Vigano and Houghton
[2009] FMCAfam 144
•27 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VIGANO & HOUGHTON | [2009] FMCAfam 144 |
| FAMILY LAW – Application by wife for an anti-suit injunction – where the wife has commenced family law proceedings in Australia and the husband has commenced family law proceedings in the United States – whether the husband has or should be permitted to register in Australia the parenting orders he obtained in the United States. |
| Family Law Act 1975, ss.34, 70G, 70H, 70J, 70L Family Law Regulations, reg.23 |
| B & B (Re Jurisdiction) (2003) FamCA 105 CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345 D and L (2005) FLC 93-225 EJK & TSL (2006) FamCA 730 Henry v Henry (1996) FLC 92-885 Lederer & Anor and Hunt (2007)FLC 93-311 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
| Applicant: | MS VIGANO |
| Respondent: | MR HOUGHTON |
| File number: | PAC 528 of 2008 |
| Judgment of: | Terry FM |
| Hearing date: | 17 October 2008 |
| Date of last submission: | 17 October 2008 |
| Delivered at: | Darwin |
| Delivered on: | 27 February 2009 |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr Quinn |
| Solicitors for the Applicant: | John R Quinn & Co |
| Counsel for the Respondent: | Mr Dura |
| Solicitors for the Respondent: | Cameron Gillingham Boyd |
ORDERS
That the husband is restrained and an injunction is granted restraining him from doing any act or thing or giving any instructions to register in Australia or to enforce the interlocutory order made on 17 September 2008 by the Superior Court of Fayette County in the State of Georgia in proceedings No. 2008-V-0749.
That the husband is restrained and an injunction is granted restraining him from proceeding with the application filed on 8 May 2008 in the Superior Court of Fayette County in the State of Georgia, United States of America.
IT IS NOTED that publication of this judgment under the pseudonym Vigano & Houghton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth)
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 528 of 2008
| MS VIGANO |
Applicant
And
| MR HOUGHTON |
Respondent
REASONS FOR JUDGMENT
The dispute
In December 2007, after ten years in the United States, Ms Vigano returned to Australia, bringing with her the four children of her marriage to Mr Houghton.
The husband consented to the wife returning to Australia with the children. This is not an abduction case.
On 1 February 2008, the wife filed an application in the Federal Magistrates Court at Parramatta seeking parenting orders. She did not serve the husband with her application until July 2008. In the meantime, the husband had commenced proceedings in the Superior Court of Fayette County in Georgia USA, seeking a divorce, property settlement, parenting orders, alimony and child support. These proceedings were served on the wife in June 2008.
Each party wishes the family law proceedings to be heard in their chosen jurisdiction.
By an amended application filed on 5 August 2008 the wife sought an anti-suit injunction against the husband.
On 18 August 2008, Henderson FM in the Federal Magistrates Court at Parramatta made the following order:-
“The matter is listed for interim hearing on 17 October 2008 at 10.00am on the jurisdictional issue being whether these proceedings are to be litigated in the United States of America or Australia.”
The only application before me on 17 October 2008 was the wife’s application for an anti-suit injunction. During submissions the husband’s counsel said that the husband had filed a Response seeking a stay of the Australian proceedings but there is no such Response on the court file.
The evidence
The wife relied on the following documents:
a)her further amended initiating application filed on 17 October 2008;
b)
her affidavits filed on 1 February 2008, 5 August 2008 and
17 October 2008;
c)the affidavit of her mother Ms V filed on 1 February 2008;
The husband relied on:
a)his affidavit filed on 13 October 2008;
b)the affidavit of his solicitor Gail Sherlock filed on 17 October 2008.
The matter proceeded by way of submissions.
The background facts
The husband and wife are both of Australian birth and upbringing. They married in Sydney in 1988. There are four children of the marriage: [W], who is about to turn 16, [X], 13, [Y], 10 and [Z], 6.
[W] and [X] were born in Australia. In 1998, the wife, husband, [W] and [X] went to live in the United States of America because of the husband’s employment.
Between 1998 and December 2007 the parties lived continuously in the USA, although they visited Australia regularly on holiday. [Y] and [Z] were born in the USA.
The wife and the husband are Australian citizens. The children are also Australian citizens, although [Y] and [Z] have dual citizenship.
The wife gave the following background to her return to Australia. She said that she and the husband had separated under one roof in July 2006, and that by late 2007 she wanted to return home. The wife said that the husband not only agreed to her returning with the children but said that he would follow her to Australia once he had tied up his business interests in the USA.
