WHITE & TEMPLE
[2014] FamCA 396
•12 June 2014
FAMILY COURT OF AUSTRALIA
| WHITE & TEMPLE | [2014] FamCA 396 |
| FAMILY LAW – INJUNCTIONS – Anti-suit injunction – Clearly inappropriate forum test. FAMILY LAW – PRACTICE AND PROCEDURE – Registry dispute, Melbourne or Sydney. |
| Family Law Act 1975 (Cth) |
| CSR Limited v Signa Insurance Australia Limited (1996-1997) 189 CLR 345 Dobson and Van Londen (2005) FLC 93-225 Henry and Henry (1996) FLC 92-685 K & S & V (2001) FLC 93-070 Sheen and Paulo [2007] FamCA 1175 Steen and Black (2000) FLC 93-005 Voth and Manildra Flour Mills Limited (1991) 71 CLR 538 |
| APPLICANT: | Mr White |
| RESPONDENT: | Ms Temple |
| FILE NUMBER: | MLC | 262 | of | 2014 |
| DATE DELIVERED: | 12 June 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 4 June 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirkham QC |
| SOLICITOR FOR THE APPLICANT: | Broun Abrahams Burreket |
| COUNSEL FOR THE RESPONDENT: | Ms Carter |
| SOLICITOR FOR THE RESPONDENT: | Kennedy Partners |
Orders
That the wife be restrained by injunction from continuing the proceedings associated with child support or spousal maintenance in any court other than the Family Court of Australia.
That all extant proceedings be adjourned to a date to be fixed for trial before a judge as soon as practicable.
That all parties have leave to seek by written submission, an application for an expedited hearing setting out in those submissions, the matters as indicated in the Family Law Rules 2004.
That save as to issues of costs, all interim applications are otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym White & Temple has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 262 of 2014
| Mr White |
Applicant
And
| Ms Temple |
Respondent
REASONS FOR JUDGMENT
The dispute between the husband and wife is where their financial proceedings should be heard. The wife lives in New York and the husband lives in Australia. The financial proceedings include property, child support and spousal maintenance.
Justice Demarest of the Supreme Court of the State of New York determined by decision and order in May 2014 that the parties’ property proceedings should be heard in the Family Court of Australia. The wife now wants that to be heard in Sydney whilst the husband desires that it be heard in Melbourne. That is the second of the two issues.
The primary issue is that the husband seeks an anti-suit injunction to prevent the wife from continuing with her American proceedings concerning spousal maintenance and child support. Thus, the two issues came before this Court in the Judicial Duty List. Each party was represented by counsel and, helpfully, written submissions addressed both questions.
Background
The background of the parties can be simply stated. They married in April 2004 on the Gold Coast. Although born in the United States of America, the wife became an Australian citizen in 2005. The parties during their relationship also lived in New Zealand for a short time.
There are three children of the marriage all of whom are under 18 years of age. They live in New York with the wife. Those children hold dual citizenship.
The marriage came to an end in 2010 and the wife and the children relocated from Sydney to the United States of America.
The background of their litigation can also be simply stated. In 2013, the husband went to the United States to visit the children. There, the wife had him served with a divorce summons. In January 2014, the husband filed an application in this Court seeking a division of property.
The decision of the New York court.
Whilst there was no dispute about the jurisdiction of the New York court, Demarest J determined after argument that property proceedings should be heard in Australia. His Honour’s reasons included that the majority of property was in Australia and the husband had only visited New York for the purposes of visiting the children. At that visit, there were no extant proceedings in Australia but they were issued in January 2014.
Demarest J said:
The quality and nature of [the husband’s] contacts with and activities within [New York State] are not of the type which make it reasonable or fair to require him to litigate the economic issues of their marriage.
That determination sounds very much like a court considering not just jurisdiction but the appropriateness of the forum in which the jurisdiction was to be applied.
His Honour went on to refer to the other financial proceedings but noted that the wife had not brought them but rather had chosen to seek a divorce which limited the relief she could seek. Whilst the United States court had jurisdiction, it was not appropriate to exercise it anyway because much depended upon the economic consequences from the property proceedings which would be heard in Australia.
