In the case of Underwood & Underwood (2017) FLC 93-815, the wife sought leave to appeal against the order made by the primary judge granting an interim injunction enjoining her from continuing to seek any orders in proceedings commenced by her in the United States of America (“USA”).
The parties married in 1993 and separated in 2017. Although both born in Australia they lived and worked in the USA in 2014 and 2015. In June 2015 the wife and parties’ children retuned to live in Australia. The husband continued to live and work in the USA but returned to Australia on a number of occasions in 2015 and 2016. The wife commenced proceedings in the USA seeking orders in relation to the dissolution of the marriage with the husband, parenting, child support, spousal maintenance, provision for legal fees and property settlement.
The husband filed a response to the proceedings commenced by the wife in the USA, challenging the jurisdiction of the court to entertain the wife’s proceedings and alternatively sought a stay or dismissal of those proceedings on “forum non conveniens” grounds. Forum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case. The husband also commenced proceedings in Australia seeking orders in relation to property settlement, parenting and an anti-suit injunction against the wife in respect of the USA proceedings.
As the order appealed from was an interlocutory order, leave to appeal was required under s 94AA of the Family Law Act 1975 (Cth) and reg 15A of the Family Law Regulations 1984 (Cth). The application and the appeal were opposed by the husband.
The wife contended that leave should be granted as the matter raised important issues of principle in relation to the approach to be taken in interlocutory proceedings where a forum dispute exists. These principles have wide application or are of general importance. The wife further contended that the interlocutory orders under appeal work a substantial injustice upon her as they may work to pre-judge the issue and affect the ability of her to succeed in her contentions at a final hearing.
The Full Court of the Family Court of Australia noted that it was important to appreciate that no submissions were made by the wife at the original hearing as to the form of the proposed injunction or the prejudice she would suffer by the granting of the interim injunction. The Court found that the point in the current case was that there has not yet been a hearing of the competing applications in relation to the substantive matters, and the primary judge was just looking to preserve the subject matter of the proceedings until the hearing could take place.
The Full Court found on the face of the material before the primary judge that there were proceedings in Australia and the USA between the same parties involving the same controversy, the continuation of one or the other of which was prima facie vexatious or oppressive in accordance with the test laid down in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.
The approach adopted by the primary judge was therefore appropriate and leave to appeal was refused.