Althuis & Paz (No 3) [2025] FedCFamC1F 653 (19 September 2025)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Althuis & Paz has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are property proceedings pursuant to Part VIII of the Family Law Act 1975 (Cth) ("the Act") commenced by the applicant wife, Ms Althuis, by way of an Initiating Application filed on 26 June 2024 ("the Initiating Application"). The respondent husband is Mr Paz. He filed a Response to Initiating Application on 12 September 2024, seeking the dismissal of the Initiating Application ("the Response to Initiating Application"). The parties live in Country B. It is uncontroversial that this Court has jurisdiction to determine the Initiating Application by reason of the facts that Ms Althuis is an Australian citizen (s 39(4) of the Act) and that the proceedings were transferred to this Court on 24 September 2024. The issue before me is whether that jurisdiction should be exercised or the proceedings stayed.
2. The Court has before it the Amended Application in a Proceeding filed by Mr Paz on 17 February 2025 ("the Application") and the Response to an Application in a Proceeding filed by Ms Althuis on 14 February 2025 ("the Response"). Broadly described, the issues before the Court raised by the Application and Response are:

(1) Whether, notwithstanding the parties remain the joint owners of a property at Suburb D, New South Wales ("the [Suburb D] property"), the Initiating Application should be permanently stayed in circumstances where:

• Mr Paz contends that the parties have determined their property dispute by an agreement which has the effect of a court order in Country B;
• there are related Country B proceedings commenced by Mr Paz for the enforcement of that agreement and the sale and distribution of the proceeds of the Suburb D property; and

(2) Whether, as Ms Althuis seeks by way of the Response, Mr Paz should be restrained from pursuing the Country B proceedings.

1. Through the proceedings, there has been some movement in the orders sought in Mr Paz's case. Senior counsel for Mr Paz moved on the Amended Application in a Proceeding filed 17 February 2025 which sought orders in the alternative (namely, that the threshold proceeding in this Court occur after the proceedings in the Judicial Court of City C or, in the alternative, that the proceedings commenced by Ms Althuis's Initiating Application be permanently stayed), but by a Case Outline filed 13 June 2025, clarified that the substantive order sought is "That the Initiating Application (Family Law) filed by the wife on 26 June 2024 be permanently stayed."
2. Counsel for Ms Althuis moved on a Response to an Application in a Proceeding filed 14 February 2025, but by a Case Outline filed 13 June 2025 clarified that the stay is opposed and that the following orders are sought:

(1) That the husband be restrained from taking any further steps in his two Country B proceedings in the Family Affair Division of the Judicial Court of City C (file number [...] and [...]); and

(2) That the husband take all necessary steps to discontinue his two Country B proceedings; and

(3) That the husband be restrained from commencing any further proceedings in any other jurisdiction with respect to the division of the parties' property arising from the breakdown of their marriage.

Those orders are what are broadly known as "anti-suit injunctions".

1. Mr Paz relied on the following documents:
   • His affidavit filed 8 February 2025, without its annexures or exhibits;
   • The affidavit of Mr N (a translator) filed 7 February 2025;
   • The affidavit of Ms O (a translator) filed 7 February 2025;
   • A Notice to Admit filed 10 January 2025;
   • Notice Disputing a Fact or Document filed 23 January 2025.
2. Documents were also tendered in his case.
3. Ms Althuis relied on the following documents:
   • Her affidavit filed 13 February 2025, without its annexures or exhibits.
4. Documents were also tendered in her case.
5. Both parties relied on the evidence of the Single Expert appointed in this matter - Ms M, a Country B family lawyer. Her affidavit filed 13 August 2025 was received into evidence. Attached to this affidavit was her initial report, as well as her answers to questions administered in accordance with the rules with respect to expert evidence in Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Ms M was cross examined on 21 August 2025. The parties were not cross examined.
6. Both parties filed Case Outlines containing written submissions. On 9 September 2025, further written submissions were filed on behalf of Mr Paz. Oral submissions were received on 9 September 2025.
7. I have read and considered the documents listed above.

(1) The parties commenced cohabitation on or about September 2009 and were married in Country B in mid-2015. They migrated to Australia in late 2015 and their son, X, was born here in 2019. By early 2023, both parties and X had returned to live in Country B (Mr Paz says they returned in late 2022, Ms Althuis that she did not return on a final basis until early 2023).

