Adeen and Adeen

[2010] FamCA 438

FAMILY COURT OF AUSTRALIA

ADEEN & ADEEN [2010] FamCA 438

FAMILY LAW – PRACTICE AND PROCEDURE – Forum – Stay

APPLICANT: Mr Adeen

RESPONDENT: Ms Adeen

FILE NUMBER: SYC 1902 of 2009

DATE DELIVERED: 4 May 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 4 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Laurie

SOLICITOR FOR THE APPLICANT: Robyn Sexton & Associates

COUNSEL FOR THE RESPONDENT: Ms Cleary

SOLICITOR FOR THE RESPONDENT: Pearson Family Lawyers

Orders

1. That a stay of all parenting and financial proceedings instituted in this court by the husband is granted for a period of three (3) weeks.

2. That in the event that within 21 days the wife provides the husband consent to the husband spending time with the children on each alternate weekend from 5pm on Friday until 5pm on Sunday the stay referred to in Order 1 above shall thereby become permanent.

3. That on the husband’s return to England he shall spend time with the children A born … October 1994, E born … October 1996, D born … May 1998, and M born … October 2001 each alternate weekend from 5pm on Friday until 5pm on Sunday commencing on the first weekend of his return until interim or final orders are made for custody of and/or contact with the said children by an English court.

IT IS NOTED that publication of this judgment under the pseudonym Adeen & Adeen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  SYC 1902 of 2009

MR ADEEN

Applicant

and

MS ADEEN

Respondent

REASONS FOR JUDGMENT

1. In these proceedings, the husband filed his initiating process in December 2009.  In his application, he sought both property and children’s orders, orders which – in relation to the children – might well be regarded as contact rather than residency orders.  He filed an amended and more specific initiating application in court today.  In that application, he, in effect, sought specific contact orders as well as shared parental responsibility, but clearly conceded that the three youngest children were to live with the wife.  The wife commenced proceedings in the English jurisdiction for children’s orders in March of this year.  She now, in response to the husband’s application, has sought a stay of the Australian proceedings for property orders as well as for children’s orders. 

2. Both parties and their partners live and work in London.  The parties’ partners have families who live in England.  The husband’s parents live in Melbourne, the wife’s mother lives in New South Wales, in Australia. She is not quite certain where her father lives because she is out of contact with him.  He probably lives, according to her, in Australia.  Both parties are Australian citizens.  The husband says that he is domiciled in Australia.  The wife is a British citizen and she says she is domiciled in Britain. 

3. The parties commenced living together in Sydney, where they were born, in 1989.  They were married in Sydney in 1993 and lived together in Australia until 1991.  They went to the United Kingdom in 1991 and remained there for about a year, or a little more.  In 1993, they went to Hong Kong where they stayed until 2000.  In 2000, they returned to Australia and lived here until 2003.  They then moved to the UK and have lived there ever since.  There are four children aged between 15 and 8 years.  The oldest was born in Australia, the rest were born in Hong Kong and all are undergoing their education in London. 

4. Although there have been children’s proceedings commenced by the wife in England, she has not commenced property proceedings there.  The parties were divorced in Australia by an order of the Federal Magistrates Court on 5 July 2009. The English property legislation provides that, in order to commence property proceedings in England where the divorce was elsewhere, leave must be granted.  The property involved is virtually all in Australia by way of value. However, it solely consists of cash in a bank.  The cash came from the sale of the last matrimonial home that the parties had in Australia.  There is something like $1 million or a little less in cash held in an account in the husband’s name in Australia.  There is not much property in England.  There is a little personal property of value; mainly household objects together with a car or two. 

5. According to the evidence before me, if the wife, in those circumstances, seeks leave to commence property proceedings in England, that leave will be granted.  The stay that the wife seeks is for both the children’s proceedings and the property proceedings which have been commenced by the husband.  In my view, she has no basis for seeking a stay of the property proceedings because there are no property proceedings on foot in England.  There is nothing in the affidavits that she has put before me to indicate that she intends to commence them, although it may well be that she will. 

