Jurisdiction - Capacity - Forum Non Conveniens - Arbitral Awards - Injunction



Jurisdiction

Capacity

Anti-Suit Injunctions


[A] Capacity to Conduct Legal Proceedings, Guardian ad litem, litigation guardians


[B] Jurisdiction

> Eg, "The basis for the view that a proceeding to enforce a maintenance agreement which has been approved by the Family Court is a matrimonial cause is Carew and Carew (1979) 5 Fam LR 513 ; [1979] FLC 90-698 . The Full Court of the Family Court held (FLC at p 78,724): “It would be contrary to the express intention of the legislature to hold that proceedings for the enforcement of an approved maintenance agreement are not a matrimonial cause. Such proceedings should be regarded both as proceedings with respect to the enforcement of a decree, and as proceedings in relation to completed proceedings (ie the proceedings for the approval of the agreement). They are therefore a matrimonial cause …” However, whilst a maintenance agreement may be enforced as if it were an order of the Family Court in which it is deemed to be registered (ss 88 and 87(7)), it is clear that nothing makes it or even deems it to be a judgment, order or decree of that court. Such a point was recognized by Fitzgerald J in Re Stehbens ; Ex parte Stehbens (1982) 8 Fam LR 91 ; [1982] FLC 91-229 by Connolly J in Re Masterton (1978) 37 FLR 75 , and by the Appeal Court of New South Wales in Ellinas v Ellinas (1979) 5 Fam LR 114 ; [1979] FLC 90-649 . There is therefore a jump in the reasoning by which the court in Carew, supra , concluded that enforcement proceedings were proceedings with respect to the enforcement of a decree. This seems to be the central point of departure between the reasoning in Carew on the one hand, and Ellinas and a line of New South Wales decisions on the other. It may be said that no one would deny that the Family Court has the powers of enforcement recognized by s 88. Those enforcement procedures have already been mentioned, and are conferred principally by reg 136 made pursuant to s 123. But that is not to say that when a Family Court judge responds to an application under reg 136 he is entertaining a matrimonial cause as defined in s 4. He is simply exercising the jurisdiction that ss 88 and 123 and the rules give him. It may be noted that s 119 provides that either party to a marriage may bring proceedings in contract or in tort against the other party and that the word “party” is defined to include a party to a former marriage. For the above reasons I think that proceedings in a civil court which are equivalent to the enforcement of a maintenance agreement are not proceedings in relation to “proceedings between the parties to a marriage for the approval by a court of a maintenance agreement”. It follows that there is no sufficient relation between sub-paras (f) and (d) to make such proceedings a matrimonial cause. I may also say that I prefer the reasoning in Ellinas v Ellinas, supra , and succeeding cases including McLean (1979) 5 Fam LR 197 ; [1979] 1 NSWLR 620 Oliver (1978) 33 FLR 277 ; Hinchen [1982] FLC 91-266 and Perlman (1983) 8 Fam LR 811 ; [1983] FLC 91-308 to that in Carew (1979) 5 Fam LR 513 ; [1979] FLC 90-698 and ensuing Family Court decisions which naturally follow Carew, and which include Hutchinson (1979) 5 Fam LR 476 ; [1979] FLC 90-691 . The question remains whether proceedings to enforce a maintenance agreement are in relation to “proceedings between the parties to a marriage with respect to the property of the parties to the marriage or of either of them, being proceedings in relation to current pending or completed proceedings for principal relief between those parties”. The quoted words comprise sub-para (ca) of the definition. It is sufficient to say that the only proceedings that can be contemplated under that sub-paragraph that are relevant for present purposes are those with which I have already dealt, and the initial application which preceded the making of the agreement. Whilst it may be said that the initial application for property settlement was a proceeding in relation to completed proceedings for principal relief (namely the original dissolution of marriage) under sub-para (ca), it cannot be said that such proceedings are themselves “concurrent pending or completed proceedings” which they must be if sub-para (f) is to apply to them. Quite simply nothing is concurrent or pending or capable of being pending in any relevant respect, and the only proceedings capable of being completed proceedings are those for the approval by the court of the maintenance agreement, which have already been dealt with in the discussion concerning sub-para (d).": Noble v Noble (1983) 9 Fam LR 55. 

> see eg, discussion in P v B [2003] FamCA 121 (Park v Byon) <https://jade.io/article/754379>. 

> see also, Lundquist & Lundquist [2024] FedCFamC1A 219, [37]: "It is difficult to understand why property settlement proceedings (another matrimonial cause) being litigated in Australia without jurisdictional objection would not be a relevant circumstance when considering whether Australia would be a “clearly inappropriate forum”. When deciding whether to grant a stay or an anti-suit injunction, all proceedings arising out a matrimonial relationship should be seen as forming a single controversy, see: Dobson & Londen (2005) FLC 93-225 at 79,712. These property settlement proceedings demonstrate an acceptance of the proposition that, at least for that matrimonial cause, Australia is not a clearly inappropriate forum."