(2) The parties separated on 22 December 2022. They were divorced in Country B by way of a Country B Divorce Certificate in mid-2023.

(3) Ms Althuis, Mr Paz and X all have dual Australian and Country B citizenship.

(4) Prior to their marriage, the parties entered into a pre-marital contract under Country B law ("the pre-marital contract"). Pursuant to this contract, they chose the Country B regime of separation of assets and agreed they would each keep their own assets. The pre-marital contract was not drafted as a Financial Agreement under Part VIIIB of the Act and was entered into under the Country B Civil Code. The pre-marital contract is certified by a Country B notary, who is a lawyer in private practice and who has a duty to advise both parties.

(5) After their separation, and in Country B, the parties signed a document described as a "[Country B] Divorce Agreement" (or, by the Single Expert, as the "[Country B] Divorce Convention") on 22 June 2023. That document was notarised by way of Country B law on 26 June 2023. Each party was in receipt of independent legal representation with respect to the Country B Divorce Agreement, as is required under Country B law for such an agreement to have effect. The Country B Divorce Agreement was signed after the expiration of the mandated period of reflection.

(6) By way of the Country B Divorce Agreement, as well as resolving parenting matters, the parties stated that:

Point 3.6 Liquidation of the matrimonial regime

The spouses are subject to the regime of separation of property.

There is no active or passive mass to divide.

The spouses have no claim against each other.

(7) The Country B Divorce Agreement did not include a declaration of assets identifying the parties' assets, nor their value.

(8) X lives in an equal time arrangement between his parents.

(9) At the time of entering into the Country B Divorce Agreement, the parties were and remain the joint registered owners of the Suburb D property, as joint tenants. The Suburb D property has been tenanted since it was purchased. The Suburb D property is security for a mortgage loan. The parties also have a Australian joint offset account, and another Australian joint bank account with a negligible balance.

(10) Mr Paz owns a majority of shares in a company registered in Australia - being J Pty Ltd. At the time the parties entered into the Country B Divorce Agreement, Ms Althuis was aware of Mr Paz's ownership of those shares and aware that she did not own any shares.

(11) There is no evidence about the value of the shares in J Pty Ltd at any time.

(12) The parties also have separate superannuation interests in Australia.

(13) There is no evidence about what other property Mr Paz owns - he has not been required to file a Financial Statement in these proceedings.

(14) By her Initiating Application, Ms Althuis seeks that the Suburb D property be transferred to her, and that she be paid a further cash sum as an adjustment to take account of the fact that Mr Paz would retain ownership of the shares in J Pty Ltd. It is an agreed position that Ms Althuis is not seeking simply to liquidate Suburb D. In her affidavit, she gives evidence that she seeks the parties each retain their property in Country B.

(15) In January 2025, Mr Paz commenced proceedings in City C in relation to the validity and effect of the Country B Divorce Agreement ("[Country B] proceedings 1"). By those proceedings he seeks a declaration as to the enforceability of the Country B Divorce Agreement and that there be "no new liquidation of the matrimonial property regime ... with respect to the sole Australian assets"

(16) In February 2025, Mr Paz commenced further proceedings in City C seeking orders as to the judicial division of "the remaining joint assets" - namely, for the sale of the Suburb D property, payment of debts and the equal division of the net proceeds ("[Country B] proceedings 2").

(17) The first listing date for Country B proceedings 1 is in September 2025. The first listing date for Country B proceedings 2 is in December 2025. Other than the Application and Response dealt with in these Reasons, the proceedings in Australia have not progressed beyond the filing of initiating and responding documents.

