In the recently published decision of Althuis & Paz (No 3) [2025] FedCFamC1F 653 the FCFCOA (Division 1) considered whether Australian property proceedings should be permanently stayed where the parties entered a “pre-marital contract” and a “divorce agreement” in a foreign jurisdiction.
Behrens J found both that Australia was a clearly inappropriate forum and also that the Australian proceedings constituted an abuse of process. Consequently, the Australian proceedings were permanently stayed.
Behrens J noted that the determination that proceedings are an abuse of process is a very high bar. Key considerations included the fact that if the Australian proceedings were not stayed, the husband would face litigation of matters which were resolved between the parties in 2023. Additionally, the husband would face having to litigate not only in the foreign jurisdiction (seeking to enforce and implement the Divorce Agreement) but also in Australia. Her Honour further noted that so far as the wife’s interests were concerned, any orders made in Australia will not be enforced in the other jurisdiction leading to the risk of inconsistent orders which could be made as between the two jurisdictions. Another factor was that the wife’s maintenance of the Australian proceedings may constitute fraud in the in the other jurisdiction and may result in an award of damages to the husband.
Sandrine Alexandre-Hughes appeared, led by Michael Kearney SC, for the applicant husband (instructed by Lachlan Donaldson of Galt Kenway Family Law).
A copy of the judgment is available here: Althuis & Paz (No 3) [2025] FedCFamC1F 653