Cantanor & Beidenhope [2012] FamCA 5

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Orders

That the wife’s proceedings for property division commenced by Initiating Application filed 7 January 2010, proceed to the convening of the conciliation conference event.

That at the conciliation conference event that is convened, the husband’s solicitor (if the husband continues to retain a solicitor) shall attend in person but the husband is himself permitted to attend the conference by telephone at his own expense.

That should the wife’s proceedings commenced by Initiating Application filed 7 January 2010, not be finalised by orders made by consent at the conciliation conference or within seven days of the conference then they shall be thereafter stayed pending the outcome of the Applicant’s appeal against the order of Justice Forrest made 30 August 2011.

That until further order the husband is restrained from prosecuting in the Netherlands the petition for divorce dated 29 January 2011 filed in the District Court at City 1 in that country and any proceedings for property division or spousal maintenance ancillary to that petition.

IT IS NOTED that publication of this judgment under the pseudonym Cantanor v Beidenhope is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

On the day of the hearing, I determined, absent consent of the husband, not to hear the wife’s divorce application. In any event, upon further reflection, I am not satisfied that indeed I had the power, where the parties did not consent to a transfer, to order the transfer of the wife’s application for divorce out of the FMC, which is already seized of it, into this Court. I did not have the benefit of argument on that point but having considered the provisions of Part IV Division 5 of the FLA and the current protocol for the division of work between the two courts, I am not satisfied that power is conferred on this Court to order a transfer, either of its own motion or on contested application of one of the parties, of proceedings that are pending in the FMC to this Court. Transfers by this Court of matters pending before it to the FMC are permitted. Similarly, transfers by the FMC of matters pending before it to this Court are permitted. I am not satisfied though that matters pending in one of the courts can be effectively taken from that court by the other by a transfer order that is opposed by one of the parties. In any event, as I have said, I decided on the day not to do it.Respondent

REASONS FOR JUDGMENT

On 30 August, 2011, I dismissed the husband’s application for a stay of the wife’s property division proceedings commenced in this Court on 7 January, 2010. The husband had unsuccessfully sought to persuade me that this Court is a clearly inappropriate forum to hear and determine property division proceedings between the parties following the breakdown of their marriage. He had sought to have the Court stay the wife’s proceedings so that he was left, unhindered by the wife’s proceedings in this Court, to prosecute proceedings he had commenced for divorce, property division and spousal maintenance in the Netherlands.

On 22 September, 2011, the husband filed an appeal in the Full Court of this Court against my decision to dismiss his application for the stay. His Notice of Appeal lists 19 grounds of appeal from my discretionary judgment. In short, he asserts I erred in law, erred in fact, and inappropriately apportioned weight between the various matters I considered relevant in the exercise of my discretion.

On 19 December, 2011, the husband came before me again seeking that the wife’s proceedings be stayed, this time, pending the outcome of his appeal from my earlier decision. The wife opposed the husband’s application for the stay pending appeal and, this time, sought an anti-suit injunction restraining the husband from prosecuting the proceedings for divorce, property division and spousal maintenance that he has commenced in the Netherlands.

The wife also applied, orally on the day of the hearing, for me to hear her application for divorce, filed in the Federal Magistrates Court on 22 November, 2011. The husband’s solicitors had been given very recent notice of the wife’s intention to make the oral application to me and opposed me hearing the application. The wife’s application already had a listed hearing date in the FMC on 31 January, 2012. Although the husband also seeks to have the parties’ marriage dissolved, he is currently opposed to that happening in Australia. No doubt this somehow relates to the proceedings for property division and spousal maintenance being ancillary proceedings to his divorce application in the Netherlands.

The Husband’s Stay Application

The decision to order a stay pending an appeal is also discretionary. A stay should not be granted as a matter of course. It is for the applicant to persuade the Court that the circumstances are such that a stay is appropriate as successful litigants are generally entitled to ‘the fruits’ of their litigation.

Relevant matters for consideration include whether the refusal of the stay will render the appeal nugatory, the merits of the appeal, any undue delay in the filing of the appeal and the application for the stay, the bona fides of the applicant for the stay, the length of time before the appeal will be heard and determined.

The husband has appealed my decision to dismiss his original application to stay the wife’s property proceedings according to common law forum non conveniens principles. Should his appeal succeed then the wife’s proceedings would be most likely stayed as he originally sought. Refusing to grant the stay pending appeal potentially renders his appeal nugatory having regard to the fact that the appeal, I was informed by the parties, is not expected to be heard before June, this year. A decision from the Full Court on the appeal could take some time after that to be delivered.

I was informed that the proceedings are currently listed for further management by a Registrar on 6 February, 2012 and that the expectation is that a conciliation conference date will thereafter be fixed. I do not know when that would likely take place. If the matter did not settle at a conciliation conference, it would be required to then be made ready for trial before being listed on this Registry’s call-over list. A trial would not now, in the ordinary course, be likely to take place before the hearing of the appeal if that is in June this year. If ordered by a Registrar to begin preparing their evidence for trial, after an unsuccessful conciliation conference and before the determination of the husband’s appeal, both parties will suffer prejudice in the form of costs wasted, in the event of a successful appeal.