1. The Single Expert gave evidence about the effect of the pre-marital contract, by which the parties opted for the Country B regime of separation of assets, as opposed to a regime of community of property. She gave evidence that the separation of assets regime provides that each party keeps their assets separate, retains all rights in relation to such assets and is solely liable for debts incurred by each of them. Under the separation of assets regime, where property is held jointly, the distribution of such property after separation is based on the financial contributions made by each party to the property. The Single Expert opined that the parties could have elected or sought to depart from the pre-marital contract up to the time of entering into the Country B Divorce Agreement and could have sought the making of a compensatory payment - effectively to adjust the parties' interests in property. Such a compensatory payment and the bases on which it may be ordered are set out in Articles [...] of the Country B Civil Code. Article [...] provides that such a payment is intended to compensate for a disparity in the parties' respective living conditions created by the breakdown of the marriage. The factors which a court can consider in determining the compensatory allowance are set out in Article [...], and those factors are similar to the considerations now contained in s 79(5) of the Act. The Single Expert gave evidence that, by the terms of the Country B Divorce Agreement, both parties disavowed a claim to any compensatory payment.
2. The Single Expert opined that the Country B Divorce Agreement is a divorce by mutual consent, is valid and has effect as if it were a court decision - unless it is declared null and void. A "divorce by mutual consent must settle all the consequences of the divorce." She opined that this has occurred, as the statement in Point 3.6 of the Country B Divorce Agreement that "the spouses have no assets or liabilities to divide" means that, "if the spouses still have joint property, it remains undivided and they do not want to divide it (allocate it to one or the other) on the date they enter into the divorce agreement." She also makes clear that Point 3.6 means "they have no claims against each other" (in particular, for a compensatory payment) and points out that this is "without distinction between claims arising in Country B or abroad." She opines that "article 3.6 of the divorce agreement is very brief, perhaps too succinct. But it is legal under [Country B] law." In her opinion, "ideally a detailed liquidation settlement should be annexed to the divorce agreement to avoid future conflicts". She also opined, however, that the failure to list property owned, and the failure to attribute values to the property owned, does not affect the validity of the agreement.
3. The Single Expert further opines that "liquidation of the spousal financial relations is closed by point 3.6" and the "Australian court cannot decide again on that matter." She opined that the effect of the Country B Divorce Agreement is that "each spouse acquires and keeps the asset(s) to which he or she has a title deed wherever it is located." She opines that any order of this Court pursuant to Part VIII of the Act will not be recognised in Country B, and further that the filing of the initiating application by Ms Althuis may be regarded as "fraudulent" because she is seeking orders in Australia which she is unable, because of the Country B Divorce Agreement, to obtain in Country B. Ms M opines that an order for damages could potentially be made in favour of Mr Paz in the Country B courts by reason of Ms Althuis seeking in Australia an order which is inconsistent with the Country B Divorce Agreement.
4. With respect to joint ownership of assets following divorce, the Single Expert opines:

Following their divorce, if the ex-spouses still have property in joint ownership (not divided at the time of their divorce as legally permitted under [Country B] law), the Family affairs judge of the Judicial Court in [City C] can now make orders splitting the undivided property of [Ms Althuis] and [Mr Paz] located both in [Country B] and outside [Country B].

There is no limitation period. However, the Country B judge may not make orders adjusting the property - save that they can, by way of a "accounting wind up", take account of differential financial contributions to property which a party can prove. No account is taken of what might be found to be equitable interests in Australia. If financial contributions cannot be proven then, under the regime of separate property which the parties have adopted, jointly owned property will be divided equally between the parties.

1. In relation to the Country B proceedings, the Single Expert gave evidence that:

(1) Country B proceedings 2 are in the nature of the proceedings referred to in the previous paragraph - namely, proceedings which involve splitting the property jointly owned between the parties. The Single Expert opines that, unless there is agreement reached, these proceedings may last at least one year and will likely involve the appointment of a notary to liquidate and divide the property remaining in joint ownership, wherever it is located in the world.

(2) Country B proceedings 1 have been commenced in the wrong court, and will likely be transferred to another court.

(3) The Country B Divorce Agreement is valid unless and until it is declared not to be. Ms Althuis could challenge the validity of the Country B Divorce Agreement either in the first Country B proceedings or in other Country B proceedings, but to date has not done so. It was conceded on Ms Althuis's behalf that her case in the Australian proceedings "is not that the [Country B] Divorce Agreement was invalid" (although it was not conceded that it was valid).