The husband put a different slant on the situation surrounding the wife’s return to Australia. He denied that he and the wife were ever separated under one roof although he conceded that from July 2006 onward the marriage was unhappy. He said that in late 2007 he agreed to the wife returning to Australia with the children because she held out hope to him that if this happened the marriage could be saved. He said in his affidavit that “I was unable to move back to Australia at that time. The timing was very bad because I had to close down my business and estimated that this would take at least nine months.” [1]
[1] Husband’s affidavit filed 13 October 2008 paragraph 25.
The husband said that he did not consider the marriage over until
24 January 2008when he arrived in Australia and discovered that the wife had commenced a new relationship.
I cannot make any findings about what was in the minds of each party in late 2007 when arrangements were made for the wife and children to return to Australia. It may be true that the husband did not consider the marriage over until January 2008, in the sense that he had not finally given up hope of reconciliation. I do note however that when he filed his application in the Superior Court of Fayette County, the husband swore that the parties had “lived in a bona fide state of separation”[2] since 8 December 2007.
[2] Annexure E to Husband’s affidavit filed 13 October 2008.
The wife and children left the United States on 8 December 2007, and arrived in Australia on 10 December 2007.
There can be no doubt that in December 2007 both the husband and the wife considered that the return of the wife and children to Australia was to be permanent. The children’s clothes and toys, the wife’s clothes and personal effects and a large quantity of household furniture were packed into a shipping container and sent to Australia. The husband admitted that he and the wife “agreed…that the return should be timed to allow the children to enrol in their new schools in Australia in January 2008.”[3] He said that he “paid the expenses associated with the relocation, totalling about AUS$22,000”[4]
[3] Husband’s affidavit filed 13 October 2008 paragraph 25
[4] Husband’s affidavit filed 13 October 2008 paragraph 27
Later in his affidavit he said that he had paid “relocation expenses for the applicant and children of $42,499.00.”[5]
[5] Husband’s affidavit filed 13 October 2008 paragraph 36(2)(c)
Upon arrival in Australia the wife and children settled into rented accommodation. In late January 2008, the husband travelled to Australia. He apparently expected to spend time with the wife and children, but discovered upon his arrival that the wife had formed a new relationship. The wife is silent in her affidavits about any new relationship, but the maternal grandmother’s affidavit provides some corroboration for the husband’s evidence that the wife had commenced a new relationship.
Although the husband was still able to spend time with the children while he was in Australia, he was upset and angry about what he perceived to be the situation in Sydney. He contacted the shipping company and requested that the container (which had just arrived in Sydney) be sent back to the USA. Shortly thereafter the husband returned to the USA himself.
The wife was able to prevent the container being sent back to the USA, but as the husband would not agree to her accessing it, it sat untouched in storage until August 2008, when the wife obtained a court order for its release to her.
During 2008 the children lived with the wife in [T]. The three youngest children attended [T] Primary School and [W] attended [K] High School.
The wife’s long term proposal is that the children should continue to live with her in Sydney and (unless otherwise agreed) spend time with the husband when he visits Australia.
The husband has remained living in Georgia, USA. He has not filed a response in the Australian proceedings but it is clear from his affidavit that he considers that the children should return to the United States to live with him.
The husband is critical of the wife’s parenting. He said that three of the children had expressed a wish to return to live in the USA. The husband said that he could make satisfactory arrangements for the care and education of the children in the USA.
The litigation history
On 1 February 2008, the wife filed an application in the Federal Magistrate Court at Parramatta. The only final orders she sought were that the husband be restrained from removing the children from Australia and that the children’s names be placed on the airport watch list. She also sought interim orders that the children live with her, and that service of the application of the husband be dispensed with.
The wife did not serve this application on the husband prior to the first return date.
On the first return date of 21 April 2008, the wife appeared in the Federal Magistrates Court in person. An ex-parte order was made that neither party remove the children from Australia, and that the children’s names be placed on the airport watch list. The wife was ordered to serve the husband, and her application was adjourned to
7 July 2008for further consideration.
The wife did not serve the husband however and on 8 May 2008 the husband filed an application in the Superior Court, Fayette County in Georgia USA seeking a divorce, parenting orders, property settlement and alimony and child support.
In that application, the husband said that he had no knowledge of any other court proceedings. There is no reason, on the evidence presently before me, to doubt that this is true.
The husband’s application was served on the wife in Australia on
13 June 2008. The wife has never entered an appearance in the Georgia proceedings, nor taken part in any events in the Superior Court of Fayette County.