As difficult as it might be for a judge to consider the merits of an appeal from his or her own decision, that is what principle requires on these applications. I do not hesitate to assert that I do not see much merit in many of the listed 19 grounds. However, as I indicated at the hearing, the argument that insufficient weight was attributed by me to the fact that the parties had entered into a pre-nuptial agreement in the Netherlands which purports to restrict choice of forum in any post-separation litigation to courts in the Netherlands, is one, I am prepared to accept, the husband might consider has some appellate merit. Whether it does, I will leave to the Full Court to determine.

Counsel for the wife strongly put the submission that it would be odd to prevent the parties going to the next step in the litigation pathway, which is the conciliation conference at which resolution of their dispute is explored. The husband’s solicitor attempted to meet that with a submission that it would be prejudicial to the husband to require him to come all the way to Australia for the conference if his appeal is successful. That submission, of course, presupposes incapacity for the husband to attend the conference by telephone and failure to resolve the dispute at that conference.

I am of the view, particularly having regard to the relatively modest property pool in this matter and the continued cost of litigation to these parties, that exploration of possible resolution should not be prevented simply because of the pending appeal. I will make orders that allow the conciliation conference to take place and for the husband to attend by telephone should he so wish.

I will then stay the wife’s proceedings thereafter, in the event that the dispute is not resolved at the conciliation conference, pending the determination of the husband’s appeal, principally to save the parties from spending money preparing for trial that, most probably, will be wasted if the husband’s appeal is successful.

The wife continues to occupy the jointly owned, former family home here in Queensland, the only existing real property of the parties to be divided between them. She seeks to retain that property in the property proceedings commenced by her. I see no immediate imperative arising from those circumstances that weighs strongly against the proceedings being stayed pending appeal after the conciliation conference is concluded, if a resolution is not achieved at the conference. In fact, no such submission was made by counsel for the wife.

The Anti-suit Injunction

The husband clearly wants to litigate as to the parties’ legal rights to property division and spousal maintenance in the courts of the Netherlands. The wife clearly wants to do that in this Court. The question of who prevails has already been partly decided by me dismissing the husband’s application for a stay of the wife’s proceedings in this Court in August last year. That decision is now subject to appeal by the husband. He has persuaded me to stay the wife’s proceedings pending the determination of that appeal once a conciliation conference has been convened, if their dispute remains unresolved.

The wife now seeks to persuade me, given the husband could not convince me to stay her proceedings on the basis that this Court is a clearly inappropriate forum, that I should restrain the husband from continuing to prosecute his proceedings in the Netherlands.

An anti-suit injunction against the husband proceeding with his matter in the Netherlands is not simply given upon the refusal to order a stay of proceedings in this country’s courts. The relationship of the two different remedies was discussed and the principles applicable to their respective determination identified by the majority of the High Court in CSR Ltd v Cigna Insurance Australia Ltd.

Generally stated, an anti-suit injunction might be granted pursuant to the inherent power of the Court to protect its own processes or it might be granted in the exercise of the Court’s equitable jurisdiction in order to restrain unconscionable conduct or the unconscientious exercise of a legal right. The latter category of case includes cases where there are proceedings being conducted simultaneously in a foreign court which are “according to the principles of equity, vexatious or oppressive.”

In giving meaning to the words “vexatious or oppressive” used in this context, the majority judges cited with approval a number of UK decisions in which it was said that foreign proceedings are to be considered as vexatious or oppressive if “complete relief may be had” in the local court and there is nothing to be gained by proceedings in the foreign court over and above what may be gained in the local proceedings.

Answering the question as to whether the foreign proceedings are “vexatious or oppressive” in this sense is, in my view, made easier, at least in respect of proceedings between parties arising out of their relationship status, by taking note of what was said by the majority of the High Court in Henry v Henry. They acknowledged that even though differences in procedure, available remedies and in the substantive law to be applied would ordinarily ensure that the proceedings are different in significant respects, nevertheless the marital relationship itself is the subject of controversy. In fact, Brennan CJ, who was on the Court in Henry, said in CSR Ltd v Cigna:

In Henry v Henry, where proceedings for dissolution of marriage were commenced in both Monaco and Australia, the existence of parallel proceedings necessarily established that one of them was, in the strict sense, vexatious and oppressive.

I am quite satisfied, in the circumstances of this case, that the existence of the proceedings in the Netherlands at the same time as the proceedings in this Court establish that one of the proceedings is in the strict sense, vexatious and oppressive. Having already established in the previous proceedings that this Court was not a clearly inappropriate forum, something the High Court majority in CSR Ltd v Cigna said is generally the correct thing to do before granting an anti-suit injunction, I am satisfied that it is the Dutch proceedings that are, in the strict sense, “vexatious or oppressive”.

There are clearly serious questions to be tried, particularly in respect of the appropriate division of property and I previously determined that the Dutch Courts do not have jurisdiction in respect of the only real property that currently exists as property of the parties or either or them, as it is here in Queensland. Complete relief in respect of all causes of action arising out of the marital relationship, including all matters the husband is currently litigating in the Netherlands, can be obtained here. I am satisfied that the balance of convenience therefore favours granting the anti-suit injunction the wife seeks.

21.I am satisfied that until the Husband’s appeal from my earlier decision is determined, and, permanently, if his appeal is unsuccessful, the husband should be restrained from continuing to prosecute the proceedings he has commenced in the Netherlands. I will order accordingly.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 6 January 2012.

Associate:

Date: 6 January 2012