Dawid & Nilima [2025] FedCFamC1F 745 (22 October 2025)

1. The Respondent be at liberty to take the child X born 2014 ("the child") outside the Commonwealth of Australia during any period she have care of the child or at any other time by written agreement between the parties, provided that she provide to the Applicant:

(a) at least 42 days written notice of the proposed travel;

(b) at least 21 days prior to the proposed travel, a copy of the return airline ticket to Australia and an itinerary of the cities and towns the child will be staying at; and

(c) at least 14 days prior to the proposed travel, a copy of the travel insurance policy covering the child for the duration of such travel.

1. If the Applicant's time with the child is suspended as a result of the Respondent travelling outside the Commonwealth of Australia then the Applicant shall have make up time for the same period as the suspended period as agreed between the parties in writing and failing agreement that make up time shall be taken from the Respondent's time in the following school holiday periods as nominated in writing by the Applicant.
2. For the purposes of giving effect to Order 4 herein:

(a) the Respondent be at liberty to collect the child's Australian original passport from the Respondent's solicitor after compliance with Order 4 herein;

(b) the Respondent return the child's Australian original passport to the Respondent's solicitor within 48 hours of the child's return to Australia; and

(c) the Respondent retain the child's Australian original passport at all times whilst the child is outside the Commonwealth of Australia.

1. Costs be reserved.
2. The matter be adjourned for Interim Defended Hearing before the Hon. Justice McNab on 29 January 2026 at 10:00am.

1. These orders permit the Respondent to travel to Country H for the J school trip thereby activating the alternative orders provided for by Order 15 of the orders by consent dated 20 October 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 Dawid & Nilima has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These proceedings concern the applicant, Mr Dawid ("the husband") and the respondent, Ms Nilima ("the wife"). There is one child to the marriage, X born 2014 ("the child").
2. By Orders 5 and 6 of those made on 24 July 2025, the Court ordered:

Injunction

1. The Wife and Husband be restrained by injunction from taking any further steps in the Chinese proceedings pending the adjourned date, except with the written agreement of the other party.

Single Expert

1. The wife be at liberty adduce evidence from an appropriately qualified expert as to the China proceedings, at her expense.

1. Orders 17 and 18 of those orders also provided for the wife's solicitor to retain the child's passport and for it not be released to either party without the written consent of both.

1. The matter was listed for an interim defended hearing on 17 September 2025. By an Amended Response filed on 15 September 2025, the wife sought, amongst other things, orders that she be at liberty to continue the proceedings in China and for the child to travel to China on the condition that she informs the husband of the departure and return dates 14 days prior to travel. Other orders were sought in relation to property and parenting, and consent orders were made in respect of those matters. The question of the proceedings in China and overseas travel remains unresolved.

1. The husband, by way of his Outline of Case, relied upon the following documents:

(a) affidavit of Ms B filed 15 September 2025;

(b) affidavit of Mr Dawid filed 11 September 2025;

(c) interim orders of 24 July 2025;

(d) affidavit of Ms C filed 21 July 2025;

(e) interim orders of 18 July 2025;

(f) Initiating Application filed 14 July 2025;

(g) affidavit of Mr Dawid filed 11 July 2025;

(h) affidavit of Ms C filed 11 July 2025;

(i) Notice of Child Abuse, Family Violence or Risk filed 11 July 2025; and

(j) Financial Statement filed 11 July 2025.

1. The wife, by way of her Outline of Case, relied upon the following documents:

(a) Amended Response to Initiating Application filed 15 September 2025;

(b) affidavit in reply of Ms Nilima filed 15 September 2025'

(c) affidavit of Ms D filed 15 September 2025;

(d) affidavit of Ms Nilima filed 14 August 2025;

(e) Financial Statement filed 14 August 2025;

(f) tender bundle filed with affidavit of 14 August 2025; and

(g) court book.

