Bayfield and Bayfield - [2013] FCCA 975

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAYFIELD & BAYFIELD

[2013] FCCA 975

Catchwords:
FAMILY LAW – Divorce – Jurisdiction – whether Court should exercise jurisdiction – forum non conveniens – appropriate forum – whether clearly inappropriate forum – where parties were married in Israel – whether divorce proceedings should be heard in Israel or Australia – Australia not a clearly inappropriate forum.

Legislation:

Rabbinical Courts Jurisdiction (Marriage and Divorce) Act 1953
Penal Code of Israel 1977
Family Law Act 1975, s.39

Henry v Henry [1996] HCA 51; (1996) 185 CLR 571
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538
Navarro & Jurado [2010] FamCAFC 210; (2010) 247 FLR 374; (2010) 44 Fam LR 310
Gwiazda v Ber [unreported] No. 10631 of 1982
Brett v Brett (1969) 1 All ER 1007

Applicant:

MR BAYFIELD

Respondent:

MS BAYFIELD

File Number:

MLC 3948 of 2012

Judgment of:

Judge Riethmuller

Hearing date:

7 June 2013

Date of Last Submission:

7 June 2013

Delivered at:

Melbourne

Delivered on:

29 November 2013

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

No Appearance

ORDERS

A divorce order be made, such divorce order to take effect and thereby terminate on the thirtieth day of December 2013.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 3948 of 2012

MR BAYFIELD

Applicant

And

MS BAYFIELD

Respondent

REASONS FOR JUDGMENT

The Applicant applied for a divorce order on 6 May 2012.
The Respondent, through her solicitor, Amihoud Borochov, an advocate in Israel, sent a submission advising that he represented the Respondent. In the submission, the Respondent’s advocate outlines that divorce proceedings had been initiated by the Applicant in Israel in 2009. Both the Applicant and Respondent are Jewish, and immigrated to Israel, the Applicant husband from Australia and the Respondent wife from the US, under the Israeli law of return.
The parties met and married in Israel in accordance with a religious (Orthodox Jewish) ceremony in 1991.
The advocate submits that s.1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Act 1953 in Israel provides that:
Matters of marriage and divorce of Jews in Israel who are citizens or residents of the state are under the exclusive jurisdiction of the Rabbinical Courts.
There appears to be no doubt that the parties have been living in Israel since 1991 and continued to live there after they separated in 2009. The Applicant husband is now moving to Australia, being an Australian citizen, and has a residence in Melbourne.
The wife submits that on 28 December 2010 the Jewish religious court, the Netanya District Rabbinical Court, recommended that the parties should divorce. The wife appealed this judgment to the Greater Rabbinical Court in Jerusalem which rejected the appeal, holding that the divorce should be granted after the wife received fair compensation (16 January 2012).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bayfield and Bayfield

Details

AGLC: BAYFIELD & BAYFIELD [2013] FCCA 975
Case: [2013] FCCA 975
Decision Date: 29 November 2013

CaseChat Overview and Summary

In *Bayfield and Bayfield*, Judge Riethmuller of the Family Court of Australia considered an application for divorce. The specific dispute concerned whether Australia was an inappropriate forum for the divorce proceedings, given the existence of matrimonial proceedings elsewhere.

The primary legal issue before the court was whether there was a unity of matrimonial proceedings that would render Australia an inappropriate forum for the divorce. This required the court to consider the principle that issues arising between husband and wife are to be treated as a single controversy stemming from the matrimonial relationship.

The court had regard to the Full Court's comments in *Navarro & Jurado* and *Dobson and Van Londen*, which affirmed the application of the "unity of matrimonial causes" principle. This principle is relevant not only to applications for a stay of proceedings on the grounds of *forum non conveniens* but also to the grant of anti-suit injunctions. The court noted that while the Family Court might be an inappropriate forum for one matrimonial cause, it could still properly exercise jurisdiction over others, such as parenting matters or property located in Australia.

The court made a divorce order, which was to take effect and terminate the marriage on 30 December 2013.

Orders

Orders of the court

A divorce order be made, such divorce order to take effect and thereby terminate on the thirtieth day of December 2013.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I have also considered the question of whether or not there is a unity of matrimonial proceedings making Australia an inappropriate forum for the divorce proceedings. I have had regard to the comments of the Full Court in Navarro & Jurado [2010] FamCAFC 210; (2010) 247 FLR 374; (2010) 44 Fam LR 310 at paras.78, 83 and 150, that:[78] The concept of the marital relationship being the relevant “controversy” was again applied by this Court in Dobson and Van Londen [2005] FamCA 479; (2005) FLC 93-225. (An application for special leave to appeal to the High Court was refused.) On this occasion, Finn J was the presiding Judge and joined with May and Boland JJ in saying at [46] and [48] (emphasis added):As we indicated at the outset of this discussion, we accept for the reasons advanced in the submissions of Counsel for the husband, that the observations contained in the joint judgment in Henry concerning the need to treat issues arising between husband and wife as forming but one single controversy arising out of the matrimonial relationship, have application not only when considering a stay of local proceedings on forum non conveniens grounds, but also when considering the grant of an anti-suit injunction......As we have said, we are persuaded, having regard to the submissions of Counsel for the husband directed to the common test of vexation or oppression, that the passage in question from Henry would have application to the grant of an anti-suit injunction in relation to matrimonial proceedings, and thus the unity of matrimonial causes should be the starting point, so to speak, of any consideration of an application for such an injunction in such proceedings.…[83] In Sankil the Court determined that the appropriate course was to stand over the appeal to allow evidence to be provided concerning whether the Indian courts had determined they had jurisdiction. The Full Court foreshadowed that if the Indian courts assumed jurisdiction, there would be no basis to interfere with the decision to stay the Australian proceedings. In foreshadowing that intention, the Court clearly anticipated that the wife would, by that stage, have proved that she had indeed commenced divorce proceedings in India, thereby retrospectively justifying the trial Judge’s decision to stay that part of the proceedings as well.…[150] There have been a number of decisions of the Family Court which have applied Henry including Kahdemollah & Kahdemollah [2000] FamCA 1045; (2000) FLC 93-050; Steen & Black (2000) FLC 93-005; Park & Byon [2003] FamCA 121 (28 February 2003) and Sankil & Sankil [2007] FamCA 1381; (2007) FLC 93-351. In Kemeny v Kemeny [1998] FamCA 34; (1998) FLC 92-806, the Full Court (Finn, Kay and Maxwell JJ) held that although the Family Court may be a clearly inappropriate forum to litigate one matrimonial cause (for example, as in that case, where property orders had been made by an overseas court) it may nonetheless properly exercise its jurisdiction with respect to others (such as parenting matters, or with respect to property located in Australia).