The question of how complex those child support and spousal maintenance proceedings might be (as a discrete and indeed second hearing after the Australian property proceedings), remains unclear but it is of significance that under the exercise of the Australian jurisdiction, there would be examination of much the same material about those economic issues as there would be in the property case. Thus, what Demarest J was contemplating was a separate hearing of those economic issues notwithstanding they could be determined contemporaneously with the Australian property proceedings.
The submissions of the husband
Senior counsel for the husband submitted that the principles governing anti-suit injunctions were found in CSR Limited v Signa Insurance Australia Limited (1996-1997) 189 CLR 345. The High Court there said that the court had an inherent power to grant anti-suit injunctions when the administration of justice so demanded it or when it was necessary for the protection of the court’s own proceedings and processes. The court had the power to grant an anti-suit injunction to restrain unconscionable conduct and that included proceedings being instituted in a foreign court. Obviously, the question was whether or not those foreign proceedings were vexatious or oppressive.
The Full Court of this Court in Dobson and Van Londen (2005) FLC 93-225 considered CSR Limited and said that the power to grant an anti-suit injunction was to be found in s 34 of the Family Law Act 1975 (Cth) (“the Act”) as well as in its inherent jurisdiction. Indeed, in that case there are similarities to this case because there was a dispute about whether there would be a hearing in the Family Court of Australia dealing with all issues or be a separation of them in two courts.
It was not disputed by counsel for the wife that this Court has the power and the appropriate jurisdiction to make an anti-suit injunction.
The forum argument
The test for the determination of forum is the clearly inappropriate forum question (see Voth and Manildra Flour Mills Limited (1991) 71 CLR 538 and Henry and Henry (1996) FLC 92-685). In Henry, the High Court said that the test of clearly inappropriate forum was the test to be applied in Family Court proceedings. Convenience alone does not necessarily mean that the local court is a clearly inappropriate jurisdiction. The question is whether or not the continuation of the proceedings would be oppressive in the sense of being seriously and unfairly burdensome, prejudicial or damaging, or vexatious, in the sense of being productive of serious and unjustified trouble and harassment (see Henry).
Senior counsel for the husband submitted that the onus lay with the wife to establish that the Australian jurisdiction was clearly inappropriate if she was seeking a stay of those proceedings. To determine that issue, the circumstances of the case must be taken into account. As set out in Henry, the matters include:
(a)Whether if both courts have jurisdiction, each will recognise the other’s orders and decrees;
(b)Which forum can provide more effectively a complete resolution of the matters involved in the controversy;
(c)The order in which the proceedings were instituted and the stage and costs reached;
(d)The connection of the parties and their marriage with each of the requested jurisdictions;
(e)The issues surrounding the relief associated with those jurisdictions; and
(f)Whether having regard to their respective resources and their understanding of the language, the parties were able to participate in either of the jurisdictions on an equal footing.
In Steen and Black (2000) FLC 93-005, this Court held that the various factors had to be balanced against each other. The Court said that in that process, the appropriateness of a variety of issues was to be contemplated. Those issues were:
(a)Was there a significant connection between the forums selected and the subject matter of the action and the domicile and places of business of the parties?;
(b)Was there a legitimate and substantial juridical advantage to a party in this Court?; and
(c)Whether the law of the forum be the substantive law to be applied in the resolution of the respective parties’ rights and obligations.
Here it can be seen that although the wife has submitted to the jurisdiction of the Court in relation to property matters, she has a desire to have the other economic issues determined in the United States. There is no question that she is amenable to the jurisdiction of this Court and hence to an anti-suit injunction.
The wife’s position
Counsel for the wife submitted that the law was as described by senior counsel for the husband. That is, the test was the clearly inappropriate forum. Counsel for the wife submitted that it was prima facie vexatious and oppressive to commence an action in the Australian courts when there was an action pending in another jurisdiction in respect of the same matter. That is not the situation here having regard to the position articulated by Demarest J and his Honour’s view about what the wife was seeking in New York.