1. There was some confusion as to the orders that were sought by the wife in relation to the parenting proceedings in China. The solicitors for the wife confirmed that the wife does not intend to continue the proceedings in China in respect of parenting and child support matters and that the wife intends to only proceed with property and financial applications in China if orders are made discharging the orders of 24 July 2025 in respect of the proceedings in China.
2. The relevant authority the Court was referred to was Lan & Hao (No 2) (2017) FLC 93-795 ("Lan & Hao"), which sets out the relevant principles to be considered when dealing with an anti-suit injunction and foreign jurisdictions.
3. In summary these principles are:

(a) the Court has an inherent power to restrain a person from pursuing foreign proceedings;[1]

(b) a court may exercise its jurisdiction to restrain unconscionable conduct or the unconscientious exercise of legal rights;[2] and

(c) the mere existence of proceedings in two different countries at the same time does not itself constitute vexatious or oppressive conduct.[3]

1. A key issue that the Court must consider when a party seeks the stay or dismissal of the proceedings on the basis the Court is a clearly inappropriate forum is whether the controversy between the parties is the same in both proceedings, whether or not complete relief is available in the local jurisdiction and whether there is nothing to be gained in the overseas proceedings or whether, on the other hand, the overseas proceedings will give rise to additional or other remedies.[4]
2. The following matters also arise for consideration:[5]

(a) no question arises unless the Courts of the respective jurisdictions both have jurisdiction with respect to the parties and their marriage;

(b) if both countries have jurisdiction, it would be necessary to consider whether both recognise the other's orders and decrees;

(c) if the orders of the foreign court will not be recognised in Australia that will ordinarily dispose of any suggestion that the local proceedings should not continue;

(d) if the orders of the foreign jurisdiction are recognised in Australia, it will be necessary to consider whether any orders need to be enforced in other countries and, if so, the relative ease with which that can be done;

(e) it will be necessary to consider which forum can provide more effectively for the complete resolution of the controversy between the parties.

(f) the order in which proceedings were commenced;

(g) which stage that they have reached and the costs that have been incurred;

(h) the connection of each party with each of the jurisdictions and their capacity to participate in the respective proceedings on an equal footing having regard to their understanding of language and financial resources;

(i) the consideration of competing jurisdiction is not a balancing exercise;[6]

(j) it is possible that there can be different outcomes as to parenting and financial issues raised; and

(k) in order to respect comity between jurisdictions, the power to grant injunctions in restraint of foreign jurisdictions should be exercised with caution.[7]

1. It is noted this is not an exhaustive list and each case will involve particular considerations.

1. The wife commenced the proceedings in China by filing a Statement of Civil Claim on 24 April 2025. The husband commenced proceedings in this Court by filing an Initiating Application on 11 July 2025.
2. The Statement of Civil Claim in the proceedings in China contains a bare assertion that the husband has concealed, transferred, damaged or squandered an estimated RMB3,000,000 over the course of the marriage.
3. The reasons for the claim assert that the husband has transferred large amount of marital assets without any detail as to what those assets are and why. The wife's reference, in her affidavit filed in support of the application, to the allegations raised in the proceedings in China regarding the husband's transfer of funds is equally lacking in detail, although that is said to arise from the husband's failure to provide adequate disclosure.
4. The husband's submissions in relation to the question of maintaining the proceedings in China is that the continuation of the proceedings in China is vexatious where at paragraph 7 of his Outline of Case he asserts:

1. With respect to whether the Wife ought to be permitted to continue the China proceedings:

(a) This court has the power to grant an anti-suit injunction by reason of the court's implied power to protect the integrity of its own processes and pursuant to section 114(3). > > (b) If the Wife is not restrained, there will be two courts seized with an identical issue, the division of the parties' property interests with the potential of different outcomes in both courts. > > (c) The parties have been engaged in negotiations via their respective Australian lawyers since April 2025, and participated in Family Dispute Resolution in Australia in June 2025. The parties have also participated in proceedings in this honourable court since July 2025.In contrast, the Husband has not participated in the China proceedings. > > (d) Both parties have Australian lawyers; > > (e) The parties and their child are all Australian citizens, and live in Australia; and > > (f) To enable the China proceedings to continue in circumstances where there is an application for property and parenting in this honourable court would be vexatious and oppressive.