> is it the same controversy? (Magistrates Court restraining order and Parenting Matters parenting order) not same controversy even through evidence overlaps: "[54]  Before turning to the grounds of the application it is convenient to address the central contention raised by the applicant. Though it is expressed in a variety of ways the essence of the contention is that each of the first and second respondents erred in law by failing to hold that it was prima facie vexatious and oppressive for the applicant to seek a restraining order from the Magistrates Court when it was open to her to have sought such an order from the Family Court in the parenting proceedings. The applicant placed particular reliance on statements made by Mason J (as his Honour then was) in Moore v Inglis,40 cited with approval by the majority in Henry v Henry, in the italicised passage of judgment reproduced at [52] to the effect that it was prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second and subsequent action if an action was already pending with respect to the matter in issue. [55]  The applicant placed considerable reliance on the identification by the majority in Henry v Henry of the ‘marital relationship’ as the subject matter of the controversy and the characterisation of disputes about property, maintenance, and the custody of children as ‘ordinarily [being] but aspects of an underlying controversy with respect to the marital relationship’.41 [56]  In my view, the applicant’s argument does not attach sufficient weight to the qualification inherent in the word ordinarily in the majority’s observation and elevates it to an inflexible statement of principle to be applied without regard to the relevant factual context. In this case the parenting proceedings and the restraining order proceedings should not be characterised as separate proceedings with respect to ‘the matter in issue’ or ‘the identical issue or same controversy’ (to use the language of the majority in Henry v Henry). My reasons for this view are as follows. [57]  First, the central issue in the parenting proceedings was what parenting orders were in the best interests of the children, s 60CA of the Family Law Act as determined by reference to the considerations in s 60CC of the Family Law Act. [58]  Second, the central issue in the restraining order proceedings was whether the first other party had experienced family violence or was at risk of family violence committed by the applicant. The Restraining Orders Act does not deal with parenting orders. The object of applications under the Restraining Orders Act for family violence restraining orders is to ensure the safety of persons who have experienced or are at the risk of family violence,42 and this is reflected in the principles and provisions governing the making of such orders, see s 10B(1)(a), s 10D(1), s 10F(1)(a) and s 10G(1). A family relationship under the Restraining Orders Act is a concept that is wider than a ‘marital relationship’. The definition of ‘family relationship’ in the Restraining Orders Act includes the relationship between two persons who were but are no longer married to each other.43 [59]  Third, the first other party sought different relief in the restraining order proceedings from that sought by her in the parenting proceedings. In the parenting proceedings the relief sought by the first other party was limited to parenting orders. In the restraining order proceedings the relief sought by the first other party was limited to a family violence restraining order. There was no overlap in the relief. Further, in response to the applicant’s concerns to the effect the interim order compromised his ability to maintain a relationship with the children, the first other party made it clear in her evidence in the anti-suit injunction proceedings that her concern was not to discourage the children from having a relationship with the applicant but to restrain him from ‘using third parties, systems and agencies to disparage [her], harass [her] and to perpetuate his unfounded allegations about [her] mental health’. [60]  Fourth, having regard to the factual findings contained in the first respondent’s judgment and the evidence relied on by the first other party in support of the interim order application, it is clear there was an overlap in the evidence adduced in the two proceedings but an overlap in the evidence adduced in separate proceedings is not sufficient to sustain the proposition that the proceedings are with respect to the same controversy. [61]  It follows from both from this analysis and from what was said in CSR Ltd v Cigna Insurance Australia Ltd about the difference in the principles governing anti-suit injunctions and stay applications that the first respondent was not required by the authority of Henry v Henry to deal with the anti-suit injunction application on the basis that the restraining order proceedings in the Magistrates Court were prima facie vexatious and oppressive as contended by the applicant.": Lietzau v Berry [2025] WASC 56.

> Sweeney & Burniss [2023] FedCFamC1F 1032, [37]-[39].

> Costigan & Costigan [2017] FamCA 879, [50]-[54]. 

> Husband and child live in China. stayed: Zaro & Zan [2019] FamCA 4. 

> property substantially in PNG: Vanderberg & Vanderberg [2013] FamCA 134. 

> Parenting: Yalpat & Yalpat [2019] FamCA 717, [6]-[18], [25]-[26].

> Parenting, Taiwan courts already determined issues, stay granted: Yang & Chin [2011] FamCA 703. 

> NZ Property Relationships Agreement (akin to BFA) - stay application dismissed: "[13] In the circumstances which present in this case I do not consider that the wife has discharged her onus of showing that this Court is a clearly inappropriate forum. Indeed, in my assessment, this Court is not a clearly inappropriate forum. Although the wife has substantial links with New Zealand, she is an Australian resident and both parties have apparently been Australian residents since 2012. As I have mentioned, the assets the subject of the husband’s application are substantially located in Australia. Although there may be a forum for the resolution of the dispute in New Zealand, the wife has not sought to avail herself of this forum, nor can it be said that the wife will be prevented in Australia from relying on the agreement. As counsel for the husband conceded, it will be open to her to refer to it in the proceeding in this Court as a factor to be taken into account in making whatever alteration of property interest, if any, is thought appropriate for the purposes of section 79 of the Family Law Act 1975 (Cth). [14] Further, I accept that in all of the circumstances it would be unduly oppressive and burdensome to compel the husband to litigate in New Zealand. In my assessment it would not be in the interests of justice effectively to force him to do this. I will not, therefore, order that the husband’s proceeding in this Court be dismissed or otherwise stayed. The wife’s forum non conveniens application will be dismissed.": Zhu & Xie [2021] FedCFamC1F 86. 

> ongoing property proceedings overseas, all parties live in Australia, application for stay dismissed: Doon & Jing [2022] FedCFamC1F 665, [35] et seq. 

> Divorce: Bakshi v Mahanta (No 2) [2022] FedCFamC1A 90. 

> Divorce: Holcomb & Holcomb [2022] FedCFamC1F 580. 

> "70. Beyond the single expert opining that a Chinese court adopts a “trinity” mode, namely dealing with parenting, divorce and property proceedings, there is no evidence from the single expert as to whether or not a Chinese court adopts the best interests of the child as the paramount consideration, whether a Chinese court relies upon expert evidence as to the best interests of the child, and whether a Chinese court has a similar mechanism such as an Independent Children’s Lawyer (“ICL”). The wife’s counsel referred to parts of the expert’s evidence where it said that the court in China “will start from the principle of maximizing the benefits to the children” (at paragraph 20(3), page 10/23), and custody “shall be judged according to the principle most beneficial to the minor children” and “will respect their true wishes” (at page 15/23). To his credit, the wife’s counsel did not submit that it represented a best interest’s consideration. 71. The child is present in Australia, and can be interviewed easily if necessary for the preparation of a report and an ICL can be appointed. 72 Both parties say they intend to remain resident in Australia. Accordingly, if issues arise in relation to the parenting of the child they can be more easily dealt with in this jurisdiction. 73 I note the wife’s submission that the child has extended family in China and at some stage, it will be necessary for the child to travel to China. So the submission went that as a Chinese court will not recognise Australian orders, if the child travels to China there would be no orders in place to govern the return of the child as China is not a signatory to the Hague Convention. I note, however, that the submission seems to presuppose that the husband would not return the child, and ignores the evidence that the extended family have travelled to Australia on a number of occasions to see the child. 74 I am not satisfied that it is in the best interests of the child for there to be parallel proceedings in relation to his welfare. I am of the view that his best interests are met by the parenting proceedings continuing to be determined by this Court. 75 I dismiss the wife’s application for a stay of the parenting proceeding.": Kwok & Beng (No 2) [2022] FedCFamC1F 263. 

> re Singapore: "23. The parties ultimately agreed, after some contention regarding the possible application of the forum non conveniens principles, that the relevant test is the best interests of the children. The mother referred to and relied upon the decision of the High Court of Australia in ZP & PS (1994) 181 CLR 639; [1994] HCA 29 and the decision of the Full Court of the Family Court of Australia in Killam & Loeng (2015) FLC 93-642; [2015] FamCAFC 41. 24. In an appropriate case this Court may determine that the best interests of the children require the dispute to be heard in the Courts of a foreign country. 25. It is first necessary to consider then whether a summary order that these children be returned to Singapore is in their best interests, or whether their best interests are served by their remaining in Australia with the parenting dispute to be determined in this Court, or whether it is premature to determine that issue. ... 70. The mother’s submission is that upon her return to Singapore with the children the Singapore Court will be seized of jurisdiction and will apply a best interest test similar to the best interest test this Court would apply. 71. The father’s submission, as I understand it, is that as the family are not Singaporean nationals nor domiciled nor habitually resident there, despite being entitled to permanent residency, the Singapore Court would not have jurisdiction even if the children return to Singapore with the mother. 72. The father submitted that if there is any doubt at all about the jurisdiction of the Singapore Court it would not be in the children’s best interests to allow them to return to Singapore. ... 79. A general overview of the relevant law and Singapore Court was provided by Mirchandani. They identified the relevant legislation as The Women’s Charter (Chapter 353) (Singapore), which relates to family law and marital breakdowns including parenting proceedings when divorce proceedings are on foot; the Guardianship of Infants Act, which governs the welfare of children when divorce proceedings are not on foot; and potentially the International Child Abduction Act (Chapter 143C) (Singapore). They identified the Family Justice Courts of Singapore as the relevant Court.  80. Mirchandani identified the best interests and welfare of the child as being the paramount consideration under both the Women’s Charter and the Guardianship of Infants Act. The Singapore Court deals with interim and final issues which in Australia would encompass parenting orders. It was noted that interim parenting matters can take from 4-6 months to be heard. Singapore has a system for preventative Stop Orders which involves the Singapore Immigration & Checkpoint Authorities and so is akin to our Family Law Watch List system. ... 93. I accept the opinions of Mirchandani and Hua. I am comfortably satisfied that if the mother is domiciled in Singapore on her return to Singapore and makes an application for divorce then the Singapore Court will have jurisdiction to make the equivalent of parenting orders in respect of the children. 94. That flows from the fact that when the Women’s Charter is engaged only one party to the marriage must meet a relevant criteria to attract jurisdiction. The criteria being domicile at the time of the commencement of the proceedings, or, habitual residence for 3 years immediately preceding the commencement of the proceedings. 95. I note that unfortunately the question of whether that also applies to applications under the Guardianship of Infants Act is not as clear, as the relevant jurisdictional section has not been extracted or annexed and reference is made to domicile of the parties and children. It may be that the mother’s domicile alone is sufficient, or it may require more such as the domicile of the children or even both parents before that Act is engaged. 96. I am, however, satisfied that if it has jurisdiction the Singapore Court will apply the paramount principle of the welfare and best interests of the children, and can and will if requested ensure that the children are not removed from Singapore without both parties consent. ... 100. On the mother’s case she never intended to, and does not intend to, remain in Australia. She is not domiciled in Australia and so remains domiciled in Singapore. 101. In the alternative, upon her return Singapore will be her domicile of choice and she will be domiciled in Singapore and the Singapore Court will have jurisdiction. Her domicile will found jurisdiction under the Women’s Charter although that may require her to commence divorce proceedings, and may found jurisdiction under to the Guardianship of Infants Act. Either will be sufficient and will lead to the application of the same child’s best interest test. .... 150. Related to that factor is the fact that while the children remain permanent residents of and domiciled in Singapore and are legally entitled to be there, they are no more than tourists in Australia and presently have no legal right to remain here after …2019. Beyond that the father’s proposal is currently mere speculation. This also weighs in favour of the children’s best interests being to return to Singapore. ... 156. I do not accept the father’s submission that there is a potential that the Singapore Court will not have jurisdiction. It is an internationally recognised specialist Family Court which applies similar principles to those of this Court and applies as the paramount principle the advancement of the welfare and best interests of the children. ...": Purcell & Purcell [2019] FCCA 447.  