On 7 July 2008 the wife again appeared in person in the Federal Magistrates Court at Parramatta. She conceded that she had still not served her application on the husband. She did not disclose the existence of the proceedings in the United States. The wife was again ordered to serve the husband, and her proceedings were adjourned to 18 August 2008.
In late July 2008 the husband was served with the wife’s application and affidavit, and he was also given a copy of the order of 21 April 2008. On 5 August 2008 the wife amended her application to seek comprehensive parenting orders and also an anti-suit injunction.
When the matter came before Henderson FM in the Federal Magistrates Court at Parramatta on 18 August 2008, both the wife and husband were represented, and it appears that the husband was present in Australia.
Henderson FM (after making orders about the release of the container) made the following procedural orders:
“4. The matter is listed for interim hearing on 17 October 2008 at 10.00am on the jurisdictional issue being whether these proceedings are litigated in the United States or Australia.
5.The husband file and serve his material by 26 September 2008.
6.The wife to reply by 10 October 2008.”
The husband returned to the USA. On 17 September 2008 he obtained the following order from the Superior Court of Fayette County:
“Plaintiff [Mr Houghton] is hereby granted immediate temporary legal and physical custody of the parties’ minor children. Defendant [Ms Houghton] is ordered to immediately surrender custody of the said children together with their passports to Plaintiff [Mr Houghton] and the children are to be immediately returned to the State of Georgia for further proceedings in accordance with this Order.”
There is nothing in the husband’s material to suggest that prior to these orders being made he informed the Superior Court of Fayette County of the existence of the Australian proceedings, or of the order made on 21 April 2008 that neither party remove the children from Australia, or of the fact that the wife had applied in Australia for an anti-suit injunction or that this application was listed for hearing in the Federal Magistrates Court at Parramatta on 17 October 2008.
On 16 October 2008, the husband’s Australian lawyers wrote to the Registrar of the Federal Magistrates Court at Parramatta, enclosing a certified copy of the Georgia order and requesting that the order be registered pursuant to Regulation 23(6) of the Family Law Regulations. On 17 October 2008 the order was filed in this court attached to an affidavit of the husband’s solicitor Gail Sherlock.
On 17 October 2008 the wife amended her application to seek an order that the husband be restrained from taking any steps to enforce the Georgia order.
Is the Georgia order registered in Australia, and if so, does that put an end to the wife’s application for an anti-suit injunction?
The husband’s counsel submitted that:
i)as a result of a certified copy of the Georgia order having been sent to the Registrar by the husband’s solicitor, or alternatively as a result of it having been filed in this court attached to the affidavit of the husband’s solicitor, the Georgia order was effectively registered in this court;
ii)this court therefore could not exercise jurisdiction in relation to the children unless both parties consented, or there were substantial grounds for believing that the children’s welfare required the court to exercise jurisdiction;
iii)neither of these considerations applied;
iv)the Australian court was therefore prevented by the registration of the Georgia order from making parenting orders, and therefore the Australian court was a clearly inappropriate forum for the conduct of the parenting proceedings;
v)the wife’s only application in the Australian court was for parenting orders and it followed therefore that the wife’s application for an anti-suit injunction should be dismissed.
For a number of reasons I do not accept these submissions.
Section 70G of the Family Law Act provides that the Family Law Regulations may make provision for overseas child orders to be registered in courts in Australia.
Pursuant to s.70H, once an overseas child order is registered it has the same force and effect as if it were an order made pursuant to the parenting provisions of the Family Law Act.
Section 70J provides as follows:
(1) A court in Australia that is aware that an overseas child order is registered under section 70G must not exercise jurisdiction in proceedings for the making of a Subdivision C parenting order in relation to the child concerned unless:
(a) each person:
(i) with whom the child is supposed to live; or
(ii) who is to spend time with the child; or
(iii) who is to have contact with the child; or
(iv)who has rights of custody or access in relation to the child;
under the overseas order consents to the exercise of jurisdiction by the court in the proceedings; or
(b)the court is satisfied that there are substantial grounds for believing that the child's welfare requires that the court exercise jurisdiction in the proceedings.
(2)If a court exercises jurisdiction in proceedings for a Subdivision C parenting order in relation to a child who is the subject of an overseas child order, the court must not make a Subdivision C parenting order in relation to the child unless it is satisfied:
(a)that the welfare of the child is likely to be adversely affected if the order is not made; or
(b)that there has been such a change in the circumstances of the child since the making of the overseas child order that the Subdivision C parenting order ought to be made.