1. In summary, under cross examination by senior counsel for Mr Paz, Ms M confirmed her evidence that, under Country B law, and as a consequence of entering into the Country B Divorce Agreement:
   • The Agreement covers all the consequences of their divorce, including all parenting issues, the divorce or dissolution of the marriage, and all the financial consequences of the relationship;
   • The Agreement concluded all of the financial consequences in two primary ways - first, by declaring there would be no compensatory allowance; and second, by confirming that each party would otherwise retain their own property;
   • The effect of the Agreement was that the parties would continue to jointly own the Suburb D property;
   • The parties' interests in the Suburb D property are to be determined at a time when they decide and in accordance with ordinary Country B law under the Civil Code;
   • Under such law, the Suburb D property is to be divided in accordance with the parties' (financial) contributions to the property and, if they cannot prove differential contributions, then equally;
   • Whilst either party may seek to claim a debt because of money expended by one party in relation to the property, neither spouse can pursue a compensatory allowance;
   • Each of the parties, with the benefit of lawyers, decided that there was to be no compensatory allowance;
   • The Agreement has ended the claims each party has against the other, irrespective of the location of their property, and is of "worldwide effect";
   • The Country B courts might view a claim for a property settlement using Australian law as fraudulent, and will not recognise a decision by a court of Australia that makes such orders;
   • The Country B courts are unlikely to stay the second Country B proceedings to permit the Australian proceedings to continue;
   • There are ways in which Ms Althuis could challenge the Country B Divorce Agreement in Country B;
   • From the perspective of Country B law and the Country B courts, if Ms Althuis wants to challenge the Country B Divorce Agreement, then the appropriate place to do so is Country B;
   • If an Australian court made an order for property adjustment in Ms Althuis's matter, that could give rise to a situation where the Country B courts award damages payable by Ms Althuis to Mr Paz.
2. The Single Expert was an impressive witness and did not relevantly qualify or retreat from her opinions during cross examination. I accept her evidence.

1. On behalf of Mr Paz, it was submitted that the Australian proceedings should be permanently stayed on any of the following bases:

(1) Ms Althuis is estopped from pursuing the Australian proceedings;

(2) the Australian proceedings constitute an abuse of process;

(3) Australia is a "clearly inappropriate forum" for determining the parties' dispute.

1. On behalf of Ms Althuis, the stay was resisted broadly on the basis that the Country B Divorce Agreement did not determine the rights of the parties in relation to their Australian property.
2. In relation to estoppel, it was submitted on behalf of Mr Paz that two forms of estoppel are potentially applicable - being claim estoppel and Anshun estoppel (so named after Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589). It was conceded that, following the decision in Clayton v Bant (2020) 272 CLR 1 ("Clayton v Bant"), res judicata estoppel does not apply due to the statutory nature of the rights being pursued in the Australian proceedings.
3. It was submitted that claim estoppel would operate to preclude the assertion by Ms Althuis of any right already determined and that Anshun estoppel would preclude Ms Althuis from now asserting a right which she reasonably could have - but refrained from - asserting in respect of a previous determination. It was submitted that it made no difference that the relevant rights here were dealt with by way of an agreement, given that the Single Expert's evidence was that the Country B Divorce Agreement operated as if it was an order of the court. Notwithstanding this submission, senior counsel for Mr Paz was not able to refer me to any authority where an agreement between the parties which was not embodied in consent orders had provided the basis for an estoppel.
4. On behalf of Mr Paz, it was said that Ms Althuis, by failing to pursue a claim for a compensatory payment and instead entering into the Country B Divorce Agreement, had elected not to seek any property adjustment. It was said, in summary, that the effect of the Country B Divorce Agreement was:

to determine in the same manner and as if a Court Order, all of the rights and entitlement of the parties in respect of their property, including in both [Country B] and Australia - and in so doing, determined the wife's available claims both in respect of the property of the husband and also in respect of the parties' joint property, being the very subject matter of the claims now sought to be maintained by the wife in this Court.

It was submitted that she is estopped from so doing.

1. On behalf of Ms Althuis, it was submitted that:

if any rights can be found to have been determined by the [Country B] Divorce Agreement (which is not admitted) they were not equivalent in nature to the parties' rights under the Act to seek the discretionary alteration of property interests conferred by s 79 of that Act, so no form of estoppel applies to preclude the Wife from making her s 79 claims

It was said that "the property rights exercised by the parties in their Country B Divorce Agreement were limited to continuing to hold and not divide any jointly owned property and waiving any claims with respect to those rights only." In particular, it was contended that there was:

no express provision about what was to happen to any individual parcel of matrimony-acquired property registered in their own name, jointly, or otherwise. There was no purported attempt by the parties to reference their Australian assets and finally adjust their interests in them.