> re Taiwan: "16. For reasons not known to me, Taiwan is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the Hague Convention”), to which Australia has been a signatory for many years. Accordingly, this matter is not to be decided pursuant to the Family Law (Child Abduction Convention) Regulations 1986. If it was, ‘best interests’ considerations would not apply and the matter would be determined principally by consideration of the question of whether the child had been wrongfully removed from Taiwan or wrongfully retained in Australia away from Taiwan (having regard to the meaning of “wrongful removal” or “wrongful retention” within those Regulations) and, if that was established, then by consideration of whether or not a discretion not to order the child’s return arises on the evidence and, if so, whether that discretion to refuse a return order should be exercised.1 17. Although there appears to have been a little confusion in respect of the nature of the application that the Court was being asked to hear in the lead up to the commencement of the hearing, it became very clear at the outset of the hearing that the Court was not being asked to determine a choice of forum dispute in accordance with forum non conveniens principles, but rather was being asked to determine whether a summary order for the return of the child to Taiwan was in his best interests. Both barristers who appeared at the hearing agreed that was what the Court was being asked to do. Clearly, having regard to authoritative decisions of the High Court of Australia and the Full Court of this Court, that is the correct approach.2 There was no dispute that this Court has jurisdiction to make parenting orders in respect of the parties’ child and to make orders relating to his welfare, and that in undertaking that task the Court must regard the best interests of the child as the paramount consideration. There was no dispute that the Court is exercising such jurisdiction when it is determining an application for summary return of a child to a non-Hague Convention signatory country. 18. It is clear (and the parties agreed) that the Court has the power to order that a child brought to Australia from a non-Hague Convention signatory country be immediately returned to that country when, on a summary hearing in which there has been no cross-examination of any witness and where the Court’s capacity to make findings in respect of disputed factual matters is, therefore, necessarily restricted, the Court nevertheless determines that it is in a child’s best interests to do so. 19. Of course, in this case, counsel for the father submitted that immediate return of the child to Taiwan is in the child’s best interests, whilst counsel for the mother submitted that it is not. ... 21. International child abduction by parents who are separated from the abducted child’s other parent is abhorrent. No less should be said. Such conduct is not to be encouraged. It is not to be condoned. It has the potential to cause distress to everyone involved, including, most particularly, the children. It is, no doubt, for these reasons and also because of a view that it is most appropriate for determinations about the parenting arrangements for children whose parents have separated to be made by the Courts of the child’s place of habitual residence that the Hague Convention was brought into existence in the first place. However, as Taiwan is not a signatory to the Convention, the Convention’s principles do not apply to this case and simply cannot override the Court’s statutory obligation to determine the matter with the child’s best interests being the paramount consideration. It is not simply enough to say, without more, that the child’s best interests are served by ordering him to be returned to Taiwan where questions relating to his parenting arrangements may be dealt with pursuant to Taiwanese domestic law. Albeit a summary hearing, when determining in this case what is in the child’s best interests the Family Law Act mandatorily requires consideration of matters set out in s 60CC to s 60CG of that Act. ... 34. Relevant to this also, in my view, is a consideration of the evidence about what would happen if the child is immediately returned to Taiwan, particularly in respect of the legal proceedings that are already underway there. There is evidence from a Taiwanese lawyer that Taiwanese domestic law requires any determination of the father’s application in respect to parenting issues to be made on “best interests” principles. He says that mediation would be tried for a few months and that a trial could be expected to take place in around ten months if the dispute is not otherwise resolved. However, I am very concerned that there would be little room for consideration of best interest outcomes for this child if he goes back to Taiwan with his father and his mother does not go back herself or, if she does, she is charged, convicted and imprisoned for the commission of a criminal offence. In addition, there is no evidence before this Court at all demonstrating that a parent wanting to leave Taiwan with a child has any sort of right to try to obtain a Court’s order permitting him or her to do that if such a proposal is opposed by the other parent. ...": Chou & Long [2014] FamCA 1116. 

> transformation of property in Singapore law: Leong Wai Kum, [2024] SAL Prac 4: <https://journalsonline.academypublishing.org.sg/Journals/SAL-Practitioner/Family-and-Personal-Law/ctl/eFirstSALPDFJournalView/mid/594/ArticleId/1929/Citation/JournalsOnlinePDF>. 

