Withers and Russell and Anor (No 2)

[2015] FamCA 379

FAMILY COURT OF AUSTRALIA

WITHERS & RUSSELL AND ANOR (NO 2) [2015] FamCA 379

FAMILY LAW – PROPERTY – Interim Orders – Application of the husband for a partial property settlement – Where there is insufficient evidence to make partial property settlement orders – Where the parties are involved in ongoing litigation in another jurisdiction – Where the proceedings in the United States are at a more advanced stage – Where there are Hague Convention proceedings on foot in the United States – Where the proceedings are adjourned.

Family Law Act 1975 (Cth)

APPLICANT: Mr Withers

FIRST RESPONDENT: Ms Russell

SECOND RESPONDENT: Ms B Russell

FILE NUMBER: CAC 223 of 2015

DATE DELIVERED: 6 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 6 May 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Applicant in person

SOLICITOR FOR THE FIRST RESPONDENT: First Respondent in person by telephone

SOLICITOR FOR THE SECOND RESPONDENT: No appearance

Orders

1. That this matter is stood over to the Judicial Duty List before a Registrar at 9.30 am on 29 June 2015 and later before a Judge for a possible interim hearing.

2. That any application the parties wish to have heard on that day or, any evidence to be taken into account on that day, is to be filed and served on or before 15 June 2015. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Withers & Russell and Anor (No 2) 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 SYDNEY

FILE NUMBER: CAC 223 of 2015

Mr Withers

Applicant

And

Ms Russell

First Respondent

And

Ms B Russell

Second Respondent

REASONS FOR JUDGMENT

1. In these proceedings, on 20 February 2015, Rees J made orders freezing a bank account under the control of the First and Second Respondents.  Her Honour directed that any application for an anti-suit injunction be filed and served before 20 March 2015.  No such application has been filed. 

2. The reference to an anti-suit injunction is a reference to two sets of proceedings that are before the United States District Court in City H, State G.  There is a hearing scheduled for 3 June 2015 under the Hague Convention for the return of the children to Australia.  Additionally, the First Respondent has filed an application for divorce in the District Court in State G, and the Applicant has filed a Notice of Motion objecting to the court’s jurisdiction.  That matter is fixed for hearing on 5 June 2015. 

3. As part of his Initiating Application, the Applicant sought orders based upon the bank account being frozen.  One of those orders was for the payment to himself of a sum of money equivalent to that that he asserts was taken from that account by the First Respondent prior to it being frozen.  In other words, he seeks an order for a partial property settlement.  I have indicated to the Applicant that the evidence before the court today is not sufficient for him to obtain that order today.  It follows that there is no application effectively ready to run in the proceedings today. 

4. In any event, any application for a stay of these proceedings is likely to have been adjourned pending the determination of the two cases in State G.  It would be a very relevant fact to the exercise of this court’s jurisdiction in relation to parenting issues whether or not the child is to be returned to Australia or would remain in State G.

5. Secondly, there is no utility in two courts determining at the same time whether they have jurisdiction.  Given that the proceedings in State G are at a much more advanced stage of hearing than these, it would be preferable, in the absence of evidence to the contrary, for the proceedings in State G to continue.

6. For all those reasons, there is nothing that the court can usefully do today.  On the assumption that the parties wish to pursue their applications, the matter will be stood over to the judicial duty list at 9.30 am on 29 June 2015.  Any application that the parties wish to have heard on that day or any evidence that the parties wish the court to take into account on that day is to be filed and served on or before 15 June 2015.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 6 May 2015.

Associate: 

Date:  25 May 2015