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Nicholes Family Lawyers successful in defending appeal against anti-suit injunction

Nicholes Family Lawyers were recently successful in defending an appeal before the Full Court of the Family Court of Australia in the matter of Cole & Abati [2016].

The appellant husband is an Australian citizen who owns assets in Australia, and New Zealand which are worth approximately $60 million. The respondent wife is an Indonesian citizen who owns assets in Indonesia worth approximately $3 million acquired with money the husband gave her prior to their marriage.

The parties married in 2012 and executed a binding financial agreement  (pre-nup) on their wedding day in which both parties agreed, among other things, that they would each retain their separate assets held by them prior to the marriage and that the husband would not seek relief in Indonesia in relation to the wife’s assets.  

The parties were separated in 2012, had a son and divorced in Indonesia in 2014. In 2013, the husband commenced proceedings in Bali Indonesia in respect of the wife’s assets in Indonesia. The wife then brought proceedings in the Family Court of Australia seeking a declaration that the binding financial agreement was binding and an order restraining the husband from seeking relief in Indonesia in regard to her assets. Throughout the course of the proceedings, the husband conceded that he would issue proceedings in Indonesia if an anti-suit injunction was not made in Australia.

Justice Macmillan held the agreement was binding and granted the injunction at first instance in the Family Court of Australia in 2015 on the basis that the husband’s intention to pursue the proceedings in Indonesia “flies in the face” of the binding financial agreement signed by both the husband and the wife.

The husband appealed the Order made in the Family Court of Australia in 2015 which prevented him from issuing legal proceedings in Indonesia relating to property owned by the Respondent wife. The appellant husband argued that the Family Court did not have jurisdiction or power to grant the anti suit injunction. The Full Court found that Justice Macmillan had not erred at first instance and did have jurisdiction to grant the injunction. The Full Court dismissed the husband’s appeal and ordered that the husband pay the wife’s costs in regard to the appeal.

 

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