5. The wife relied on an expert report of Ms D who has expertise in relation to the Chinese jurisdiction. Her opinion is attached to an affidavit filed 15 September 2025.
6. The wife has confirmed that the only claim that she wishes to press in relation to the proceedings in China is the financial claims regarding property in China. It is not clear whether she presses a claim for spousal maintenance, but she does not press a claim in relation to parenting or child support.
7. In relation to the question of whether complete relief is available in either Court, the expert expressed the following opinions as summarised at paragraph 14(c) of the wife's Outline of Case:

(c) Ms [D] opines in her report as follows:

(i) If the effective judgment made by an Australian court involves the adjustment of real estate located in China between the spouse parties, the court will not recognise and enforce it. According to Section 34 of the Civil Procedure Law 2023 Amended, an action instituted for a real estate dispute should be under the people's court at the place where the real estate is located. It is the exclusive jurisdiction of the Chinese people's courts. Besides, according to Section 300 and Section 301 the Civil Procedure law 2023 Amendment, foreign court has no jurisdiction over a case if it under the exclusive jurisdiction of the Chinese people's court. Thus, a people's court will render a ruling not to recognize and enforce the judgment or ruling under the circumstances that the foreign court has no jurisdiction over the case.

(ii) If an effective judgment made by an Australian court involves the adjustment of personal property located in China between the spouses, the court may generally not recognise and enforce it. In the Letter of Reply of the Supreme People's Court on Request for Instructions Re Application of [L Ltd] for Recognition and Enforcement of Australian Court Judgment (Document Number: Order No. [...]of the Supreme People's Court), it states, China has not concluded or acceded to an international treaty with Australia on the mutual recognition of court judgments and rulings, not has a corresponding reciprocal relationship been established...

(iii) I tend to think that orders for the adjustment of property located between the spouses parties made by the Australian Court generally are not enforceable in China. For the same reason, orders about the child support and child custody made by the Australian Court are also generally not enforceable in China from my perspective.

(Emphasis per original and citations omitted)

1. By reason of the opinions expressed by the expert (whose opinions were not challenged), I accept that there is relief available in the proceedings in China in relation to the assets held in China that are not available in Australia and in that regard, I refer to Lan & Hao:
   1. Looked at in this light, there is something to be gained in the foreign proceedings - that is, something additional to the Australian proceedings - in that the husband could obtain an order for a payment of money in China which is enforceable in China. Whilst it is true that an Australian court could fashion orders that took account of any wrongful disposal by the wife of assets which otherwise would have been treated as joint property in China, that court could not make an order enforceable in China for the wife to pay money or transfer assets to the husband. This is because the Chinese courts would not recognise such an order. Thus, as the wife does not live in Australia and only has assets in China, the only prospect that the husband has of obtaining an enforceable order for the payment of money to him is to obtain that order in China.
2. I accept that there is juridical advantage to be gained by the wife from the proceedings in China. I further note that it is not submitted that the parties do not have a connection to both jurisdictions. The wife commenced the proceedings in China prior to the Australian proceedings and has expended significant costs there. Equally, however, the proceedings in this Court are reasonably well advanced and I note that the parties are proceeding to mediation. Whilst the wife's claims in relation to financial matters in the proceedings in China are not well particularised, I do not find that the proceedings in China are vexatious and oppressive.
3. For these reasons, I find that there is no proper basis for maintaining the restraint imposed by the orders of 24 July 2025 and the Court will make orders accordingly to permit the wife to maintain the proceedings in China insofar as they relate to financial matters.
4. In relation to the wife's application to be released from the terms of the order which restrain the child from travelling internationally, the wife has submitted evidence to the Court of her reasons to travel to China and the benefits for the child travelling to China for sporting events, to meet with family and to meet other students from the school that she is now attending in Australia who will be travelling to China. There was no significant opposition to the claims made as to the reasons for the return to China. By reasons of orders made by consent after interim judgment in this matter was reserved, the wife also wishes to travel to Country H for a school trip for the child. I am satisfied that the wife's bona fide in wishing to travel with the child. Both parties recognise that the child is being educated in Australia (at considerable expense) and the wife is residing in a rental property in Australia. For these reasons, the Court will make orders allowing the wife to travel outside of Australia with the child on the terms outlined in the order.
5. As noted in court, there is a need to consider that the costs of proceedings relating to this litigation which will make significant inroads into the net assets of the parties. The Court will reserve the question of costs of the application.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab.