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Property – ‘wholesale injunction’ restraining wife from continuing all proceedings in Singapore set aside

In Obannon & Scarffe [2021] FamCAFC 33 (10 March 2021) the Full Court (Kent, Watts and Austin JJ) heard the wife’s appeal from an order that restrained her from continuing all proceedings in the Family Justice Courts in Singapore.

After restating Voth v Manildra Flour Mills Pty Ltd [1990] HCA 5 and Henry [1996] HCA 51 (at 592–593), the Full Court said (from [106]):

“The primary judge erred in principle … by ignoring or overlooking that the parties had resolved that the Singapore proceedings would continue with respect to [divorce, spousal maintenance, parenting issues and child support]…

[107] The authorities make clear that it is not the requirement to strictly compare the two forums … to decide which is the more appropriate forum. Here, the primary judge … appears to consider the central issue to be a direct comparison of the two countries’ family law procedures. (…)

[110] One legitimate purpose of comparing the law in each jurisdiction is to identify the existence of any juridical advantage to a party. …However it is not a legitimate purpose of such a comparison for a trial judge to thereby assess the comparative merits of the manner in which a case is determined as between the local and foreign tribunal. In this case the primary judge appears to give emphasis to his conclusions about the merits of Australian law in the manner in which property cases are determined, as compared to Singapore, rather than confining the consideration to one of effective dealing with the dispute arising from the breakdown of the parties’ marriage involving divorce, parenting issues, spousal maintenance and child support. We consider that to be an error (…)

[112] …[I]it is clear from the authorities that the test of whether the same controversy is before each Court is not one that requires complete satisfaction that every aspect of the litigation is identical.”

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson is the co-editor. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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