It was submitted by counsel for the wife that the Court must consider whether the proceedings in Australia were seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment. With that test, both counsel agree.
As was submitted by counsel for the wife, the very fact that there were simultaneous proceedings in different countries was highly irrelevant to the question of whether or not the proceedings were oppressive or vexatious. The unusual feature of this case is that the court in New York has already determined that there must be proceedings in this Court to determine the property matters before there could be any contemplation of the other economic issues in the United States.
Counsel for the wife also agreed that whilst the list set out earlier in the submissions of the husband was not exhaustive, all of the matters depended on the general circumstances of the case taking into account the true nature and extent of the issues to assist in determining whether Australia was a clearly inappropriate forum.
Counsel for the wife submitted that in taking into account those general circumstances, whilst Australia was the forum to decide the property proceedings, it was clearly inappropriate to determine the other matters involving the parties. She pointed to unresolved parenting issues. It was not in dispute between the parties that those should be determined in New York. What was a vexed question was whether or not there were to be any such proceedings. At this stage, there does not appear to be any dispute about parenting matters even if the husband’s position is somewhat vague.
In my view, regardless of the parenting issue and indeed the divorce, in the property proceedings in this Court, the Court has to consider issues associated with the financial circumstances of the parties (see s 75(2) of the Act) and also the parties’ physical and financial responsibilities associated with the children. The property will be determined taking those matters into account. The involvement of the extra proceedings pursued by the wife would be relatively modest in terms of time and complexity if heard in this Court. It is particularly relevant in my view that any matter associated with the child support issue will require a party to establish that there are special circumstances to justify a departure from the assessment of the Australian Child Support Agency. The law in Australia is that it is the preferred position of parliament to have all matters determined by that formula. The Child Support legislation therefore is not complex in the context of a property proceeding.
In my view, the following matters can be found in this case:
(a)It is clear that each court recognises the decrees and orders of the other so to that extent, the tyranny of distance does not affect enforcement;
(b)The child support and spousal maintenance issues can be determined as part and parcel of the one proceeding in which this Court has exclusive jurisdiction now;
(c)The proceedings are still in their infancy and therefore neither party is disadvantaged in relation to issues such as costs and work done;
(d)Both parties have had significant connection with Australia and as is now known, the majority of the property is in Australia;
(e)The jurisdiction to determine the child support and spousal maintenance issues are available in both jurisdictions but as Demarest J said, they were dependent on the determination of the economic outcome of the proceedings in this Court and that same question would be asked if those same proceedings were brought as part and parcel of the property proceedings;
(f)Having regard to the order of Demarest J, it seems to me more economic from the parties’ circumstances and respective resources points of view to have one hearing concentrating on financial issues and as the property proceedings must now be heard here, there is no disadvantage to the wife in them being so heard in this Court.
I find therefore that the courts of the United States of America in respect of child support and spousal maintenance would be the clearly inappropriate forum.
I further find that because there would be two distinct proceedings relating to very similar matters, it would be seriously and unfairly burdensome on the husband to have to proceed in this Court and then travel to the United States to deal with issues of a very similar financial nature. It is hard for me to see that it is similarly burdensome for the wife having regard to the fact that this Court could hear the child support and spousal maintenance matters contemporaneously with the property proceedings. On that basis, the husband satisfies the test for an anti-suit injunction.
Melbourne or Sydney?
The wife’s position is that the matter should be heard in Sydney whilst the husband wants it heard in Melbourne. Rule 11.17 of the Family Law Rules 2004 enables a party to apply for a transfer of proceedings and if that application is made, Rule 11.18(1) gives some guidance as to what may be considered by the Court. Those matters are:
(a)The public interest;
(b)Whether the case, if transferred or removed, is likely to be dealt with:
(i)At less cost to the parties;
(ii)At more convenience to the parties; or
(iii)Earlier;
(c)The availability of a judicial officer specialising in the type of case to which the application relates;
(d)The availability of particular procedures appropriate to the case;
(e)The financial value of the claim;
(f)The complexity of the facts, legal issues, remedies and procedures involved;
(g)The adequacy of the available facilities, having regard to any disability of a party or witnesses; and
(h)The wishes of the parties.