1. On behalf of Mr Paz, it was submitted that, if it were found that the circumstances fall short of an estoppel, the Australian proceedings should be stayed on the basis that they are an abuse of process. It was said that proceedings can be stayed if "the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute" (UBS AG v Tyne (2018) 265 CLR 77 at [1] ("UBS AG v Tyne")). The circumstances which were said to constitute an abuse of process are set out in the written submissions on behalf of Mr Paz:

The circumstances in which these proceedings are brought by the wife lead readily to a conclusion that they demonstrate an abuse of process:

as outlined, the wife joined consensually and with the benefit of legal advice in entry of the Divorce Convention which as a matter of law addressed and was required to address the entirety of the financial consequences of the parties' marriage and separation in respect of all of their property interests wherever situate - the wife's initial failure to acknowledge the existence of any such agreement simpliciter and then her attempt to recast the effect of such agreement cannot be accepted as a matter of law in light of the evidence of [Ms M];

... the wife now seeks in substance and effect to pursue the very relief that she elected not to pursue in entering into the Divorce Convention;

indeed, the maintenance of these proceedings in direct conflict with and in breach of the terms of the Divorce Convention;

without any explanation being proferred [sic], the wife has not sought to engage the jurisdiction and power available in [Country B] to seek to impugn the pre-marital contract and/or the Divorce Convention, both prior to entry of the Convention and subsequently;

[r]ather by these proceedings, the wife seeks to revisit in this jurisdiction the very issues that she by her own actions abandoned and precluded herself from pursuing in [Country B] - giving rise readily to a conclusion that the wife seeks to engage this jurisdiction in an exercise of 'forum shopping' and in any event in a manner which patently offends the overarching purposes set out in s.67 of the Federal Circuit and Family Court of Australia Act 2021; and

[T]he only effect of the proceedings sought to be maintained by the wife can be to result in orders being made by this Court which:

• will not be recognised nor enforceable in [Country B];

• will be found to be 'fraudulent' in the relevant sense in [Country B], the very commencement of the proceedings in and of itself bearing such same character; and

• will give rise to a likely entitlement to damages in favour of the husband consequent upon such orders;

thereby seeking to maintain proceedings which can have not [sic] utility and only bring this Court into disrepute in the relevant sense; and

otherwise the maintenance of these proceedings has (and will continue) to result in significant and further costs to each party in both Australia and [Country B].

1. Submissions on behalf of Ms Althuis - both in relation to estoppel and abuse of process -referred to evidence that the parties did not intend to remain in undivided ownership of jointly owned property and had agreed to sell the Suburb D property, but that agreement was not realised. It was said that, when agreement was not reached and with the limitation period under the Act nearly expired, Ms Althuis appropriately commenced the Australian proceedings.
2. Finally, it was said on behalf of Mr Paz that this Court should not exercise jurisdiction in these proceedings on the basis that Australia is a "clearly inappropriate forum" and thus the maintenance of the Australian proceedings would be vexatious or oppressive (CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345).
3. In response, on behalf of Ms Althuis, it was said that the relevant factors point against a conclusion that Australia is a clearly inappropriate forum.

1. As the party seeking the permanent stay of the Australian proceedings, Mr Paz bears the onus of establishing a factual foundation for the operation of claim estoppel or Anshun estoppel.
2. The policies underlying both forms of estoppel were set out by Kiefel CJ, Bell and Gaegler JJ in Clayton v Bant at [34], being:

the twin policies of ensuring finality in litigation (thereby promoting respect for and efficient use of courts as well as avoiding inconsistent judgments) and of ensuring fairness to litigants (by sparing them the stress and expense of duplicative proceedings ...

This articulation, as well as the various descriptions of the requirements of the doctrines which refer to a previous "ruling", "earlier proceedings", "judgment" and "determination", invite the question of whether these forms of estoppel have a role where, as here, the parties have previously resolved a dispute between them but without recourse to litigation. It was the Single Expert's evidence that the Country B Divorce Agreement is "neither a 'notarized document' nor a judicial order (court decision)", although it has effect as an order of a court in the sense that it is enforceable.

