is, in any event, by no means clear – to me at least – from the evidence in those re-opened proceedings, that an ultimate finding about the jurisdiction of the Spanish courts (or the husband’s ability to challenge same) has been made finally by the courts of that country.
But, as counsel for the wife makes clear, it is not necessary that this court decide that issue to sustain his initial submission: central to the wife’s argument is that reference to the passage from Henry above quoted points to the fact of a challenge to the foreign court’s jurisdiction being sufficient to justify this court “standing over” the current proceedings until such time as the question of the Spanish courts’ jurisdiction is determined by them.
Anti-Suit Injunctions Where a Question of Foreign Jurisdiction Exists?
There is, then, to my mind, a reasonable foundation for arguments in support of a contention that, in the usual course of events, this court would be reluctant to grant an anti-suit injunction in circumstances where a live issue about the jurisdiction of a foreign court has not been determined by that foreign court. As submitted by the wife, issues of international comity and propriety can be seen as an important component of that proposition.
The importance of the former has been specifically recognised by the High Court. In CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345 (“Cigna”) at 396, the plurality cited with approval the comments by the Supreme Court of the United States in Hilton v Guyot (1895) 159 US 113 in the following terms:
‘Comity’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will on the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.
Yet, factors, both of general application and specific to this case, also point to a conclusion which would see the issue of forum being decided in this court, irrespective of the absence of a decision of the Spanish courts about their jurisdiction.
The passage from the majority in Henry earlier quoted makes it plain that the prospect of a jurisdictional argument in a foreign court may need to be decided before the relevant proceedings for stay or injunction in the local Court; a discretion exists in the local Court as to whether to adjourn or not. The court’s discretion in respect of the application ought, in my view, be informed by reference to findings about the interests of justice. Within that consideration, the important matter of international comity earlier referred to must be taken into account.
In my judgment, no offence is done to notions of international comity (in the sense earlier described) by determining the instant application in the absence of a finding by the Spanish Courts that they have jurisdiction with respect to the proceedings initiated by the wife.
No such order made by this Court purports in any sense to impinge upon an independent decision by the Spanish Court about its jurisdiction. If, ultimately, that Court decides there is no jurisdiction, then any anti-suit injunction made by this Court either becomes redundant or serves to underscore or put beyond doubt, the matters the subject of it. If, on the other hand, the Spanish Court decides it has jurisdiction, then issues relevant to anti-suit injunction or the stay of proceedings in this Court, remain relevant and unaffected by any ultimate Spanish decision on that issue.
I cannot see that either party is prejudiced by this Court proceeding to determine the applications before it without deciding the issue of the Spanish court’s jurisdiction or adjourning these proceedings to allow that to occur definitively.
Indeed, Counsel for the wife effectively concedes as much on her behalf, indicating during the course of the initial part of the hearing that he was in all respects ready to otherwise argue the applications in the event that the “threshold question” was determined against his client. Plainly, the husband suffers no prejudice by that occurring.
In my judgment, the interests of justice point to the respective applications for anti-suit injunction and stay being determined by this court as soon as possible notwithstanding the challenge to the jurisdiction of the Spanish Court existing at the time of the initial part of the hearing and the proceedings in Spain that have involved that question since. Doing so does no offence to international comity.
the Bifurcation of Proceedings
The plurality in Henry held, at 591:
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.
As earlier pointed out, if an anti-suit injunction is not granted in this case, there will, on the wife’s case, be proceedings in a Spanish Court for relief whose Australian equivalents are divorce, spousal maintenance and child support as well as (likely truncated) parenting proceedings and proceedings in this Court in respect of settlement of property.
That immediately raises an issue central to the arguments on behalf of the husband, namely that two sets of proceedings, running concurrently in Courts of different jurisdictions in different countries arising from the matrimonial relationship between the parties ought not be permitted to occur.
In Dobson and Van Londen (2005) FLC 93-225 (“Dobson”), the Full Court held, in a case with facts similar to the present:-
73.It is true that neither party has instituted proceedings in relation to spousal maintenance or child support in an Australian court. [That is also the position in the instant case]. This fact must cause us to be extremely cautious in restraining such proceedings in the Netherlands. Nevertheless, regard must also be had to the fact that the wife is seeking property settlement orders here – albeit in response to the husband’s Initiating Application [That is also the position in the instant case].