> "[74]  Many civil courts expressly provide for a party who wishes to dispute the jurisdiction of the court in question to enter a conditional appearance, subsequent to which an application setting aside the initiating process or its service ensues as the vehicle for determining the appropriate jurisdiction for the litigation. Many of those sets of rules also provide that, in the event that an application seeking to either set aside the process or its service is not made within a specified time, then the conditional appearance becomes unconditional, with the consequence that the defendant is taken to have submitted to the court’s jurisdiction. Such a submission is generally irrevocable, albeit it does not preclude a forum non conveniens argument from being thereafter raised.26 [75]  A similar regime prevails in relation to the Family Law Rules. Rule 9.03 provides as follows: (1)A respondent seeking to object to the jurisdiction of the court: (a)must file a Response to an Initiating Application (Family Law); and (b)is not taken to have submitted to the jurisdiction of the court by seeking other orders in the Response to an Initiating Application (Family Law). (2)The objection to the jurisdiction must be determined before any other orders sought in the Response to an Initiating Application (Family Law). [76]  The response to initiating application filed by the respondent did not raise any jurisdictional point. [77]  However there is a fundamental distinction between this court and many other civil courts, and that is that unlike in many other jurisdictions, where jurisdiction is based upon valid service, under the Family Law Act, in relation to both property and parenting matters, service does not appear to be the basis for substantive jurisdiction, which is governed by s 69E in relation to children, and s 39 in relation to other proceedings. [78]  In [2000] FamCA 726 at [22] Chisholm J said as follows: [22] Third, there were references in argument to the wife having submitted to the jurisdiction of the court. I think this term has the potential to mislead, in the present context. As a technical term, as I understand the law it relates to the question whether a court has jurisdiction in personam, the common law principles being the court has jurisdiction only if the defendant has been served within the jurisdiction, or has submitted to the court’s jurisdiction. In the present case, however, there is no issue about whether the court has jurisdiction: it does, because the children are Australian citizens, and because one party is resident in Australia. The question is whether this court should exercise the jurisdiction it unquestionably has. In cases involving overseas elements, such as this case, this is a matter of discretion. The court considers a range of matters specific to the case before deciding whether it should exercise jurisdiction. There is a body of law about the relevant principles for determining whether the Australian court is a “clearly an appropriate forum”. This is a fundamentally different question from whether the court has jurisdiction. References to a party submitting to the court’s jurisdiction thus have the potential to confuse, although, of course, a parties choice of forum and actions in the course of litigation may be very relevant matters in the exercise of discretion. [Footnotes omitted.] [79]  In my view, this court plainly has jurisdiction under s 69E in relation to the child, and any attempt by the husband to assert otherwise would fail. However it is quite another thing to say that a submission to jurisdiction precludes the father from seeking to thereafter argue that notwithstanding its jurisdiction, the Family Court of Australia should not exercise it. That is a matter which prior to the insertion of Div 4, would have been argued by reference to the common law rules of forum non conveniens.27 Given that, in my view, s 111CD is intended to regulate the exercise of jurisdiction, then in my view the father’s submission to jurisdiction is not fatal to his present argument.": Duckworth & Jamison [2014] FamCA 308. 

> Consideration of the interpretation of ss 111CD(1)(c)(v) and 111CD(3)(c) of the Family Law Act 1975 (Cth) by Justice Tree in Duckworth v Jamison: "[74]  In this case, an earlier consent final parenting order, without more, does not amount to an acceptance of jurisdiction for the hearing of a new application for enforcement orders or different parenting orders in the court that made the consent order. [75]  Nygh’s Conflict of Laws in Australia (eighth edition) at pp 63 and 64 succinctly discusses how a party might submit to jurisdiction by taking steps in the proceedings. A person does not accept jurisdiction in this court by a mere failure to object to it at the first opportunity. The mother, by filing her initial Response in the Federal Circuit Court, did not irrevocably accept the exercise of the court’s jurisdiction, particularly in circumstances where two days later she filed a case outline and summary of argument which raised the question of forum. At best in this case the mother’s filing of a response was an equivocal engagement with the jurisdiction. I find that it was not an acceptance that the court might exercise the jurisdiction. [76]  The mother’s submission to the court’s jurisdiction to deal with property settlement can in no way be seen as an acceptance by her for the court to hear the parenting proceedings. [77]  In addition, I accept Justice Tree’s conclusion that depending upon the parenting measure that is sought, it is possible to initially accept the court exercising jurisdiction in relation to a particular parenting measure but then withdraw acceptance if the basis of the application fundamentally changes. Senior counsel for the mother gave the example of a respondent accepting the court exercising jurisdiction in relation to some minor variation to contact arrangements but then refused to accept the court’s exercise of jurisdiction if the applicant subsequently sought the children be relocated back from their place of habitual residence.": Zegna & Zegna [2015] FamCA 340.

> "[33]  There is no issue that the proceedings in this Court and the pending English proceedings are between the same parties arising out of their marriage and require the determination of "the identical issue or the same controversy" namely adjustment of property rights of the parties or property settlement between them. The wife may amend her response to seek spousal maintenance and/or other financial relief as she may be advised. No submissions were made in relation to financial relief which is or may be sought for the benefit of the child. [34]  I also give significant weight to the wife causing the institution of the English proceedings not only subsequent to the institution of the proceedings in this Court but some three weeks after she had received written notice of such proceedings. An inference may be drawn of forum shopping which has been criticised by various courts over many years. [35]  The parenting proceedings between the parties will continue in this Court. That has been made clear by counsel for each of the parties. In those circumstances, and having regard to the additional legal costs, potential travel and travel expenses which would be incurred by the wife in the event of both sets of proceedings remaining on foot it is ironical that the wife seeks in effect such a practical outcome, notwithstanding her evidence of the burdensome effect of increasing legal costs. [36]  I have taken into account that the parties cohabited throughout the period of their cohabitation which continued until their separation in May 2009 other than for about two weeks following the birth of the child. [37]  In addition, I also take into account that the substantive property of the parties is in England. To that extent there is a real connection with the jurisdiction to be exercised in the Family Division in the English proceedings. [38]  In my view, the weight attached to those matters does not overcome the weight which I have given to the matters previously outlined in reaching the conclusion that the proceedings in this Court are not clearly inappropriate. As was pointed out in Voth "the availability of relief in a foreign forum will always be a relevant factor"8. The High Court did not hold that it is the decisive factor. Similarly in Henry it was accepted that "legitimate personal or juridical advantage is a relevant but not a decisive consideration" 9 [emphasis added]. It must be remembered that the balance of convenience test no longer applies in Australia.10 [39]  The husband proposes to continue to visit Australia in order to spend time with the child of the parties in accordance with any further interim parenting orders and implicitly pursuant to any agreement reached between the parties or failing agreement, a final parenting order which may be made. In that regard, he has submitted and will continue to submit to the court's jurisdiction. Orders by way of enforcement of final property settlement orders can be made in personam against the husband so as to enable property interests that he may continue to hold in England to be available for the purpose of compliance with final orders that may be made. No submission to the contrary was made. [40]  I have also heeded the guidance provided by the High Court in Henry that in the context of whether these proceedings are oppressive or vexatious as interpreted in that case and earlier judgments of the High Court, that where there are simultaneous proceedings in different countries "with respect to the same controversy" that situation should be avoided to the extent that it is permissible to do so having regard to the relevant principles which must be applied.11": Ashforth & Ashforth [2010] FamCA 37.