1. While it is apparently uncontroversial that a consent order may give rise to an estoppel - including because it involves a decision "on the merits" (as opposed to a decision on procedural grounds) - senior counsel for Mr Paz was unable to refer me to any authority where an estoppel was successfully argued based on a previous agreement between the parties which had not been embodied in consent orders.
2. Notwithstanding a concession on behalf of Ms Althuis that no distinction should be drawn based on the form of the "determination" (being an agreement not embodied in consent orders but having the same effect as an order of the court), I need to be satisfied that the principles identified in the authorities are engaged on the facts of this case. In the absence of any identified authority to the effect that a party may, on the principles of claim estoppel or Anshun estoppel, be estopped from bringing a claim under the Act based on an agreement which is not embodied in an order of a court (that is, involving a determination "on the merits"), I am not so satisfied. I am not persuaded by the submission on behalf of Mr Paz that I can be satisfied that a determination has been made on the merits because, in accordance with Country B law, lawyers engaged by the parties played a role in ensuring compliance with the law.
3. It appears to me that, at the heart of claim and Anshun estoppel is a bar on relitigating issues determined by a court (whether by consent or otherwise). I am not persuaded that these forms of estoppel have a role to play on the facts of this matter as the law currently stands.
4. Accordingly, Ms Althuis is not estopped from pursuing the Australian proceedings.

1. I am asked to find that the Australian proceedings are an abuse of process in that "the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute" (UBS AG v Tyne at [1]). While the circumstances in which proceedings have been declared an abuse of process have often involved a subsequent prosecution of issues which have already been the subject of litigation (although falling short of an estoppel), abuse of process is not limited to that category of case, and the broad principles apply. A determination that proceedings are an abuse of process is, however, a very high bar - noting that such a determination involves, in effect, a summary dismissal of the applicant's claim. I am satisfied that the bar is met in relation to these proceedings.

1. First, as to the interests of the parties themselves, the prosecution of the Australian proceedings constitutes unjustifiable oppression to Mr Paz. The Australian proceedings involve not just "forum shopping" by Ms Althuis, but forum shopping in a context where she has, by the Country B Divorce Agreement, agreed that the parties hold the Suburb D property as joint owners and disavowed any claim to an adjustment of property interests by way of the compensatory payment that she could have sought under Country B law. Submissions to the effect that the parties did not, by their agreement, "deal with" the Suburb D property are not sustainable given the expert evidence. If it is the case that Ms Althuis did not believe that the agreement "dealt with" the Suburb D property, then her remedy lies elsewhere.
2. Having entered into that agreement, she is no longer entitled to pursue such a compensatory payment in Country B. And yet, in these proceedings, she seeks an adjustment of property interests such that, contrary to the parties' Country B Divorce Agreement, she would receive the Suburb D property as well as a "cash adjustment" to account for Mr Paz's ownership of shares in J Pty Ltd (which, pursuant to the Country B Divorce Agreement are Mr Paz's separate property). Ms Althuis does not claim that the Country B Divorce Agreement is invalid (although she does not admit it is valid). She entered the Agreement with the benefit of independent legal advice and signed it after a "cooling off period."
3. Further, there were legal avenues other than commencing these proceedings (being avenues which are not inconsistent with the Country B Divorce Agreement) by which Ms Althuis could have achieved the sale of the Suburb D property and distribution of the proceeds. Those avenues included at least proceedings for partition and sale pursuant to s 66G of the Conveyancing Act 1919 (NSW), and Country B proceedings for liquidation and division of jointly held property (of the kind constituted by Mr Paz's Country B proceedings 2).
4. Mr Paz was entitled to assume that his separate property would be subject to no further claim by Ms Althuis, and to proceed on that basis. The fact that he commenced both sets of Country B proceedings after Ms Althuis commenced these proceedings must be seen in this context. If these proceedings are not stayed, he faces litigation of matters which were resolved between the parties in 2023. He faces having to litigate not only in the Country B courts (where he seeks to enforce and implement the Country B Divorce Agreement) but also here. Even so far as Ms Althuis's interests are concerned, any orders made here will not be enforced in Country B, inconsistent orders could be made as between the two jurisdictions, and her maintenance of these proceedings may constitute fraud in the Country B courts and may result in an award of damages to Mr Paz.
5. These proceedings therefore constitute oppression to Mr Paz and such oppression is unjustifiable.