6. In relation to the children’s proceedings, the law is very clear.  It is, in cases where there is a clash of forums, the application should be granted only if the local proceedings where the stay is being sought is clearly an inappropriate forum.  One determines whether the local forum is inappropriate by deciding whether or not it would be oppressive or vexatious to continue the proceedings locally.  The words “oppressive” and “vexatious” have been expanded to include the definition, in the case of oppression, of “burdensome,” and in the definition of vexatious, “troublesome.”

7. There seems to be some substantial overlap in relation to the suggested extended meanings of oppression and vexation, but, in my view, these two words are so clear in their meaning that there is little need for their further definition.  If the proceedings are going to cause one or other of the parties or the children undue upset, trouble, anger, or extreme inconvenience, one would have little difficulty in finding them to be oppressive and/or vexatious.

8. Here, in relation to the property proceedings, the property of the parties is such that, apart from the issue of the cost of travel and staying in Australia for the purpose of the proceedings, to conduct the proceedings in Australia would be little more difficult than to conduct them in England.  There could be little dispute over values, although in relation to paintings and a statuary, there could be a need to have valuations. Those valuers would undoubtedly be from England, and therefore, to cause them to have to travel to Australia in the event that cross-examination of them is required would be a burden on whoever must fund that travel because of the cost of it; but, all in all, it would not be impossible for their evidence to be heard by telephone or video. The same can be said about any other valuers who might be engaged.  Nevertheless, overall, it would be more satisfactory for any judge hearing any issue of valuation of the property to be able to hear it with all valuers available to be seen in court while giving evidence.

9. In relation to the children’s matter, the proceedings in England have already commenced.  There is already an appointment in approximately one month’s time for the parties to undertake the processes involved in attempting to attain their agreement on future orders for the children.  However, there is good reason to fear that the parties in this matter will not be able to agree on orders, and to further fear that these particular proceedings will have to be determined by a judge.  In the event that they are, either in Australia or England, it is likely to be appropriate for the children to be seen by a family specialist in order to determine their needs, their wishes, and all of the other relevant things that one must consider in deciding what orders to make for residence and other aspects of children’s continuing care.

10. It would be extraordinarily inconvenient to require the children to be brought to Australia for the purposes of them being seen by experts or an expert.  One would expect that, at first, the expert in Australia would be a family consultant.  One does not know what a family consultant might say, and there is always the possibility – and it is not really discountable – that there might then be a need to appoint a court expert who is a psychiatrist.

11. In those circumstances it is also possible that the children might need to have more than one consultation with each.  The children would have to be taken from school, probably, to fit in with the calendar of the experts, and are likely to miss time from school as a result.  The alternative is likely to involve too much delay, that is, to fit the children’s trips to Australia into their school holiday periods.  The cost of bringing the children to Australia and keeping them here during the times that would be needed for experts to see them is also likely to be considerable.

12. But, to me, there is a more pressing reason why to commence proceedings in Australia would be burdensome and oppressive to the wife.  It is that in the event that the wife in particular, although it actually applies to either of these parties, feels the a need to make an urgent application in relation to some immediate dispute that they are having over the children, the application will have to be made in Australia.  It may well require or be appropriate for the parties or one of them to come to Australia for the purpose of that application.  It certainly seems to me that when parties make applications to the Court and are not present, their perception will be that they did not have the best possible prospect of success. That may well be the fact.  To have to continue to make applications, if they are needed, to the Family Court in Australia would be entirely oppressive and burdensome for the wife.  The cost alone, even though English lawyers are probably dearer than Australian lawyers, is likely to be such that the wife would be somewhat inhibited in bringing applications that she would otherwise be likely to bring. The cost of travel, accommodation and loss of income is likely to be high.

13. Because there is an interrelationship between children’s proceedings and property proceedings, I think that it would be oppressive and vexatious to the wife to allow the property proceedings to continue in Australia while children’s proceedings are continuing in England.  I should say about the property proceedings that although the wife has not commenced them, she has made preparations to commence property proceedings, and it is not the case that a stay cannot be granted on the basis of inappropriate forum unless the proceedings have already been commenced.  It is sufficient that proceedings are going to be commenced.