The wife’s position was that the proceedings would be less costly and more convenient if heard in Sydney. She pointed to the fact that the Australian property was in Sydney and the parties had lived in Sydney for some time and indeed, the husband works in Sydney. She said that she and the children would be able to stay at a close friend’s home in Sydney which amounted to a saving of costs but not so in Melbourne. She was concerned to leave the children in New York in circumstances where one of the children has significant behaviour issues. In Sydney, she had family who could assist her unlike in Melbourne.
The husband’s position was that if the proceedings were to continue in Melbourne, they would be less costly, more convenient to he and the wife and most importantly, likely to reach a final hearing in a timelier manner. There is a dispute between the parties over an entity which may need to be valued and it was submitted that the husband had that business connection in Melbourne including having engaged Melbourne solicitors previously in relation to a tax dispute concerning it. That would only arise if the wife disputed the value of or the husband’s entitlement to, the business. The evidence would be in Melbourne. The wife acknowledged that the business needed to be valued but it seemed that the husband was of the view that the Sydney property of the parties was unlikely to be a subject of dispute. If so, that would obviate the necessity for valuers to be involved.
Whilst the wife relied upon the issue associated with the children and the matter of her inconvenience, the husband submitted that the children had been left with carers in the United States as had happened before when the wife had been travelling. Counsel for the wife complained that she did not have a client present at the hearing and was unable to get instructions to respond to that matter but that evidence was certainly not in the wife’s affidavit sworn on 29 May 2014 in any event where she had the husband’s affidavit.
The husband indicated that he did not see any reason for the wife to attend interlocutory hearings and in his view, the case was straight forward. Although not said in writing, senior counsel for the husband said that if an issue was the wife’s accommodation, his client would certainly “consider” contributing to those costs. Counsel for the wife observed that consideration is one thing and being proactive is another. My view is that she could always make an application.
It is beyond doubt that the Melbourne Registry is able to hear the matter more expeditiously than is Sydney even though the procedures used in both courts are primarily similar. An application for an expedited hearing or a particular certainty about a fixture is easier organised in Melbourne than in Sydney. Being conscious of the lists in both registries and in my capacity as the case management judge for Melbourne, I am satisfied that Melbourne could deal with the matter more expeditiously than could Sydney.
In K & S & V (2001) FLC 93-070 the Full Court said that the question of the transfer as between registries was a matter of discretionary judgment. An appellate court reviewing that discretion can still look at whether a judge failed to give proper weight to a relevant matter or indeed have given weight to an irrelevant matter. The appellate court has also taken the view that it can review the discretion if the conclusion reached was manifestly unjust. Thus, not only is this issue a discretionary one, but it is also subject to appellate review. In my view, this is a balancing question and I give particular weight to the fact that the wife would be required to come to Australia and would have the responsibilities of the children. Whilst she would prefer for that to be in Sydney, nothing suggests she could not arrange for her extended family or indeed acquaintances to assist her with the children whilst she is in Melbourne. I give significant weight to the fact that this case is more likely to be quickly heard in Melbourne and that obviates some of the problems that the wife was referring to in respect of the children. As Boland J said in Sheen and Paulo [2007] FamCA 1175, Rule 11.18 does not require the Court to give any particular weight to any one factor. As I earlier said, this is a balancing act and it seems to me that the most important question is that the case should be heard expeditiously and if indeed, as was submitted by counsel for the wife, it is a straightforward case, it can be dealt with quickly. The parties have been advised that the Melbourne Registry has a simplified process in relation to expedited hearings and to the extent that there is a desire of either of them to expedite this hearing, I will certainly consider it on written submissions rather than on a formal application to the Court.
In my view, all of the matters set out in Rule 11.18 favour the matter being heard in Melbourne.
I shall make orders accordingly.
I certify that the preceding Thirty Six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 June 2014.
Associate:
Date: 12 June 2014
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