1. It is unlikely that Country B proceedings 2 will be stayed to await the outcome of the Australian proceedings. Country B proceedings 2 deal with the Suburb D property and are likely to result in the sale of that property, and distribution of the net proceeds as to 50 per cent to Mr Paz and 50 per cent to Ms Althuis (subject to any debt one may establish with respect to the other). In Australia, the Court has a broad discretion, and Ms Althuis seeks entirely different orders in the Australian proceedings in respect of that same property. There is therefore a significant risk of inconsistent orders being made in the two jurisdictions. This necessarily brings the administration of justice into disrepute. Any Australian orders will not be enforced in Country B. Country B orders in respect of Australian property will be enforced in Country B. Given the pursuit of these proceedings by Ms Althuis may be conceived as fraud in the Country B courts, the making of orders in this Court raises issues of international comity.
2. Otherwise, I accept the submissions on behalf of Mr Paz listed at paragraph 26 above, save for noting that the "overarching purpose" provision is now s 95 of the Act rather than s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

1. I am satisfied that the Australian proceedings are an abuse of process in that they both constitute an unjustifiable oppression to Mr Paz and serve to bring the administration of justice into dispute.

1. In the event I am wrong in finding that the Australian proceedings are an abuse of process independently of the issue of forum, I consider the alternate argument that Australia is a clearly inappropriate forum for litigating the parties' dispute.
2. The onus of establishing Australia is a clearly inappropriate forum falls on Mr Paz.
3. I do not accept the characterisation on behalf of Mr Paz that "here the issue is as between a concluded determination in Country B and an attempt to relitigate issues in Australia." An application to stay local proceedings on the ground that Australia is a clearly inappropriate forum is grounded in the fact that there are proceedings on foot both here and overseas - otherwise the issue is one more broadly of abuse of process. The relevant comparator in considering whether Australia is a clearly inappropriate forum is therefore the Country B proceedings - although the existence of the Country B Divorce Agreement and the fact that the Country B proceedings concern the validity, enforcement and implementation of that Agreement are relevant matters.
4. I have considered whether the fact that Country B proceedings 2 are not proceedings for property adjustment, but rather proceedings to liquidate property jointly owned by the parties, means that the proceedings are not parallel. I am satisfied that, given both sets of proceedings are between the same parties and seek orders in respect of the Suburb D property in the context of the breakdown of their marriage, they do deal with the same controversy. The fact that Country B proceedings 1 have been commenced in the wrong court and are therefore unlikely to be successful does not weigh with me in circumstances where the expert evidence is to the effect that those proceedings are not necessary because the Country B Divorce Agreement is valid in any case.
5. I now turn to consider the factors which were identified by the High Court in Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 as relevant to the question of whether Australia is a "clearly inappropriate forum" to determine the parties' dispute.

1. There is no issue that Mr Paz and Ms Althuis can participate on an equal footing in both countries.
2. Both parties and their child reside in Country B and have done since at least early 2023 (the parties having previously lived and married there). There is the inevitable additional expense and difficulty of travel to Australia at least for the purposes of any final hearing. That is a relatively minor matter.
3. The costs incurred by the parties in these proceedings have largely been incurred in respect of the interlocutory applications with which these Reasons deal - those expended costs have not progressed the substantive proceedings. There is no reason to think that the Country B proceedings will be more costly than the Australian proceedings.
4. To the contrary, at least Country B proceedings 2 are of significantly lesser scope than those being agitated in Australia by Ms Althuis - the Single Expert described the narrow issues with which those proceedings are concerned as being the liquidation of the parties' joint interests in property (the Suburb D property). In the Australian proceedings, Ms Althuis seeks to reagitate the parties' property dispute, giving rise to issues of, for example, the value of Mr Paz's shares and the value of any property owned by the parties in Country B. That would not weigh heavily if I was satisfied that Ms Althuis had a legitimate purpose in bringing the proceedings here. I am not.

