Twardowski & Twardowski And Anor - [2018] FamCAFC 153

FAMILY COURT OF AUSTRALIA

TWARDOWSKI & TWARDOWSKI AND ANOR

[2018] FamCAFC 153

FAMILY LAW – APPEAL – FINANCIAL – FORUM – Where the primary judge erred in his characterisation of an agreement governing the parties’ division of marital property and made findings that were unsupported by the evidence – Where the primary judge erred in his approach to whether Australia was a clearly inappropriate forum – Where the parties conceded error by the primary judge as to the characterisation of the agreement – Appeal allowed – Consent orders made – Costs certificates granted.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9

B & B (Cost Certificates) (2007) FLC 93-339; [2007] FamCA 1177
Cramer v Davies (1997) 72 ALJR 146

APPELLANT:

Ms Twardowski

FIRST RESPONDENT:

Mr A Twardowski

SECOND RESPONDENT:

Mr B Twardowski

FILE NUMBER:

CAC

1969

2016

APPEAL NUMBER:

2018

DATE DELIVERED:

10 August 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Canberra

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

19 July 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 December 2017

LOWER COURT MNC:

[2017] FamCA 1098

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Curran

SOLICITOR FOR THE APPELLANT:

Neilan Stramandinoli Family Law

COUNSEL FOR THE FIRST RESPONDENT:

Mr Buckland

SOLICITOR FOR THE FIRST RESPONDENT:

Drexler Litigation Lawyers

SECOND RESPONDENT:

In person

Orders made 19 July 2018

Appeal EA 17 of 2018 be allowed.
The orders made by Gill J on 22 December 2017 be set aside.

IT IS ORDERED BY CONSENT:

The Initiating Application for interim and final orders filed by the appellant on 1 December 2016 be stayed pending further order.
The appellant and first respondent will do all things necessary to progress, and seek an expedition of, the first respondent’s application for division of gained property in Poland.
Any of the parties be at liberty to apply, on five (5) business days’ notice, for the discharge of the stay referred to in Order 3.
The first and second respondents forthwith and within 28 days, and on an ongoing basis, provide to the appellant all documentation in relation to:
a)   The property at J Street, Suburb F in the State of New South Wales, more particularly described in Folio Identifier Lot … (“the Suburb F Property”);
b)     H Pty Ltd (ACN …) (“H Pty Ltd”);
c)   J Street, Suburb F Pty Ltd (ACN …) (“Suburb F Pty Ltd”); and
d)     The Twardowski Family Trust (“the Trust”).
The documents referred to in Order 6 above shall include but not be limited to:
a)   All company documents and records, including the Constitution of H Pty Ltd;
b)     Financial Statements;
c)   Bank accounts;
d)     Rental agreements with tenants and/or agents managing the Suburb F property;
e)   Accounts and expenses; and
f)   Any other document relating to either entity, the Trust or the Suburb F property.
The first and second respondents are to, within 28 days of receiving a written request by the appellant, provide documentation with…

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 & Twardowski And Anor

Details

AGLC: Twardowski & Twardowski And Anor [2018] FamCAFC 153
Case: [2018] FamCAFC 153
Decision Date: 10 August 2018

CaseChat Overview and Summary

In the case of Twardowski & Twardowski And Anor, the Full Court of the Family Court of Australia addressed a dispute concerning the jurisdiction of the Family Court to hear a property settlement matter where the parties had previously sought and obtained a property settlement order in Poland. The wife sought to revisit the matter in Australia on the basis of an Australian property asset, arguing that the Polish order did not fully address the property interests arising from the marriage. The primary judge dismissed the wife's application on the basis that the proceedings in Australia conflicted with the remedy already obtained in Poland, and that continuing the matter in Australia would be oppressive.

The legal issues before the court included whether the Family Court of Australia had jurisdiction to hear the matter, given the prior Polish order, and whether the primary judge correctly interpreted and applied the relevant Polish law. The court also considered whether the primary judge appropriately assessed the oppressiveness of continuing the matter in Australia and whether the primary judge correctly characterised the effect of the 2005 agreement under Polish law.

In considering these issues, the Full Court found that the primary judge had erred in characterising the 2005 agreement and in making findings about its effect that were not supported by the evidence. The court noted that the primary judge’s conclusions about the Polish court’s jurisdiction and the finality of the Polish remedy were also mischaracterisations of both the agreement and the evidence. While the Full Court found these errors, it concluded that they did not affect the primary judge's ultimate conclusion that the Australian proceedings were oppressive and that Australia was not an appropriate forum. Consequently, the Full Court upheld the primary judge’s decision.

The Full Court's final orders were to affirm the dismissal of the wife's application, finding that the primary judge's determination that the Australian proceedings were oppressive and that Australia was not an appropriate forum remained valid despite the identified errors.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

His Honour then said: 30. It may be seen that no further remedy to adjust property interests on the basis of the parties’ marriage is available in Poland. This is not the same as saying that no remedy is available. Rather, the remedy has been taken. …Conclusion33. The proceedings commenced in Australia by the wife conflict with the remedy obtained under Polish law by the parties to regulate their property position by virtue of their matrimonial relationship. The particular item of property that she says should ground the jurisdiction of the Family Court of Australia has already been the subject of remedy under Polish law.34. This is an attempt to revisit under Australian law a remedy already obtained in Poland. The conduct of proceedings in Australia under those circumstances would be oppressive such as to render Australia a clearly inappropriate forum. Thus the primary judge dismissed the wife’s application. While the notice of appeal contained ten grounds challenging his Honour’s orders, the thrust of the appeal was that the primary judge mischaracterised the 2005 agreement and its effect, made findings of fact about the operation of Polish law which were unsupported by the evidence before him, erred in his articulation and application of the relevant law and, rather than determine the issue of forum, determined the dispute between the parties. We agree that the primary judge erred in his characterisation of the 2005 agreement and made findings about that agreement which were unsupported by the evidence. By way of example, his Honour found at [20] that the Polish Court was likely to categorise the property located within Australia as other than real property, on the basis it is shares in a Proprietary Limited Company that are owned rather than real property directly. The location of this property, its genesis and governance within Australia, means that if the Polish Courts exercised jurisdiction it would likely be by the application of Australian law[.] Both counsel for the wife and husband agreed that this proposition was not established by the expert evidence. Nor was his Honour’s subsequent finding at [21] that the Polish Courts have “jurisdiction in relation to the whole of the property of the parties, although they are not required to exercise it in respect of the Australian property” supported by the expert evidence. It was further agreed that the finding at [25] that “no further relief is available in Poland” mischaracterised the 2005 agreement as being a source of “relief”, whereas the expert’s evidence was that in light of the 2005 agreement, it was “unlikely” that the parties would be successful in obtaining further orders in relation to their marital property. Equally it was agreed that the conclusion at [32] that the proceedings in Poland have “already concluded in relief” was also a mischaracterisation both of the effect of the 2005 agreement and the evidence of the expert as to the Polish court’s application of it.

Ratio Decidendi

Legal Principle Established

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