Bayfield and Bayfield
[2013] FCCA 975
•29 November 2013
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 |
| 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).
The matter returned to the Netanya District Rabbinical Court, where ultimately the husband discontinued his proceedings.
The advocate for the Respondent also submits that if an Australian court was to grant a divorce order and the Applicant were to remarry, he would be considered to have committed an act of bigamy under the laws of Israel (referring to s.176 of the Penal Code of Israel 1977).
Whilst no response was filed, the matter was referred by the Registrar to a Judge of this Court for hearing.
On 22 February 2013, it was ordered that the parties file and serve any affidavits upon which they intend to rely within 28 days and I set the matter down for hearing. I also ordered that the wife’s objection letter, dated 13 November 2012, be treated as a conditional response, notwithstanding non-compliance with the Rules.
An affidavit was filed by the Applicant husband and an affidavit was filed by the Respondent wife. The parties did not appear at the hearing in person, although the husband appeared by telephone.
The affidavit of the wife disputes the husband’s claims that he is now living in Australia, but otherwise largely repeats the submissions made by her lawyers.
The affidavit of the husband sets out that he wishes to remarry an Australian citizen and full-time resident with whom he has been in a relationship for four years. He says that he intends to reside in Australia permanently once his children do not require him to live in Israel for their welfare. His affidavit sets out that the assets accumulated during the marriage are located in Israel, that any Australian decree of divorce would not be recognised in Israel and that the respondent has no intention of visiting or migrating to Australia. He also sets out in his material that he is prepared to grant the Respondent wife a Gett, and even place one in escrow should it be required.
The husband in his affidavit says that on 28 March 2012, the Netanya Rabbinical Court ruled that the parties would have to agree upon an amount for fair “compensation” or the case be withdrawn. As a result of the inability to reach an agreement, the Applicant husband says he chose to withdraw his case. The Applicant says that the Respondent had an opportunity to file an appeal against the Rabbinical Court accepting the withdrawal of the case, which was open for 30 days, and that she did not file such an appeal.
The Applicant husband does not say that he is presently a resident of Australia, but relies upon his citizenship as a basis for jurisdiction. The Family Law Act1975 provides for the Court to have jurisdiction to grant a divorce if, at the date on which the application is filed, either party to the marriage is an Australian citizen: see s.39(3)(a).
There is no dispute that the parties have been separated for more than 12 months. As a matter of law, there is no question that the Court has prima facie jurisdiction to grant a divorce in this case.
The real question arising in this case is whether the court should decline to exercise jurisdiction on the basis that the Australian jurisdiction is an inappropriate one in the circumstances of this case. The High Court in Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 has stated that the appropriate test in cases of this type is to determine whether Australia is a “clearly inappropriate forum” (see also Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538).
In this case there are no longer proceedings pending in the Israeli courts. Had the Respondent wife wished to pursue divorce proceedings or claims for ancillary relief in the Israeli courts, she has had adequate time to file such proceedings.
The Full Court of the Family Court of Australia in Navarro & Jurado [2010] FamCAFC 210 considered the application of the High Court authorities with respect to determining whether or not Australia is a clearly inappropriate forum. In that decision it was clear that a desire of a party to re-marry in Australia is a relevant factor that should be taken into account. Justice O’Ryan (at [137]) listed a number of factors which should properly be taken into account (noting that it was not an exhaustive list: see [137]).
In this case there is no doubt that the foreign court, that is, the Rabbinical Court in Israel has jurisdiction, as does the Federal Circuit Court of Australia. Whilst there was no specific evidence as to whether or not the judgment of the Rabbinical Court could be enforced in Australia there was no suggestion that if such a judgment issued it could not be enforced in Australia.
It is relevant that the proceedings in Israel have finished, and on the evidence before me were frustrated by the inability of the parties to agree upon an amount to be paid to the wife and the refusal of the Rabbinical Court to adjudicate upon the question. Consequently the husband abandoned the proceedings, and the wife has not continued to pursue those proceedings.
Costs have been incurred by the parties in the Israeli Courts and moderate costs in the Australian Courts.
The wife appears to have no connection with Australia at all. The married life of the parties was in Israel, their property is in Israel and their children are in Israel. The only real connection with Australia is that the husband is an Australian citizen and intends to return here to marry and live in Australia in the future.