The connections to jurisdiction and issues in dispute

1. The connection to Australia is that the parties lived here between 2015 and 2022 or early 2023, own a property at Suburb D, have an Australian mortgage loan and Australian bank accounts and superannuation and Mr Paz owns shares in a company which is registered in Australia. There is no evidence about what property Mr Paz owns in Country B. It is not possible to say that the bulk of the property owned by the parties is located in, or connected to, Australia but certainly there is significant property here. Relatedly, I cannot be satisfied that, if the Australian proceedings are allowed to continue, there will not have to be valuations of Country B properties and related disclosure (notwithstanding that Ms Althuis seeks that the parties retain their property in Country B).
2. More significantly, as was submitted on behalf of Mr Paz, "[t]he parties have on 2 occasions, independently and with the benefit of legal advice, elected to submit to Country B jurisdiction in respect of their marital affairs, by means of each of the pre-marital contract and Divorce Convention." The parties have not only chosen Country B as their home, but have chosen for their divorce and financial settlement to be determined under Country B law. This factor points in the direction of the order sought by Mr Paz.

1. The Single Expert's evidence was clear; the Country B courts will not enforce Australian orders but orders in respect of the division of the Suburb D property made in Country B will be able to be enforced through the Country B courts. The whole of the parties' dispute is therefore able to be resolved in the Country B courts. The Country B Court is unlikely to stay Country B proceedings 2. As set out above, there is a significant risk that, if both the Australian and the Country B proceedings continue, inconsistent orders would be made. These factors point in the direction of the order sought by Mr Paz.

The order and stage of the relevant proceedings

1. The Australian proceedings were commenced before the Country B proceedings. That would normally be a significant (but not determinative) matter. In this case, however, it must be seen in the context that the Country B Divorce Agreement preceded the Australian proceedings by about 12 months, and the Country B proceedings are linked to that Agreement. In the case of Country B proceedings 1, orders are sought in relation to the validity and enforceability of the Agreement. In Country B proceedings 2, orders are sought for the liquidation of assets which - as a result of the Country B Divorce Agreement - continue to be held jointly. Mr Paz was entitled to rely on the Country B Divorce Agreement and to bring Country B proceedings when Ms Althuis made clear, by commencing these proceedings, that she did not intend to comply with the Agreement. The fact that the Australian proceedings were commenced before the Country B proceedings does not therefore have the significance which it otherwise would.
2. Both sets of proceedings are in their early stages. Save for the resolution of the Application and Response with which these Reasons deal, neither the Australian proceedings nor the Country B proceedings have progressed beyond the filing of Initiating and Responding documents.

1. Ms Althuis is at an advantage in these proceedings compared with the Country B proceedings because, having entered into the Country B Divorce Agreement, she no longer has available to her a claim for any compensatory payment and is entitled only to what she legally owns. In these proceedings, she claims an adjustment of the parties' legal interests in property, taking account of Mr Althuis's ownership of the shares in J Pty Ltd. The effective resiling from what was agreed by way of the Country B Divorce Agreement means that the juridical advantage Ms Althuis has in these proceedings is not legitimate. These matters are amplified above. They point in the direction of the order sought by Mr Paz.

1. Australia is a clearly inappropriate forum for determining the dispute between the parties, and the maintenance of the Australian proceedings would be oppressive.

1. The order sought by Mr Paz is that the proceedings be permanently stayed and I accept the submission of senior counsel for Mr Paz that such an order (rather than an order for dismissal) is the appropriate order in the context of the determination of a preliminary issue, rather than a determination on the merits. I note, however, that an order could have been - but was not - sought pursuant to s 102QAB of the Act, which enables the Court to dismiss proceedings if satisfied they are an abuse of process. No order is sought for a temporary stay (for example, pending the outcome of the Country B proceedings) and that would not be an appropriate order in circumstances where I have found that the Australian proceedings are an abuse of process. Accordingly, the proceedings are permanently stayed.

1. Given my determination that the Australian proceedings be permanently stayed, Ms Althuis's application for orders which might broadly be described as "anti-suit injunctions" cannot be successful - there are no Australian proceedings to protect from the interference of foreign proceedings. I dismiss the Response.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Behrens.