> Nudd v Taylor [2000] QSC 344; 

> see also discussion in AFS Freight Management Pty Ltd and Anor v Ziegler Nederland BV [2000] QSC 489, [7]-[11] (Douglas J): "It is clear that a party can only be taken to have submitted to the jurisdiction of the court in circumstances where its conduct is inconsistent with the maintenance of an objection to the court’s jurisdiction. It must be shown that the party alleged to have waived the objection to jurisdiction has taken some step, which is only necessary or useful, if the objection has been actually waived. See National Commercial Bank v Wimborne (1979) 11 NSWLR 156. Failure to object at first opportunity does not amount to submission. For example, filing affidavits and contesting the merits of a case, even though an appearance has not been entered, will constitute submission. See Boyle v Sacker (1888) 39 Ch D 249. However in Williams v The Society of Lloyd’s [1994] 1 VR 274, McDonald J considered that a formal request by the defendants of the plaintiff for further and better particulars of the statement of claim did not amount to submission. A defendant is also taken to have submitted to the jurisdiction of the court where before entering an appearance, it seeks interlocutory relief which is only consistent with an intention to contest the merits of the case. See White v Hardwick (1922) 23 SR (NSW) 6. Similarly, a foreign litigant who institutes proceedings as a plaintiff is taken to have submitted to the jurisdiction of the court to entertain any defence by way of cross-claim against him. The fact that the cross-claim involves a different cause of action from that which the foreign plaintiff has brought does not preclude it from being raised if the cross-claim is founded on or directly arises out of the same subject matter as that of the initial action. See Marlborough Harbour Board v Charter Travel Co Ltd 18 NSWLR 223. But the plaintiff is not taken to have submitted to claims outside of and independent of the subject matter of the initial action. See National Commercial Bank v Wimborne (supra). This principle was approved recently in Nudd v Taylor [2000] QSC 344 where Holmes J said in determining that a foreign litigant had submitted himself to this jurisdiction: [21]   “It is too broad a statement to say that a foreign plaintiff who proceeds in Queensland thereby submits himself to the court’s jurisdiction at large. The position, is, in my respect view, correctly stated by Holland J in National Commercial Bank v Wimborne 35: “a foreign plaintiff, not otherwise subject to the jurisdiction of the court, who brings an action in the Court submits himself by necessary implication to every matter of counter-claim that would operate as a defence to his action or that would as a set off or cross claim arising out of the same subject matter reduce or extinguish the plaintiffs’ claim; and also, at least if he is not a foreign Sovereign, to a counterclaim founded on or directly arising out of the same subject matter as the plaintiffs’ claim that would require to be tried in order to do justice between the parties in relation to that subject matter even if it might result in a judgment against the plaintiff on the counterclaim.” His Honour continued, “To what has the plaintiff submitted? The answer to that lies, I think, in a consideration of what the plaintiff has brought to the Court for adjudication. He could not, in my opinion, properly be said to have submitted to claims outside of and independent of the subject matter of his own action”. 36 [22]    That case was cited with approval by the New South Wales Court of Appeal in Marlborough Harbour Board v Charter Travel Co Ltd 37. In the latter case, the court was prepared to go somewhat further, deciding that the foreign plaintiff’s submission to the jurisdiction extended to a counterclaim which raised a new cause of action, provided that such a cross-claim was founded on or directly arose out of the same subject matter as that of the action. [23]    To similar effect, the English Court of Appeal in Republic of Liberia v Gulf Oceanic 38 concluded that a plaintiff submitted himself to the incidents of his litigation, including liability to a counterclaim properly brought. In that case the plaintiffs had sought a declaration in relation to a contract for the purchase of oil and a resulting arbitration. The defendant’s counterclaim for damages for breach of the same contract and tort for wrongful procuring of the breach was permitted to stand, notwithstanding that the foreign defendants could not, in the absence of their own litigation, have been made amenable to the jurisdiction of the court on such an action.” In my view the defendants in this case have by their conduct submitted themselves to the jurisdiction of this court.".

> "(2) Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless: (a) where the person instituted a proceeding: (i) the proceeding has lapsed, been discontinued, or been dismissed; or (ii) the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and (b) where the person took other action--neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act."

