What is an anti-suit injunction?
An anti-suit injunction is a court order, which is directed a party, which is to prevent them from commencing or continuing legal proceedings in another jurisdiction. In the context of family law, such injunctions are often used to stop a party from pursuing divorce, parenting, or property proceedings in a foreign court. This is in circumstances where an Australian Court already has jurisdiction over the matter.
Importantly, an anti-suit injunction operates in personam, meaning they are directed at the individual party rather than the foreign court itself.
Reasons for obtaining an anti-suit injunction
In family law disputes where parties have connections to multiple countries (i.e. such as, holdings assets in Australia and overseas), it may be appropriate to apply for an anti-suit injunction. It is common for one or both parties to be living outside Australia, sometimes with dual citizenship, permanent residency, or a history of spending significant parts of their relationship abroad. In many cases, children may have been born overseas, and the family may hold substantial assets across different jurisdictions.
This means that it can be tempting for a party to commence proceedings in the country where they currently reside, either for convenience or in the hope of securing a more favourable outcome. However, to avoid parallel proceedings on the same issues in different courts, an anti-suit injunction can be sought. Such an order enables The Federal Circuit and Family Court of Australia (“the FCFCOA”) to restrain one party from pursuing litigation overseas if it is deemed to be the inappropriate forum, pursuant to section 114(3) of the Family Law Act 1975 (Cth).
Requirements for an anti-suit injunction
In order to determine whether an anti-suit injunction can be issued the Court will apply the test, established in Voth & Manildra Flour Mills Pty Ltd [1990] HCA 55, to assess whether the parties had a significant connection between the Australian Court and the subject matter of the action. The Court also was required to consider whether continuing proceedings in Australia would be oppressive. It was an inappropriate forum (or forum non conveniens) “if continuation of the proceedings in that court would be oppressive, in the sense of ‘serious and unfairly burdensome, prejudicial or damaging’, or vexatious, in the sense of productive of serious and unjustified trouble and harassment” (Henry v Henry [1996] HCA 51).
In Henry, the court emphasised that in determining whether Australia is a ‘clearly inappropriate forum,’ in the general circumstances of the case, the true nature and the full extent of the issues need to be taken into account.
In Yeo & Huy (No 2) [2012] FamCA 541, the Court took into account the considerations in Henry, which were summarised as follows:
a. Whether each court will recognise the other orders and decrees;
b. Which forum can provide more effectively for complete resolution of the matters involved in the party’s controversy;
c. The order in which the proceedings were instituted;
d. The stage at which the proceedings have been reached;
e. The cost that has been incurred by the parties;
f. The connection with the parties and their marriage with each of the jurisdictions; and
g. The resources of the parties and their understanding of language and enabling the parties to participate in respective proceedings on an equal footing.
Anti-suit injunctions in parenting matters
In the case of ZP v PS [1994] HCA 29, following the parties’ separation, a Greek court granted the mother temporary custody of their son and expressly prohibited her from taking the child internationally without the father’s consent or a court order. The mother proceeded to remove the child from Greece to Australia without permission and applied to the Australian Family Court for joint guardianship and sole custody. The issue in this case was whether the Family Court should exercise its jurisdiction, in the interests of the child, to bring about the child’s return to Greece.
The High Court held that the doctrine of forum non conveniens was not applicable to a custody case where the child was already within the jurisdiction of the Family Court. The High Court said the Court can determine the question whether the welfare of the child requires the making of a summary order that the “custody “ of a child residing in Australia should be determined by a foreign Court.
The Court held that the factor of the child’s welfare must be weighed against the “unilateral removal of children from their place of usual residence”. The decision in ZP v PS emphasised that the child’s best interests remain the paramount consideration in parenting matters.
However, in a case of parallel proceedings in two jurisdictions where the child is habitually resident in Australia for example and taken to a non Hague Convention country, there may be a case for an anti-suit injunction against the parent pursuing parenting proceedings in the non convention country while the proceedings in Australia are pending.
How we can help
Anti-suit injunctions are a complex area of family law. At Nicholes Family Lawyers our team has expertise advising and representing parties in matters involving anti-suit injunctions. We provide tailored, expert advice to help you navigate this legally sensitive area.
Please contact our office on (03) 9670 4122 to arrange an initial consultation.