74.Regard must therefore be had to the fact of the relationship in this country between property settlement orders, spousal maintenance orders and child support obligations. This interrelationship can easily be seen by reference to the provisions of s 79(4) of the Family Law Act which sets out the matters to which regard must be had in making an order under s 79 for property settlement. …
…
76.When regard is had to this interrelationship between proceedings and orders for property settlement, spousal maintenance and child support, we consider that it is vexatious and oppressive to commence and prosecute proceedings for spousal and child maintenance in a foreign court: when both parties are seeking orders for property settlement in this country; when identical issues relating to the parties’ financial positions and the needs of their children will need to be examined in all proceedings in question; and when all financial matters can be determined in this country.
77.The oppression and vexation of such a situation is confirmed when regard is had to the language differences and differences in the legal systems between Australia the Netherlands and the wife’s considerable advantages over the husband in relation to these matters. A further matter of significance is the husband’s right to have reviewed (and possibly rendered nugatory) in Australia any Dutch maintenance order before it is enforced in this country.
Understandably, given the similarity in facts between Dobson and this case, Mr Grieve QC places considerable reliance upon that decision of the Full Court in arguing for the injunction sought. Mr Grieve ultimately submitted that the decision was “indistinguishable” from the present case and that, accordingly, I am bound by it and must follow it.
It is certainly true that the similarity in factual circumstances ought cause this Court to give that decision particularly close scrutiny. That is all the more so because the submission made by Mr Grieve QC might be seen to gain force by passages appearing in the Full Court judgment. Examples are:-
46.As we indicated at the outset of this discussion, we accept for the reasons advanced in the submissions of Counsel for the husband, that the observations contained in the joint judgment in Henry concerning the need to treat issues arising between husband and wife as forming but one single controversy arising out of the matrimonial relationship, have application not only when considering a stay of a local proceedings on forum non conveniens grounds, but also when considering the grant of an anti-suit injunction. Nothing put to us by Counsel for the wife dissuades us from this conclusion.
…
48.As we have said, we are persuaded, having regard to the submissions of Counsel for the husband directed to the common test of vexation or oppression, that the passage in question from Henry would have application to the grant of an anti-suit injunction in relation to matrimonial proceedings, and thus the unity of matrimonial causes should be the starting point, so to speak, of any consideration of an application in such proceedings.
…
51.… There was, it was submitted, a failure on the part of the Trial Judge to give any proper weight to the fact that the outcome of his orders (whereby property orders would be made in Australia and spousal and child maintenance orders in the Netherlands) would be to require both the Australia and the Dutch Courts to investigate and make findings as to the parties assets, liabilities, financial resources, income, capacity for employment, and their commitments.
52.Thus, it was submitted, that for the wife to commence in the Netherlands proceedings which would give rise to the same issues, after she had already submitted to the jurisdiction of the Family Court to deal with such issues, and indeed had sought her own orders here, was, in the relevant sense, vexatious and oppressive since “complete relief” is available to the wife in the local proceedings. We understood Counsel’s submissions in this regard to be directed to the availability in this jurisdiction of both Court orders for spousal maintenance and administrative assessments and/or Court orders in relation to child support.
In my view, however, the Full Court in Dobson did not purport to lay down any principle of general application. Rather, Dobson is a case in which error was found on the part of a trial judge in the exercise of discretion. The principles within which that discretion ought to have been exercised were laid down in Cigna and Henry.
That, ultimately, issues of discretion are involved was made plain by the Full Court as, indeed, it was made plain by the High Court in each of the two decisions just referred to. For example, in Dobson the Full Court there said:
67.We agree with submissions of Counsel for the husband that the above-mentioned matters were matters to which the trial Judge should have had regard in exercising his discretion in relation to the grant of the anti-suit injunctions in respect of the spousal and child maintenance proceedings pending in the Netherlands … Had his Honour had regard to these matters and had he accepted that the test of oppression and vexation should be applied by him, he would most likely in our view have been satisfied of the oppressive and vexatious nature of the Dutch proceedings for spousal and child maintenance.
The principles applicable to the grant of an anti-suit injunction and those applicable to the grant of a “Voth stay” are not identical. The majority in Cigna held, at 390:
… Because stay orders and anti-suit injunctions are the remedies by which actual or potential conflict is resolved, there has been a tendency, at least in the United Kingdom, to view both measures as governed by the same legal principles. That tendency has now been corrected, it having been pointed out by the Privy Council in Société Aerospatiale that the principles are not the same.
