Twardowski and Twardowski and Anor - [2017] FamCA 1098

FAMILY COURT OF AUSTRALIA

TWARDOWSKI & TWARDOWSKI & ANOR

[2017] FamCA 1098

FAMILY LAW – JURISDICTION – Clearly inappropriate forum – oppressive proceedings – where the parties have already taken a remedy in the foreign jurisdiction

Family Law Act 1975 (Cth)

Gilmore v Gilmore (1993) 110 FLR 311 Henry v Henry (1996) 185 CLR 571 Kima v Kima [2017] FamCA 401 Kennon v Spry [2008] HCA 56 Oceanic Sun Line Special Shipping Co. Inc. v Fay (1988) 165 CLR 197 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
APPLICANT:	Ms Twardowski

1st RESPONDENT:

Mr A Twardowski

2nd RESPONDENT:

Mr B Twardowski

FILE NUMBER:

CAC

1969

2016

DATE DELIVERED:

22 December 2017

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

26 May 2017, 2 June 2017 and 24 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Knox, SC

SOLICITOR FOR THE APPLICANT:

Neilan Stramandinoli Family Law

COUNSEL FOR THE 1^ST AND 2^ND RESPONDENTS:

Mr Buckland on 2 June 2017 and Mr Howard on 24 October 2017

SOLICITOR FOR THE 1^ST AND 2^ND RESPONDENTS:

Drexler Litigation Lawyers

Orders

The application of the wife commencing property proceedings in the Family Court of Australia is dismissed on the basis that Australia is a clearly inappropriate forum;
In the event that a party seeks orders consequential to Order 1 that party is to file and serve any application and further material in support within 21 days of the date of these Orders.

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 Twardowski & Twardowski and Anor 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 CANBERRA

FILE NUMBER: CAC 1969 of 2016

Ms Twardowski

Applicant

And

Mr A Twardowski

First Respondent

And

Mr B Twardowski
Second Respondent

REASONS FOR JUDGMENT

The parties in this matter are the wife, Ms Twardowski, the husband Mr A Twardowski and the husband’s brother Mr B Twardowski (the second respondent). The husband and wife commenced their relationship in Poland in about 1983, subsequently moving to Australia and becoming Australian citizens. They retained their Polish citizenship. In 1997 they separated and each left Australia. They reconciled in about 2001 in Poland. In 2005 they entered into what has been referred to in these proceedings as the “legal document” (the legal document) in Poland which purported to govern the framework under which each would own the property of the marriage. The husband and wife again separated…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Twardowski and Twardowski and Anor

Details

AGLC: Twardowski and Twardowski and Anor [2017] FamCA 1098
Case: [2017] FamCA 1098
Decision Date: 22 December 2017

CaseChat Overview and Summary

In *Twardowski and Twardowski and Anor*, the wife commenced property proceedings in the Family Court of Australia. The application was opposed by the husband and the second respondent.

The central legal issue before the Court was whether Australia was the appropriate forum for the property proceedings. The Court was required to determine if it should exercise its jurisdiction, or if it was a clearly inappropriate forum.

Gill J found that Australia was a clearly inappropriate forum. The reasoning for this determination is not detailed in the provided text, but the outcome indicates that the Court concluded that the proceedings should not continue in Australia.

Consequently, the wife's application commencing property proceedings in the Family Court of Australia was dismissed. Any party seeking consequential orders was to file and serve their applications and supporting material within 21 days of the date of the orders.

Orders

Orders of the court

The application of the wife commencing property proceedings in the Family Court of Australia is dismissed on the basis that Australia is a clearly inappropriate forum;

In the event that a party seeks orders consequential to Order 1 that party is to file and serve any application and further material in support within 21 days of the date of these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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