Underwood and Underwood

[2017] FamCA 378

FAMILY COURT OF AUSTRALIA

UNDERWOOD & UNDERWOOD [2017] FamCA 378

FAMILY LAW – INJUNCTION – Application by the husband to restrain the wife from continuing to seek orders in family law proceedings commenced by her in the United States of America – Where the material before the Court establishes that the parties have strong connecting factors with Australia – Where the husband presents an arguable case for the opportunity to ventilate a forum dispute – Order that the wife be restrained from continuing to seek orders in proceedings commenced by her in the United States of America.

APPLICANT: Mr Underwood

RESPONDENT: Ms Underwood

FILE NUMBER: SYC 1170 of 2017

DATE DELIVERED: 10 April 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 10 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Ryan QC with Mr Hand

SOLICITOR FOR THE APPLICANT: Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Sproston

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. Until further order, the wife be restrained from continuing to seek any orders in the proceedings commenced by Summons and Petition for Dissolution filed by the wife on 23 January 2017 in the Circuit Court of B County, Illinois, County Department, C Division in the United States of America.

2. BY CONSENT orders be made in accordance with the handwritten minute of orders filed in Court today signed by me and placed with the Court papers at paragraphs 1 to 13 therein as set out below:

   1.That the lawyer for the wife forward to the lawyer for the husband a list of the names, contact details and resume of qualifications and experience of proposed single experts to provide a report with respect to relevant aspects of Illinois law, and a draft letter of instruction to the expert within 14 days.

   2.That within 7 days of the date of receipt from the wife's lawyer of the list of names of proposed experts, the lawyer for the husband must confirm to the lawyer for the wife, the expert selected by the husband together with any amendments they propose to be made to the draft letter of instruction to the expert ("the expert").

   3.That the parties have liberty to relist the matter if there is no agreement on the proposed single expert or the letter of instruction to the expert.

   4.That the lawyer for the wife must forward the letter of instructions to the expert within 3 days after agreement is reached on the identity of the expert and the letter of instruction to the expert.

   5.That the parties must file and serve a report by the expert with respect to the relevant aspects of Illinois law within 3 days of its receipt.

   6.The parties must ensure that the single expert nominated is an expert with specialised knowledge based on that person's training, study or experience with respect to the relevant identified issues requiring expert evidence.

   7.That the parenting Application be placed in the Child Responsive Program and the parties approach the Family and Counselling Services within 3 days to obtain appointments with a Family Consultant for the preparation of a Family and Issues Assessment Memorandum.

   8.That the parties instruct the expert to prepare and return a report as soon as possible.

   9.The Wife file and serve within 14 days of the date the report issues from the expert any further evidence on which she would seek to rely in support of her application that the financial proceedings commenced by the Husband on 24 February 2017 in the Family Court of Australia be permanently stayed.

   10.The Husband file and serve within 14 days of receipt of the evidence referred to in order 9 hereof any further evidence on which he would seek to rely in support of his application for an anti-suit injunction.

   11.The Wife file and serve within seven days of the date of the receipt of the Husband's evidence filed in accordance with order 10, a summary of argument in support of her application that the financial proceedings commenced by the husband on 24 February 2017 in the Family Court of Australia be permanently stayed, such written submissions not to exceed 10 pages in length.

   12.The Husband file and serve within seven days of receipt of the summary of argument referred to in order 11 hereof a summary of argument in opposition to the Wife’s application for a stay and in support of his application for an anti-suit injunction, such written submissions not to exceed 10 pages in length.

   13.The Wife serve any submissions in response to the Husband’s submissions referred to in order 12 above, within five days of receipt of those submissions. The responsive submissions are not to exceed four pages in length.

3. That the forum proceedings be included in the list of cases awaiting allocation of one day’s hearing time by the Judicial Services Manager not prior to 1 June 2017.

4. That the parenting proceedings be adjourned for directions by the Registrar by telephone attendance at 8.30 am on 28 April 2017. 

IT IS ORDERED IN CHAMBERS

1. To access the telephone conference at 8.30 am on 28 April 2017 dial … and after the prompt enter the guest code which is … (include the hashtag button).

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 Underwood & Underwood 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 SYDNEY

FILE NUMBER: SYC 1170 of 2017

Mr Underwood

Applicant

And

Ms Underwood

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parties in these proceedings are Mr Underwood and Ms Underwood, to whom for convenience I shall refer as “the husband” and “the wife”. 

2. The matter which is in contest immediately is an application by the husband for an order that until further order the wife be restrained from continuing to seek orders in proceedings which are continuing between the parties in the C Division of the Circuit Court of B County, Illinois, in the United States of America (“the US”).  In those proceedings the wife is seeking orders in relation to dissolution of marriage, parenting arrangements for the parties’ children, child support, spousal maintenance, provision for legal fees and property settlement.  The application for the restraining order is opposed by the wife. 

3. The wife in turn seeks a stay of proceedings in this Court, at least insofar as they relate to financial matters.  

4. Broadly speaking, these are proceedings in relation to the forum in which proceedings between these parties ought to be heard.  Each party seeks by way of substantive order that the other proceedings be stayed.

Background   

1. The brief background matters are that the husband was born in 1960.  The wife was born in 1964.  The parties married in 1993.  They separated on 2 January 2017.  There are three children of the marriage, D, who was born in 1998, E, who was born in 2001, and F, who was born in 2004.  The parties are Australian citizens, both having been born here. 

2. They have lived in, and worked in, Australia until they moved to the United Kingdom for the purposes of the husband’s employment in August 2010. 

3. In August 2012 the parties moved to G Town outside of City H in the US. 

4. The wife and the children were granted Green Cards in March 2014.  Green Cards permitted them to live in and work in the US.  In June 2015 the Green Cards lapsed.  At that time the wife moved back to Australia with the children.  The husband continued to live in, and work in, the US. 

5. In September and December 2015 the husband travelled to Australia and spent the school holidays with the wife and the children as he also did in March, June/July and December 2016. 

6. In January 2017 the wife commenced the proceedings in the US.  The husband has filed a notice of appearance in those proceedings. 

7. What the husband is seeking is an injunction to restrain the wife from continuing the US proceedings but only to operate for a brief period until these proceedings can next be before the Court.  On the basis of the material before the Court which establishes that the parties have strong connecting factors with Australia, including that they and the children were all born here, they have property here and the wife and children are currently residing here, in my view, the husband presents an arguable case for his opportunity to ventilate his application in this Court in respect of the forum. 

8. It is said on behalf of the wife that there are interlocutory matters of some urgency in the US, those matters going to discovery and inspection in the US proceedings.  I must say I have not been persuaded that those matters are of such great importance and immediacy that the Court needs to determine the forum issue at this point. 

9. It is said that the wife is seeking to have the proceedings in Australia stayed, at least so far as they relate to financial issues.  My understanding is that the wife also seeks bifurcation of the proceedings.  In other words, notwithstanding having filed her application in the US which appears to include seeking orders about parenting arrangements for the children, the wife now asks this Court apparently to determine the parenting aspect of this matter, and the parties would then remain at issue about forum only in respect of financial matters. 

10. In all the circumstances, in my view, the husband has made out his application for the injunction. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered 10 April 2017.

Associate:    

Date:  31 May 2017