I do not accept that mere filing of a certified copy of the order attached to the husband’s solicitors affidavit or the sending of a certified copy of the order to the Registrar attached to a covering letter means that the Georgia order is registered in this court.
Regulation 23 of the Family Law Regulations deals with registration of overseas orders. It provides that if the Secretary of the Attorney-Generals Department receives a prescribed overseas order and the provisions of Section 23(1) are met, the Secretary must send the documents to the relevant Registrar and the Registrar shall register the order.
This procedure has not been followed in this case.
Pursuant to Regulation 23(6), if the Registrar receives an order other than from the Secretary, the Registrar may register the order if all the other requirements of Regulation 23(1) are met.
Regulation 23(6) gives the Registrar discretion about whether to register the order. It therefore cannot be the case that the mere sending of a certified copy of the order to the Registrar or the mere filing of a certified copy of the order attached to an affidavit results in the order being registered.
There was no evidence that as at 17 October 2008 the Registrar had exercised his or her discretion to register the order sent to him or her by the husband’s solicitors.
In any event, given the circumstances in which the Georgia order was obtained by the husband and registration sought, in my view the court would have the power, pursuant to its implied power to prevent an abuse of its processes, to revoke registration of the order if it was in fact found to have been registered.
When the husband obtained the Georgia order on 17 September 2008, he was well aware not only that parenting proceedings were on foot in Australia but that the Australian court had listed the wife’s application for an anti-suit injunction for hearing on 17 October 2008.
The husband’s action in obtaining the Georgia order on 17 September 2008 and then attempting to register it in Australia prior to the
17 October 2008 hearing, was nothing less than a pre-emptive strike made in the hope of defeating the wife’s application for an anti-suit injunction before it could even be heard.
Another problem for the husband is that registration of the Georgia order in Australia would not be the end of the matter as far as parenting issues are concerned, because there is a conflict between the Georgia order and the Australian order made on 21 April 2008.
The Australian order prohibits either parent from removing the children from Australia. The Georgia order requires the children to be returned to the State of Georgia.
If registration of the Georgia order proceeds, the court will be faced with two conflicting orders, and either a responsible person under the Georgia child order or a responsible person under the Australian child order will have to make application to the court pursuant to s.70L for discharge or cancellation of one of the orders. It therefore does not follow that registration of the Georgia order will leave the Australian court with nothing to do.
Should the husband be restrained from taking any steps to register or enforce the Georgia order?
I am satisfied that this court has the power to grant an injunction restraining the husband from taking any steps to register or enforce the Georgia order in Australia, either pursuant to the court’s equitable jurisdiction to restrain inequitable conduct and pursuant to the court’s inherent power to protect its own processes.[6]
[6] Lederer & Anor v Hunt (2007) FLC 93-311
In light of the matters set out in paragraphs 54, 55 and 56 of this judgment, I am satisfied that either of the above grounds would justify the granting of an injunction to prevent the husband registering or enforcing the Georgia order.
The balance of convenience favours the granting of such an injunction. The Georgia order was obtained in default of appearance by the wife, and the wife’s failure to appear in those proceedings is understandable given that her application for an anti-suit injunction was pending in this court at the time.
I am entitled to take the children’s best interests into account in considering whether to grant the injunction. I am satisfied that in light of the circumstances in which this order was obtained, it would not be in the children’s best interests for the order to simply be enforced without any further inquiry.
Restraining the husband from registering or enforcing the Georgia order will not prevent the husband from pursuing an order for the return of the children to the USA, either on an interim or final basis, in the appropriate court, once the wife’s application for an anti-suit injunction is determined.
The law applicable to the wife’s application for an anti-suit injunction
In CSR v Cigna Insurance Australia Limited[7], the High Court considered the principals governing the grant of anti-suit injunctions. The majority said as follows:
“The question whether a dispute as to legal rights should be litigated in the courts of one country or those of another is one that permits of resolution, if resolution is possible, by one court staying its proceedings in favour of the other or by it granting an anti-suit injunction restraining a person amenable to its jurisdiction from commencing or continuing proceedings in that other country. The phrase ‘anti-suit injunction’ is now in common use and, at least in some instances, resembles an injunction granted to protect the legal or equitable rights of the plaintiff or a common injunction to protect the processes of the Chancery Court against interference by the processes of other courts.”