Although stay orders and anti-suit injunctions are not governed by the same principles, it will later become apparent that, in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings and it will also become apparent that, in other cases, the power to grant anti-suit injunctions should not be exercised without the court concerned first considering whether its own proceedings should be stayed ….
The written submissions on behalf of the husband refer to passages from Robert Goff LJ in Bank of Tokyo Limited v Karoon [1987] AC 45, also referred to by the High Court in Cigna and by the Full Court in Dobson. However, it is important to emphasize that the High Court in Cigna, after reviewing at some length earlier English cases, went on to say, at 394:-
Given that, in England, the power to grant injunctions has for many years been conferred by statute, it is not surprising that the cases decided in that country in recent years do not make a clear distinction between injunctions granted in exercise of the inherent power and those granted in the exercise of equitable jurisdiction. However, the older cases referred to in Societe Aerospatiale make it abundantly clear that the power to stay foreign proceedings which are vexatious or oppressive, in the sense already described, is a power which derives from equity.
Because the power to grant injunctions in respect of foreign proceedings which are vexatious or oppressive, in the sense described, derives from equity, it is not to be confined to the examples found in the decided cases. Rather, it is a power the limits of which are determined by the dictates of equity and good conscience. …
…
It is not a power which involves a determination that proceedings instituted in a foreign court are vexatious or oppressive in the sense that they are abuse of that court’s processes or, even, in the sense that they should be stayed by the foreign court on forum non conveniens grounds.
Nygh concludes (Nygh, Conflict of Laws in Australia 7th Edition) that “the power to grant an anti-suit injunction should not be exercised without the Court concerned first considering whether its own proceedings should be stayed”, citing the decision in Cigna. There the majority said further, at 397:
In a case in which an anti-suit injunction is sought on equitable grounds, the central question is whether the court to which application is made or some other court should hear and determine the matter in issue or, at least, that aspect of it involved in the application for injunction. And where the courts concerned are, respectively, an Australian court and a court of another country, there is involved in that question the further question whether the Australian court is an appropriate forum, in the Voth sense of it not being clearly inappropriate, for the determination of that matter. The fact that there is that further question, the preclusive nature of an interlocutory anti-suit injunction and the importance of comity combine to require an Australian court to consider whether it is appropriate, in the sense that it is not clearly inappropriate, for it to determine the matter in issue before granting an anti-suit injunction.
Further, as has been observed, comity should produce a general reluctance to interfere with the jurisdiction of other Courts. Consistent with that notion, “an injunction will not be granted merely because the forum in which the injunction is sought is more appropriate or considers itself to be the natural forum” (Nygh Conflict of Laws in Australia 7th Edition at 7.29 citing Société Nationale Industrielle Aerospatiale v Lee Kui Jack [1987] AC 871 at 895).
The joint majority judgment of the High Court in Cigna, at 396 makes it clear that “… the cases also emphasize that the power to grant injunctions in restraint of foreign proceedings should be exercised with caution. And that is so whether the injunction is sought in the exercise of the inherent or equitable jurisdiction”.
If, as plainly seems to be the law, this court must first consider whether “it is appropriate, in the sense that it is not clearly inappropriate, for it to determine the matter in issue before granting an anti-suit injunction”, attention must turn to the test to be employed in arriving at that assessment.
Henry confirmed, in the context of divorce applications, the test in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 as applicable in deciding whether this Court is an inappropriate forum. In the current context, the following passage from the judgment of the plurality in Henry is particularly important:
In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Son, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious in the sense of “productive of serious and unjustified trouble and harassment”. It was also held in Voth that in determining whether the local court is a clearly inappropriate forum, “the discussion by Lord Goff in Spiliada of relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance”. In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being “where the case may be tried ‘suitably for the interests of all the parties and for the ends of justice’”. (at 587)
In referring to the post-Voth decision of the Full Court of this Court in Gilmore v Gilmore (1993) FLC 92-353, the plurality in Henry went on to hold (at 589-591):
There is one other matter that should be observed with respect to the decision in Gilmore, a case involving proceedings both in Australia and in New Zealand. In their separate judgments, Fogarty J, with whom Finn J agreed, and Lindenmayer J criticised the “clearly inappropriate forum test” in its application to proceedings in the Family Court. Fogarty J expressed the view that the test might “lead to inconvenience, in that it will create the risk of parallel proceedings”. Lindenmayer J stated his belief that the clearly inappropriate forum test was “bound to lead to increased forum shopping and jurisdictional conflict” between the Courts of Australia and New Zealand …
There appears to be an assumption in Gilmore that the duplication of proceedings in another country is not, of itself, relevant to the question of whether Australia is a clearly inappropriate forum …
Foreign proceedings usually fall for consideration in a context in which they involve the same or related factual issues as those involved in the local proceedings, but not the same legal issue and, perhaps, not the same parties. Even in cases of that kind it may sometimes be appropriate to grant a temporary stay of the local proceedings to allow for the factual issues to be determined in the other jurisdiction. There are more compelling considerations in favour of a stay of the local proceedings if, as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings and the proceedings are between the same parties and with respect to the same issue or controversy.
Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different Courts in Australia … From the parties’ point of view, there is no less – perhaps, considerably more – inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.
It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious in the sense of “productive of serious and unjustified trouble and harassment”. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.
Nygh observes (op. cit. at 7.23), that, some two years later, the “same four Judges joined by Toohey and Kirby JJ” said in Cigna, (at 395):
Neither principle nor authority supports the view that the institution of foreign proceedings is, of itself, vexation or oppression, according to the principles of equity. Similarly, neither principle nor authority supports the view that foreign proceedings become vexatious or oppressive in accordance with those principles in the event that the party against whom they are brought later commences proceedings with respect to the same subject matter in this country.
Nygh goes on to say:
… Foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing to be gained by them over and above what might be gained in local proceedings [citing Cigna at 393]. Thus, plaintiffs in this position have been allowed to point to the different remedies that a foreign jurisdiction offers, or the tactical advantage of obtaining a Judgment which is effective against the Defendant’s assets, or simply considerations of convenience and expense in conducting the trial.
In my view, what emerges is that 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.
Frequently, though, there can, as a matter of discretion, be seen to be strong reasons for preventing the bifurcation of proceedings in such a manner. In the exercise of the discretion, an important consideration is the nature of each of those differing aspects of the same controversy and the remedies sought and available in respect of each. The evidence needed in support of those differing aspects of the controversy, and the availability of mutual recognition of each Court’s orders in each respect are, as the High Court has made clear, relevant matters.
Is Australia an Appropriate Forum?
I turn, then, to consider the requirement on this court “to consider whether it is appropriate, in the sense that it is not clearly inappropriate, for it to determine the matter in issue before granting an anti-suit injunction”.
The non-exhaustive list of matters relevant to the application of the “clearly inappropriate forum test” identified in Henry (at 592-593) is as follows:
1. Whether each Court will recognise the other’s orders and decrees.
2.Which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
3.The order in which the proceedings were instituted.
4.The stage at which the proceedings have each reached.
5.The costs that have been incurred by the parties.
6.The connection with the parties and their marriage with each of the jurisdictions.
7.The issues on which relief might depend in each of the jurisdictions.
8.The resources of the parties and their understanding of language enabling the parties to participate in the respective proceedings on an equal footing.
In emphasizing the non-exhaustive nature of those matters, the majority held that “ … the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved”.
The wife has lived in Spain post-separation with the two children and has, during that time been their primary carer. The husband concedes that situation should continue (provided the wife continues to live there), albeit with an agreed, or ordered, time and parental responsibility regime yet to be determined.
On the husband’s case, the position just described has pertained for almost three years; he posits separation as occurring in April 2007 when he moved to Australia. M was born in Spain and has resided there all his life. According to the wife, he speaks little English. S has now lived in Spain for over four-and-a-half years, since before he was five. He is bilingual.
The wife, on her case has remained in Spain since the husband moved back to Australia in April 2007. In the two-and-a-half years between April 2007 and July 2009 when the wife and children travelled to Australia to see the husband, the husband has: travelled to Spain for about three weeks in July/August 2007; travelled for four months, between November 2007 and March 2008 to Spain, Jamaica, New York, Boston, London and Switzerland; for two months between November 2008 and January 2009 travelled for two months in Spain, France and Switzerland and, for about three weeks in April/May 2009, visited the children in Madrid. The last country in which the parties last co-habited (see Henry at 593) was Spain.
Despite, on his case, separation occurring in April 2007, the husband took no steps to institute proceedings for Divorce as and from April 2008, or thereafter, until the wife instituted proceedings for that relief in Spain. The husband’s application for Divorce was filed about a month after the wife’s Spanish application for that decree.