14. In all of the circumstances, I think that this is a matter where a stay should be granted, because I am satisfied that it is clearly inappropriate to bring the proceedings in Australia, provided something can be done about the issue relating to the children’s contact with the husband, in the time between today and when an English court makes interim orders or, for that matter, final orders.

15. Currently the parties are in conflict over the contact the children should have with the husband.  The husband says he ought to have a clear regime so the children and he know where they stand.  The wife is of the view that the children should only see the husband when it suits the children.  The husband filed proceedings to obtain more certainty about when he is able to have the children in December last year.  It has taken until today for those proceedings to be listed for hearing on an interim basis.  Although the children’s proceedings have commenced in England, they are far from being dealt with by the Court.

16. One does not know, if the wife or husband were to make an application for interim orders of an urgent nature, how long those orders would take to be heard to finality by a judge in England.  It is likely to be some time.  The English process is, in relation to final orders, somewhat different to that of Australia in that the parties do not state the orders they seek when commencing the litigation.  They only state orders when seeking interim orders or when the attempts at conciliation have failed.  One does not know what the parties will be seeking, if the matter is heard in England, as to the children’s contact with the husband and wife, respectively, and their residence.

17. It is my view that the parties are highly conflictual.  Their affidavits indicate that to me.  However, neither party says anything of substance to suggest that the other is incapable of spending a reasonable amount of time caring for the children.  Currently the children live with the wife.  The husband has sought contact orders, which are detailed and intended to cover all of the needs over significant time into the future.  If I simply order a stay, there will be continuing uncertainty and therefore increased conflict between the parties over the time the husband spends with the children until such time as interim orders are heard by an English judge. I think that it is in the children’s interests that, until such time as orders are made for either interim or final contact between the husband and children, this court should make some provision for his contact with them that prevents continuing conflict so far as the Court can prevent it.  My intention is to simply fill in what would otherwise be a lacuna in certainty as to the children’s rights to see their father.

18. This would not prevent the wife from seeking orders in an English court which are different from the interim orders I have made or, for that matter, prevent the husband from doing so.  It is my understanding that, if I was to make orders for contact,  these orders could be registered in England, but the process of gaining enforceability of those orders is cumbersome and, in fact, more cumbersome than the situation which would exist if I was to make it a condition of granting a stay that the wife provide the husband with her consent to orders and the husband was to use that consent to obtain consent orders in England. 

19. It seems to me to be most appropriate to make such a condition one of any stay I might grant, because in considering the grant of a stay, I must bear in mind the children’s best interests.  Even though that best interest is not paramount, it is relevant in the granting or refusal of a stay. It is my view that to impose a condition on the wife which ensures that there is no lacuna in certainty of the children’s rights to see their father, is in the children’s best interests. 

20. Accordingly, I think it is appropriate to grant a stay of both the property proceedings and of the children’s proceedings in this court for the period of three weeks.  If, within that three weeks, the wife provides the husband with her consent to the husband having contact with the children each alternate weekend from 5 o’ clock on Friday till 5 o’ clock on Sunday the stay shall become permanent.  That is, the stay of both the children’s orders and the property orders, for the reason I have already referred to; to have one set of proceedings in one court and the other in the other court clearly makes one of the courts a clearly inappropriate forum. The Australian Court is the inappropriate forum in the circumstances.  The children are better off if the matter is litigated in England.  I should say that I do not intend this judgment to prevent either the husband or the wife seeking quite different children’s orders in England.  My only intention is to ensure, if there is a delay in the hearing of any orders in England, to ensure that there is some certainty in the children’s rights to see their father.

21. It is appropriate that the children be able to see their father because there is nothing in the mother’s affidavit that suggests that he should be disqualified from having contact with the children, or that the children will be in any way harmed by seeing their father and staying with him on alternate weekends. 

22. Because of the nature of the proceedings, and the fact that the parties are from England, and the husband is in Australia and I do not know when he is going back, it is appropriate to make some interim orders in Australia, which can be registered in England in any event.  The wife will be free to challenge those in England.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              3 June 2010