[7] CSR v Cigna Insurance Australia Limited (1997) 189 CLR 345
This court has the power in appropriate circumstances to grant an anti-suit injunction. The source of the power is either s.34 of the Family Law Act or the courts inherent jurisdiction.[8]
[8] Lederer & Anor and Hunt (2007) FLC 93-311; D & L (2005) FLC 93-225 paragraph 42
The husband did not argue that he was not amenable to the jurisdiction of this court. He submitted to the jurisdiction of the court for the purposes of the wife’s application for an anti-suit injunction being heard. During submissions the wife’s solicitor asserted (and the husband’s counsel did not contradict the assertion) that the husband had complied with the order made in this court by Henderson FM on 18 August 2008 concerning release of the container.
The majority of the High Court in CSR & Cigna Insurance[9] identified two bases on which a court might grant an anti-suit injunction: pursuant to the inherent power to protect the court’s own proceedings, and pursuant to the equitable jurisdiction, when the proceedings in another court are according to the principles of equity considered to be vexatious or oppressive.
[9] CSR v Cigna (supra)
In that last regard, in Henry v Henry[10] the majority of the High Court observed that although it is not necessarily vexatious or oppressive to bring proceedings in different countries
“the problems which arise if the identical issue or the same controversy is litigated in different countries which have jurisdiction with respect to the same matter are such…that, prima facie, the continuation of one or other should be seen as vexatious or oppressive within the Voth sense of those words.”
[10] Henry v Henry (1996) 185 CLR 571
The wife’s solicitor did not indicate whether the wife was asking the court to make an anti-suit injunction in the exercise of its equitable jurisdiction, or in the exercise of its right to protect its own processes.
In my view the appropriate course is to consider whether the injunction should be granted in the exercise of the court’s equitable jurisdiction.
Turning then to the matters the court must consider in deciding whether to grant the anti-suit injunction, the following may be distilled from the decided cases:
i)the principles to be applied in this court are those applicable at common law.[11]
ii)If the basis on which the injunction is sought is the courts power to restrain inequitable conduct, the Australian court must first consider whether it is a clearly inappropriate forum to determine the matter.[12]
iii)If the Australian court determines that it is a clearly inappropriate forum then that is the end of the matter. If however the court “reaches the opposite conclusion…then it must go on to determine whether to require the applicant to seek a stay or dismissal of the foreign proceedings or to grant an anti-suit injunction.”[13]
iv)Although the court may require a party to seek a stay or dismissal of the proceedings in the foreign court before considering the application for an anti-suit injunction, it is not compelled to do so.[14]
v)If the court does not require the party to seek a stay or dismissal in the foreign jurisdiction or if this step is taken without success, “the court must proceed in accordance with the practice which ordinarily applies with respect to interlocutory relief. In other words, it must then determine whether there is a serious question to be tried and, if so, whether the balance of convenience favours the grant of the interlocutory injunction.”[15]
vi)In considering whether to grant an anti-suit injunction in a parenting matter, the court is not required to treat the best interests of the children as the paramount consideration. However “…litigation involving children is not strictly inter partes litigation, and the child[rens]’s best interests will almost inevitably be a significant matter.”[16]
[11] EJK & TSL (2006)FamCA 730 paragraph 83; Lederer & Anor and Hunt (supra);
[12] CSR v Cigna (supra)
[13] CSR v Cigna (supra)
[14]CSR v Cigna (supra) Lederer & Anor and Hunt (supra)
[15]Lederer & Anor and Hunt (supra)
[16]EJK & TSL (2006)FamCA 730, paragraph 83; see also B & B (Re Jurisdiction) (2003) FamCA 105
Is the Australian Court a clearly inappropriate forum?
In Henry v Henry[17] the majority of the High Court discussed (in the context of a stay application) the test which should be adopted in order to determine whether an Australian court was a clearly inappropriate forum and said as follows:
“In Voth[18] this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, 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 and damaging”, or, vexatious in the sense of “productive of serious and unjustified trouble and harassment.” It was also held in Voth that, in determining inappropriate forum, “the discussion by Lord Goff in Spiliada of relevant “connecting factors” and “legitimate personal or juridical advantage” provides valuable assistance”. In this last regard Lord Goff of Chiveley 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 parties and the ends of justice.”
[17]Henry v Henry (supra)
[18]Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
The majority of the High Court, while stressing that the list was not exhaustive, considered that the following matters were relevant to determining the issue of whether the Australian court was a clearly inappropriate forum:
·whether each country will recognise orders made by the other;
·whether any orders may need to be enforced in other countries and if so, the relative ease with which this can be done;
·which forum can provide a complete resolution of the matters involved in the parties controversy;
·the order in which the proceedings were commenced, the stage they have reached and the costs which have been incurred;
·the connection of the parties and their marriage to each jurisdiction and the issues on which relief might depend in those jurisdictions;
·whether, having regard to their resources and language, the parties are able to participate in the respective proceedings on an equal footing.
There can be no doubt that Australia and the United States will each recognise and enforce parenting orders made by the other. Neither party submitted that difficulties might arise with recognition and enforcement in the USA of other Australian orders.
It is important to note that while the wife has applied in Australia only for parenting orders, the husband has applied in the USA for a divorce, property settlement, alimony and child support as well as for parenting orders.
Regardless of the relief sought however, the applications of both parties arise out of the marital relationship. The Australian court, if necessary, can provide a resolution of all matters arising out of the marital relationship, that is, all matters about which the husband has applied in the USA, save and except that in Australia child support is dealt with by a government body in the first instance.
The husband did not submit that he would suffer any disadvantage if the parenting and other matters arising out of the marital relationship were dealt with by an Australian court rather than a court in the USA because different considerations would be taken into account in the two countries.
While the wife was remiss in not serving the husband with her application, she commenced proceedings for parenting orders in Australia before the husband commenced proceedings in Georgia.
Both sets of proceedings are in their very early stages.
The parties and the children have a strong connection with Australia. The parties are both Australian. They married in Australia and lived here for half their marriage. The wife and children returned here with the husband’s consent. The children have now lived in Australia for more than twelve months.
Each party gave some evidence about their financial circumstances but I cannot make any findings about these matters based on the untested evidence before me. I do note however that the husband came to Australia twice in 2008, and that he did not complain that financial or work constraints would hinder him taking part fully in proceedings in Australia if the anti-suit injunction was granted.
Finally, the husband’s counsel submitted that the wife had consented to the husband commencing proceedings in Georgia. In support of that submission he relied on the following passage of evidence by the husband:
“During my visit to Australia in January 2008, Ms Vigano said to me words to the effect:
“I am in love with Mr J and I want to get a divorce as soon as possible.”
On my return to the United States, and believing that I had
Ms Vigano’s full consent, I commenced divorce, custody and property proceedings in Georgia, United States…”[19]
[19] Husbands affidavit filed 13 October 2008 paragraphs 46, 47
I do not accept that, even if the wife said the words quoted by the husband, those words could possibly be construed as amounting to consent by the wife to the husband commencing proceedings in the United States.
In my view, the Federal Magistrates Court of Australia is not a clearly inappropriate forum to hear the applications arising out of the marital relationship of the wife and husband.
Should the wife be required to seek a stay or dismissal of the Georgia proceedings in Georgia?
The husband did not submit that, if it was found that the Federal Magistrates Court of Australia was not a clearly inappropriate forum, the wife should be required to seek a stay in the Superior Court of Fayette County before her application for an anti-suit injunction was further considered. Given that the wife’s proceedings were commenced first in time, and given the potential cost and difficulty for the wife (and the cost which would also result for the husband) if the wife was required to make a stay application in the Superior Court of Fayette County, I do not consider that the wife should be required to seek such a stay before her application for an anti-suit injunction is determined.
Does the balance of convenience favour the granting of an anti-suit injunction?
There is clearly a serious question to be tried between the parties and the remaining issue is whether the balance of convenience favours family law matters being litigated in Australia or the US.
The strongest argument on the husband’s case (although he did not make it) was that most of the parties’ property appears to be in the USA.
The Australian court however has the power to make orders for divorce, property settlement and spousal maintenance as well as parenting orders and child support can be dealt with in Australia by a government body.
The focus of both parties at the hearing before me was on the parenting proceedings. In that regard, although the best interests of the children are not the paramount consideration, they are still a relevant consideration.
This is not an abduction case. The wife and children came to Australia with the husband’s consent and have been living here for more than twelve months, and attending school here.
When the issue of whether the children are to remain here or return to the United States is considered, evidence about the children’s views and their adjustments in Australia will be relevant, whether the court is considering final or interim orders. This evidence will need to be obtained in Australia, and is most easily presented in a court in Australia.
In my view it is appropriate that the determination of whether it is in the children’s best interest to live in the United States with their father or in Australia should take place in Australia. The Federal Magistrates Court can also determine any other issues arising out of the marital relationship. I intend to grant the anti-suit injunction sought by the wife.
For all the above reasons the orders of the court will be set out at the beginning of the judgment.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Rachel Hodgson
Date: 27 February 2009
0
6
2