The wife deposes in her affidavit that she instituted proceedings for ancillary relief in circumstances where the husband, who had been paying her 7000 Euros per month, ceased those payments in “early 2009” shortly prior to her instituting proceedings “without any prior warning to me”. The affidavit by the husband relied upon in the re-opened proceedings appears to dispute this and asserts continued financial support, in particular for the children.
Plainly, however, the wife’s proceedings in Spain for ancillary relief occurred first in time. In written submissions handed up at the first part of the hearing, the husband asserts that those proceedings “… occurred a little over a month before the instant suit was instituted”. So much is true, but it seems plain that the Australian proceedings instituted by the husband were responsive to the wife’s Spanish proceedings.
At the time of the initial part of the proceedings, each of the parties submitted that little progress had occurred in either the Spanish or Australian proceedings. The submission on behalf of the husband in light of the litigation that has now occurred in Spain has been referred to earlier. Whilst Mr Grieve’s description earlier quoted may be true in fact as far as it goes, expressing it in that way in my view masks the fact that proceedings in Spain have travelled significantly further down a path toward ultimate orders than the proceedings here.
Similarly, the submission that the husband has “recently paid $50,000 to the wife to enable her to defray [legal] costs”, whilst presumably true, masks a broader picture of a very significant difference in the parties’ respective resources; the wife deposes to the husband having assets in the approximate vicinity of $12.5 million with significant business interests in different countries. On the husband’s case, he has been able to supply the wife with $50,000 and to pay a significant sum by way of monthly support of one sort or another.
The husband apparently has limited Spanish. But the husband has been able to access Spanish lawyers; he has significant financial resources available to him; he is familiar with and, on the face of the material, is capable of engaging in entrepreneurial activities in, a number of different countries. The husband also does not adduce any evidence of any specific disadvantage likely to be suffered by him if the proceedings continue in Spain. The husband lived in Madrid for about two years and engaged in his business activities from there. His children live there, he has visited them there and seeks to visit them in the future.
The written submissions by Mr Beaumont on behalf of the wife in the first part of the proceedings addressed the potential for “overlap” of issues and evidence which might be relevant to financial proceedings in Spain (essentially spouse maintenance and child support) and what might also be relevant to property proceedings in Australia. Reliance was placed on the evidence of the expert Mr G and it was contended that the Spanish financial proceedings will have a different focus to those here: principally, it is said, the former will be much more concerned about the present.
It is submitted by Mr Beaumont that the case here is, factually, more similar to the decision of the Full Court in Kemeny and Kemeny (1998) FLC 92-806. In that case, the Full Court held:
5.3.6 The issues necessary to litigate maintenance proceedings would require an investigation of the current financial position of the parties and of each of their needs. The conduct of such litigation would only coincidentally touch upon issues necessarily raised in a re-litigation of their property entitlements …
5.3.7 In our view, this Court may be a clearly inappropriate forum to litigate one cause of action between parties whilst at the same time retaining jurisdiction to hear other disputes between the same parties. We would, for example, see 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 …
The extent to which a later and differently-constituted Full Court in Dobson relied upon the interrelationship between proceedings in Australia and Holland can be seen, for example, in the following passage of the judgment:
76. When regard is had to this interrelationship between proceedings and orders for property settlement, spousal maintenance and child support, we consider that it is vexatious and oppressive to commence and prosecute proceedings for spousal and child maintenance in a foreign court: when both parties are seeking orders for property settlement in this country; when identical issues relating to the parties’ financial positions and the needs of their children will need to be examined in all proceedings in question; and when all financial matters can be determined in this country.
While, as the High Court pointed out in Henry, “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”, that is not the end of the matter because, as that same court pointed out, a decision ultimately depends upon the circumstances of the case and “the true nature and full extent of the issues involved”.
In my judgment, while paying due regard to the fact that “… the unity of matrimonial causes should be the staring point …”(Dobson at para 48), the argument for bifurcation of proceedings is persuasive because the circumstances point to bifurcation as being in the interests of justice.
The children are living in Madrid and have been for some time. The father concedes they should remain there with their mother as their primary carer. Their social, educational and cultural touchstones exist in Spain. The parenting issues remaining to be determined should occur against that backdrop.
So, too, issues in respect of spousal and child support (as we might call them in this country) can be seen to depend on factors emanating from those living arrangements. For example, as Mr Beaumont submits, Mr G deposes that those issues, under Spanish law, are very much about the position of the wife now compared to her position during the marriage and the present income and wealth of the parties. Issues such as prospects of employment, likely levels of income, the extent to which income can be fitted with primary child-caring responsibilities and the like, can all be seen to be issues with a Spanish focus and within the ordinary province of the Spanish matrimonial courts.
The bulk of “the property of the parties or either of them” is in Australia. Mr Beaumont contends in written submissions that “questions of contribution will not arise”. The exact import of that statement was not explored. But whether it is entirely accurate or not, it seems to me that the determination of that issue is not made difficult, or more difficult, by parenting and other financial proceedings in Spain.
Plainly enough, the inclusion of s 75(2) as a component of the s 79 process in this Court renders spousal support issues as relevant to this court’s property determination. Mr Beaumont submits that any such issues only “coincidentally touch upon” spousal and child support issues (as that expression is used in the passage from Kemeny quoted above). I am not sure I agree that the use of that expression emphasises sufficiently the potential importance of “the s 75(2) factors” in any potential property settlement here. I am, though, persuaded that the conduct of those proceedings in Spain is not likely to impact significantly on (separate) property proceedings in this country.
The result of the analysis just outlined is a finding that Australia is an appropriate forum for the conduct of the proceedings currently before it, but not an appropriate forum for the proceedings initially instituted in Spain. Put in terms of principle: this court is a clearly inappropriate forum for the conduct of parenting, child support and spousal support proceedings. It is not a clearly inappropriate forum for the conduct of the property proceedings currently before it.
In respect of the divorce proceedings, it seems to me that the fact that they were first instituted in Spain, that further litigation has ensued in respect of them in that country, that minimal costs have been incurred in respect of Australian proceedings and the disconnection between a divorce application and the property proceedings in Australia all point to the Federal Magistrates Court being a clearly inappropriate forum for the divorce application.
Anti-Suit Injunction
When regard is had to the same issues just discussed, it can in my view be concluded that it is not vexatious or oppressive in the relevant sense for the wife to commence and prosecute proceedings for the relief sought in Spain.
Her proceedings, brought first in time, can in my view be seen as a natural consequence of she and the children having made their home in Spain for over three-and-a-half years before those proceedings commenced. They were certainly not in response to any proceedings brought (or, it seems, threatened) by the husband. (In that respect, it is worthy of note that the Full Court in Dobson appears to have placed significant reliance upon the fact that “the wife … having sought her own orders … in her response to the husband’s initiating application … in this country, had (virtually simultaneously, it seems) commenced other proceedings in a foreign jurisdiction in respect to [similar aspects] of the breakdown of the matrimonial relationship” (at par 41).
Further, as the High Court in both Henry and Cigna point out, a highly relevant (but not determinative) issue in the issuing of an anti-suit injunction is whether a party can be seen to derive a legitimate personal or juridical advantage in another jurisdiction. (See eg, Henry at 587).
Here, it is submitted that there are personal and juridical advantages for the wife in the Spanish proceedings. Relying on the report from Mr G, counsel for the wife submits in respect of child support that, “…the remedy that a Spanish Court will grant is superior to and more easily accessed …”. In essence, the Spanish position might be seen as being akin to child maintenance proceedings in Australia prior to the introduction of administrative assessment of child support.
Secondly, it is submitted that Spanish “spousal maintenance” (referred to by Mr G as being centred in “compensation”) is “superior” from a recipient’s point of view to Australian spousal maintenance. Mr G deposes that the Spanish notion of “compensation” is paid “if the divorce involves an imbalance with the other member of the couple and worsening of his/her former situation during the marriage” and goes on to say that award may be a pension (for a limited or unlimited period) or a single payment.
I am uncomfortable in making a positive finding of the “superiority” of one system of law over the other in circumstances where it is clear that there are differences in the applicable principles, but where there is no evidence from which I can reliably conclude how that might sound precisely in a financial remedy.
However there do appear to me to be “personal advantages” associated with pursuing proceedings in the Spanish court, including those emanating from an acquired familiarity of place and cultural milieu. So, too, I consider there are advantages in a Spanish system governing the potential for payments to mother and child in circumstances where the evidence is that the mother has no intention of living with the children other than in Spain.
In my view, the anti-suit injunction should not issue.
Conclusion
For the reasons discussed, in my view a stay should be ordered in respect of Australian proceedings (including divorce) other than those relating to settlement of property.
With the intention that the wife should be at liberty to pursue in Spain her applications for divorce and ancillary relief, the husband’s application for anti-suit injunction should be dismissed.
Directions should issue for the further progress of the competing applications for settlement of property.
I order accordingly.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 28 April 2010
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