> "15. On 30 October 2024, the Wife brought an application for enforcement of the 7 August 2024 orders and, in particular, order 4. A warrant for possession was sought for the Suburb C property as well as an additional order requiring the Husband to do acts and things, including cause his parents to vacate the home, to give the Wife sole use and occupation. 16. The action taken under the Family Violence Protection Act 2008 (Vic) in mid-2024 and the following day was pursuant to a prescribed law. Section 114AB(2) refers to a ‘prescribed law’ which is not defined in section 4 of the Act but is defined in Regulation 19 of the Family Law Regulations 1984 (Cth): ... 17. It appears to me that notwithstanding Police Officer D initiating the proceedings back in late 2023 and maintaining them through until mid-2024, that as and from mid-2024, the Wife was the applicant and hence had instituted a proceeding – that being the matter that was instituted in mid-2024 and listed before the Court the following day. If I am wrong about that, it is clear that her involvement falls within the term, ‘any other action under a prescribed law’. Further to that, we then have the carriage of the action by the Wife’s lawyers on 12 September 2024 when they advised the Court that they were prosecuting the allegations and pursuing the application. As discussed with counsel for the Wife, the fact of the very serious allegations made in mid-2024 and the allegation that there have been breaches of existing intervention orders does not overcome section 114AB(2). 18. Taking into account the purpose of the legislation and the whole of the Act, rather than merely the literal terms of section 114AB(2), lest I fall into that error, I am satisfied that order 4 of the 7 August 2023 orders was not able to be made because of the provisions of section 114AB(2). The scheme, or purpose, of the provision being that where there is a state law prohibiting a matter or an order pursuant to a state law prohibiting certain conduct, that conduct should not then be re-agitated or re-prohibited in proceedings pursuant to a Commonwealth law. Section 109 of the Constitution does not come to bear because of the clear words of section 114AB(2). 19. In those circumstances, it is not appropriate that I hear an application to enforce an order that I am satisfied was made in excessive jurisdiction or was ultra vires at the time it was made, notwithstanding the intentions of the parties. So, to the extent the proceedings before me today deal with the enforcement of order 4, I dismiss those proceedings.": Yeong & Sun [2025] FedCFamC2F 295.

> "13. I now turn to the issue of whether it is in the interests of X that the orders as sought by Ms Claybrook should be made. 14. I was asked to make an order, pursuant to section 68B(1) of the Family Law Act 1975 (Cth) (‘the Act’), that was a very wide restraint on Mr Black contacting the mother and/or the child or being within or nearby to her and so on. I am satisfied that the existing intervention order that was last made in early 2024, that extended an intervention order till early 2028, cannot be made because of section 114AB(2) of the Act. ... 15. I am also satisfied from Ms Claybrook's affidavit of unchallenged evidence that she cares very well for X and herself has convincingly, thoroughly undergone a significant process of rehabilitation from the life she shared with Mr Black, and has been able to undertake significant study and advancement in life. 16. Ordinarily, matters are rarely expressed in such blunt terms, but in the circumstances of the life and ordeal that Ms Claybrook endured with Mr Black, that is appropriate so that there can be no doubt or wriggle room about what is the state of matters. 17. I am satisfied, for those reasons, that those orders sought (save as to the personal protection orders) are in the best interests of X.": Claybrook & Black [2025] FedCFamC2F 220.

> "[8]  This case is emblematic of the differences between the two jurisdictions (marriage and de facto relationship jurisdictions) in two particular and significant ways. [9]  Firstly, jurisdiction to hear and determine a plea for property adjustment relief between the parties to a marriage is established by nothing more profound than the production of a Marriage Certificate and the production (or absence) of a Divorce Order (as regards time limits relevant to the commencement of proceedings). [10]  The fact of marriage and the fact that Divorce has not occurred more than 12 months prior to the date of filing of an Application are the only facts relevant to establishing jurisdiction for the parties to a marriage and without need for further enquiry. The only evidence required to prove those facts and establish jurisdiction, are public records (a marriage to found the Court’s jurisdiction, a Divorce Order to address whether the Application is within or without time limits for the commencement of proceedings). Even if challenge arises as to the validity of a marriage, jurisdiction to hear and determine a property plea remains as the proceedings remain a “matrimonial cause”.5 [11]  When jurisdiction is established by the existence of a marriage the Court need not enquire into the circumstances of the relationship between the parties so as to establish jurisdiction. The relationship is not evaluated, scrutinised or “judged” to determine whether the behaviour of the parties meets some arbitrary set of criteria to establish that it is a marriage. There is no consideration of the minutia of dealings between the parties, such as their degree of love and affection towards each other, the sex life of the parties or their public reputation. The parties to a marriage can keep the fact of their marriage secret from family and friends or even, Judas like, deny its existence to others. The parties to a marriage can be celibate, monogamous or promiscuous and no enquiry is necessary as the fact of marriage establishes jurisdiction. The production of a Marriage Certificate founds jurisdiction without further scrutiny of the relationship.6 ... [15]  In seeking to establish jurisdiction in a de facto relationship case, the parties might be required to adduce evidence and be cross — examined with respect to such personal matters as their sex life and “public recognition” of their relationship. In short, the relationship or alleged relationship of the parties is assessed and evaluated or “judged”. Such considerations do not apply and do not arise as regards the establishment of jurisdiction between married parties. If there is controversy as to existence or duration of a de facto relationship the parties must address such factual issues and obtain a section 90 declaration establishing jurisdiction before the case can proceed.8 [16]  The need to adduce evidence in this fashion, absent agreement between the parties as to existence of a de facto relationship and its length and date of termination and, thus, submission to jurisdiction,9 [Submission to jurisdiction can only arise on the basis of factual concession as to the existence of a relationship as required by the Family Law Act 1975. The parties cannot invest the Court with jurisdiction through consent and submission other than by agreement as to the matters addressed by sections 90SB and 44(5) of the Act.]  is a fundamental difference between the two jurisdictions.": Oldham & Avis [2017] FCCA 1480.

Jurisdiction-related issues - litigants of Indian heritage


[C] Jurisdiction and Pre-action Procedures

> Genuinely intractable disputes: "[37]  On 30 November 2012, the wife’s solicitor provided a written response to the husband’s submission in relation to the rules. It was correctly pointed out that the FLR which the husband sought to apply did not apply in the Federal Circuit Court. Second, the solicitor provided a detailed summary of steps taken by the solicitor and the wife consistent with the Family Court’s pre-action procedures. Finally, the exemptions contained in the FLR which excuse compliance with the pre-action procedures were highlighted, with particular emphasis on those cases which comprise “a genuinely intractable dispute”. In this regard, the wife claimed that the husband had “persistently ignored our attempts to engage in the pretrial process” and the parties’ indebtedness necessitated prompt court action. Thus, even if r 1.05 of the FLR applied or was to be applied, the court would be satisfied there had been sufficient compliance with pre-action procedures by the wife to allow her application to proceed and in the event of noncompliance, compliance excused. Notwithstanding the husband’s critique of this letter, we are persuaded that it presents a compelling case for urgent court action, that before filing the wife had taken significant steps consistent with pre-action procedures and any noncompliance should be excused.": Thompson & Berg [2014] FamCAFC 73. 

