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David Hodson on International Family Law: An Australian example of the anti-suit injunction

Date:17 FEB 2011

David HodsonThe Australian family courts have handed down an anti-suit injunction in the international context of competing divorce proceedings. Given that the number of forum disputes will only increase with the growth of international families and international travel, the anti-suit injunction, known as a Hemain order in English family law, is vital.

In Ashforth [2010] FamCA 37, the couple had lived together and then married in England for 17 months before separating in Australia. Their child was born in Australia. The husband returned and resided in England and applied in Australia for parenting and financial orders. The wife, an Australian resident, subsequently issued divorce proceedings in England including ancillary relief.

The Australian court adopted the forum test in the leading authority of Voth v Manildra Flour Mills [1990] 171 CLR 538 namely proceedings before the Australian courts will only be stayed if Australia is "a clearly inappropriate forum". Many international commentators regard this as a very national prejudiced test, siding dramatically towards the likelihood of the proceedings being in Australia and against the party opposing the proceedings being in Australia, in contrast to the more balanced discretionary consideration of all the material factors as found in some jurisdictions. Nevertheless this test has been consistently upheld in a number of forum cases including in the family law context.

In Ashforth, Rose J held that Australia was clearly not inappropriate. The wife was living in Australia, was a national and the child of the relationship was in Australia. Therefore the court ordered that she should be restrained from continuing with the English proceedings. An anti-suit injunction against an Australian national in respect of English proceedings. Just as in England, these are orders in personam, and not in rem, so do not seek to bind the other court. It is only against the party personally. England like Australia will then take expeditious measures if it is clear the anti-suit injunction is being breached and one party is pressing ahead with their divorce in the other country.

In England, these orders have been granted, routinely although they are exceptional, with the leading case being Hemain [1988] 2 FLR 388. There was a short scare when their scope was narrowed in Bloch [2003] 1 FLR 1, but probably extended again in R v R [2005] 1 FLR 386. England is likely to have taken the same decision as Australia in a case such as Ashforth - unless the other country was in the European Union!

 In this regard, uncertainty lies because of the ECJ decision of Turner v Grovit [2004] AER 485, in which the ECJ stated that such anti-suit injunctions were entirely inappropriate in the judicial systems of Europe. Whilst the aim of the unifying judicial systems across Europe is laudatory, it is decades away. In the meantime with excessive delays and procedural injustices with some EU countries, the anti-suit Hemain injunction remains highly crucial, in the EU and across the rest of the world.

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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