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Property – forum non conveniens – wife restrained from continuing her earlier proceedings in Singapore

In Scarffe & Obannon [2020] FamCA 77 (18 February 2020) Wilson J granted the husband’s application for an anti-suit injunction against the wife from continuing her application for property settlement in Singapore, and dismissed her application for a stay of the husband’s subsequent proceedings in the Family Court of Australia.

The husband’s case was that most of the parties’ assets were in Australia and that the Singaporean litigation would not fully determine all property issues.

The parties cohabited in Australia from 1997 and married in 2014. They had three children. The family lived mostly in Australia, moved to Singapore in 2014 and separated in 2016. The husband left and in 2018 relocated to Australia. The wife and children remained in Singapore. The Australian assets were at least $3.4 million plus the wife’s inheritance here of about $5 million. The Singaporean assets comprised the wife’s bank savings and her company.

Wilson J (at [62]) cited CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 in which the High Court said:

“[T]he power to grant an anti‑suit injunction should not be exercised without the court…first considering whether its own proceeding should be stayed and, in determining whether its own proceeding should be stayed, the test is as stated in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 and in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32, namely, a stay will only be granted if the Australian court is a clearly inappropriate forum.”

The court concluded (from [64]):

“Self-evidently, it is undesirable for a proceeding to be on foot in Singapore in which the precise subject matter is being addressed as is being addressed in this court. The financial cost, personal toll to the litigants and inconvenience, to say nothing of the risk of inconsistent decisions of the two courts is manifest. (…)

[66] In my view, in this case it cannot be said that the precise same litigation is on foot in Singapore as it is in this court. While true, the Singapore court has power to grant orders in personam against both parties. Yet those orders are likely to be of little utility having regard to the fact that the majority of the property is in Australia. Enforcing any orders made by the Singapore court will be problematic in Australia whereas an order of this court is enforceable according to its terms without more.”

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

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