> Family Violence: "[35]  There is no doubt these proceedings entailed allegations of family violence made by the wife against the husband, regardless of his denial of the allegations. Nor is there any substance to his complaint about the timing of the application made against him for the State family violence order for the wife’s protection, as the husband concedes she first approached the police making allegations of family violence against him in February 2021, contemporaneously with the commencement of these proceedings. The wife also filed an affidavit simultaneously with her Initiating Application in February 2021, within which she made allegations of the husband’s family violence (at paragraphs [25]–[33]). It may be the husband is unfamiliar with the broad definition of “family violence” within the Act (s 4AB). The exemption from compliance with pre-action procedures applied, as the primary judge correctly found, so the wife could freely commence and prosecute the property settlement proceedings.": Qiu & Xinyi [2023] FedCFamC1A 62. 


[E.A.B] Diversity Jurisdiction - Residents of Different States - Family Court of Western Australia

Interstate Resident


[D] Parallel Proceedings in State and Territory Courts - for Damages, etc

> See resolution of matter - unsuccessful on malicious prosecution claim, but successful on trespass claim for nominal damages: Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47 <https://jade.io/article/1124889>. 


[E.B] Abuse of Process in Family Law


[E] Family Law Arbitrations

> "... [49] As a related issue, their Honours also held at [5] and [34] that the relevant provisions of the IA Act that empowered the Federal Court of Australia to enforce the award of an arbitral tribunal, in respect to an arbitration conducted pursuant to the Model Law, did not undermine the institutional integrity of the Federal Court. This was because the enforcement of an arbitral award, made within the arbitral tribunal’s scope of authority, was held to be no more than an enforcement of the binding result of the arbitral agreement. In those circumstances, the making of orders for enforcement of the award by the Federal Court was held not to signify the Federal Court’s endorsement of the legal contents of the award": McLaughlin v McLaughlin [2023] FedCFamC2F 1160, [49] (McClellanf DCJ). 

> " Enforcement of an arbitral award is enforcement of the binding result of the agreement of the parties to submit their dispute to arbitration, not enforcement of any disputed right submitted to arbitration.  The making of an appropriate order for enforcement of an arbitral award does not signify the Federal Court's endorsement of the legal content of the award any more than it signifies its endorsement of the factual content of the award.": TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia & Anor [2013] HCA 5, [34] (French CJ and Gageler J). 

> "The consent award was made by the arbitrator upon the parties providing to the arbitrator terms of settlement.  Those terms were the product of negotiations between the parties and the parties’ legal representatives.  The parties must account for their own authorship of those terms and so any issue about construing the terms is of their own making.  Be that as it may, as with any contract (terms of settlement being an accord and satisfaction)[5] the terms should ordinarily be construed according to a plain and ordinary meaning.[6]  No inconsistency exists nor lack of clarity in the chosen form of wording in paragraphs one, two and three of the consent award.  In one instance the relevant phrase used is “within seven days of the registration of this award”, in one instance the relevant phrase is “within seven days of this award” and in one other instance the relevant phrase used is “within 90 days of the date of this award”.  All three dates are readily capable of comprehension.  The award was registered on 16 July 2021.  While the dates are different, they are not unclear.  To the contrary, they are capable of immediate comprehension.  The wife endeavoured to demonstrate that inconsistency existed leading to a particular consequence, namely – It is submitted that this inconsistency raises the need for the Court to exercise the proper discretion to enable the just and equitable transfer of the Suburb H property to the Wife/children. [5] McDermott v Black (1940) 63 CLR 161. [6] Lewison, K, Interpretation of Contracts, (2020) Sweet & Maxwell. I do not agree.  Paragraphs one, two and three of the consent award suffer from no inconsistency nor want of clarity. Next, the wife argued that the husband failed to transfer both the Suburb F property and the Suburb H property.  The fact that the two properties were not transferred seemed to be common cause.  The real question is why that was so. It became necessary to construe the consent award. Pursuant to paragraph one, the parties were required to procure the disbursement of funds in court in the manner set out in that paragraph. That had to be done within seven days of 16 July 2021, that is to say, on or before 23 July 2021. Independently, within seven days of the date of the award that is it say, on or before 21 July 2021, the husband was required to do all things and sign all documents to transfer to the wife, unencumbered, his right title and interest in the Suburb F property.": Malaka & Lasso [2021] FedCFamC1F 278, [21]-[25]. 

> "... [6] The husband’s counsel submitted that the arbitrator’s award required the husband to transfer all of his unencumbered right, title and interest to the land known and described as the Suburb F property. The arbitrator ordered the husband to do that within seven days of the arbitral award. As the award was dated 14 July 2021, the husband was required to comply with the arbitrator’s award by effecting that transfer on or before 21 July 2021. I said as much in my 10 December 2021 reasons. Counsel for the husband conceded the immediacy of the husband’s obligations. At paragraph 3 of his submissions, counsel for the husband wrote as follows— True it is that there was delay occasioned by the Husband in relation to the transfer of the unencumbered [Suburb F property] which was required within 7 days of the date of the Award.": Malaka & Lasso (No 2) [2022] FedCFamC1F 161, [6].