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

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

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.
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…

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 Underwood and Underwood

Details

AGLC: Underwood and Underwood [2017] FamCA 378
Case: [2017] FamCA 378
Decision Date: 10 April 2017

CaseChat Overview and Summary

In the Family Court of Australia, Johnston J heard proceedings between a husband and wife concerning financial matters and parenting arrangements. The wife had initiated proceedings in the Circuit Court of B County, Illinois, USA, for dissolution of marriage, while the husband had commenced financial proceedings in the Family Court of Australia. The wife sought to permanently stay the Australian financial proceedings, and the husband sought an anti-suit injunction.

The court was required to determine whether to grant the wife's application for a permanent stay of the Australian financial proceedings and the husband's application for an anti-suit injunction. Additionally, the court needed to make orders regarding the process for obtaining expert evidence on Illinois law, the management of the parenting application, and the listing of the forum proceedings for hearing.

Johnston J made orders restraining the wife from continuing to seek orders in the US proceedings until further order. By consent, the court made detailed orders concerning the appointment of a single expert to provide a report on relevant aspects of Illinois law, including the exchange of proposed experts, draft letters of instruction, and the filing of the expert's report. The parenting application was to be placed in the Child Responsive Program, and parties were to obtain appointments with a Family Consultant. The forum proceedings were to be listed for hearing after 1 June 2017, and the parenting proceedings were adjourned for directions by the Registrar.

Orders

Orders of the court

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.

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.

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.

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

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.

Background

Background to the litigation

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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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