There is no question about the husband’s capacity to participate in the proceedings that were on foot in Israel. The wife would have far less capacity to participate in the proceedings in Australia, although to the extent that the proceedings relate to a divorce there is little difficulty in the wife participating by way of telephone or video link and providing written submissions (and she has in fact provided written submissions in this case). However, the Australian order is not likely to be recognised in Israel.
It appears that on a practical level the husband was simply unable to obtain a divorce in Israel unless he met the wife’s demands, and was unable to obtain a ruling from the Court as to the appropriate amount of compensation to enable the divorce to be finalised.
The evidence as to the operation of the Rabbinical Court in Israel is somewhat different to the law in Australia with respect to the Rabbinical Courts that operate within this country. In Gwiazda v Ber (Unreported, No. 10631 of 1982 per Emery J, 23rd February 1983), the Family Court concluded that it was not only appropriate to proceed and determine the matrimonial proceedings on a civil basis but also to require the wife in that case to appear before the appropriate Rabbinical Tribunal when called upon to do so and to do all acts and things necessary to give validity and operation to any directions, decrees or orders of that Tribunal. Importantly, the Family Court of Australia concluded that it was appropriate to order the wife to accept into her hand a Gett at the request of the husband or the Tribunal. The Family Court would not have inhibited the wife from making any application, request or submission to the Rabbinical Tribunal or take any rights from her which she would otherwise have had for relief from that Tribunal, save for the right to refuse to appear before the Tribunal and the right to refuse to accept into her hand a Gett if the same were granted by the Tribunal (see p.15). It should be noted that in that case the property and maintenance rights of the parties had been determined by the Court and the only issue that remained was whether or not a religious divorce should be effected.
In Brett v Brett [1969] 1 All ER 1007 the English Courts approached the matter on a slightly different basis, adjusting the amount of money that the husband would have to pay the wife for property settlement in the event that he did not grant her a Gett to allow her to be divorced in accordance with her religion.
In this case the husband has openly stated that he is prepared to grant the wife a Gett and indeed even place one in escrow if required. The wife’s opposition does not flow from the concern that she would not receive a Rabbinical divorce because of a lack of cooperation by the husband to effect a religious divorce. On the material before me there is no real issue remaining between the parties relating to children or property settlement or maintenance. Rather the issue is whether or not the Applicant ought to pay compensation to the Respondent for a divorce, and whether that compensation should be more than a token amount (on the evidence it was said to be commonly 2 Shekels). It also appears clear that the wife is not seeking to litigate that issue in Israel (or indeed may not even have the capacity to obtain a judgment forcing the husband to provide her with compensation: the evidence on this is lacking).
There will not be identical proceedings on foot in Israel and Australia as the Israeli proceedings have concluded.
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).
It appears to me that in this case the parties have already treated the divorce as a separate issue from the balance of the matrimonial issues in the way they have conducted themselves.
I note that the divorce, if granted in Australia, would not be recognised in Israel and further that the husband has not sought orders in the nature of those granted in Gwiazda & Ber. Whilst the husband is in the unsatisfactory position that he would be treated as having been divorced in Australia but not divorced in Israel, the fact that he is willing to provide a Gett to the wife at any point if she is prepared to accept it means that the wife is not placed in a position of disadvantage, at least with respect to the capacity to obtain a divorce.
This is not a case where the husband has commenced proceedings in Australia in order to be the first in time to a court, to thereby impinge upon the wife’s rights. Rather, this is a case where it appears (on the material placed before me) that the husband is unable to obtain a divorce in Israel without the cooperation of the wife, which has not been forthcoming (save on conditions that he does not accept, and which he has not been able to obtain a ruling upon by the Courts in Israel).
The application in this Court does not relate to property or children, nor spousal maintenance or child support. The respondent has not applied for ancillary relief.
The applicant is an Australian citizen and, on the only evidence before the Court, intends to return to Australia, desiring to marry another Australian citizen. The courts of Israel gave the applicant leave to withdraw his divorce proceedings, and the wife has not sought from the Israeli courts an anti-suit injunction, nor pursued matrimonial proceedings in Israel. The Wife has not sought the opportunity to pursue divorce proceedings in Israel. The applicant, as an Australian citizen, is entitled to access to the Australian courts. The applicant has, on the evidence, a real connection to Australia, namely citizenship and an intent to marry and live in Australia.
I am not persuaded that Australia is a clearly inappropriate forum in the unusual circumstances of this case.
In this case I find that the parties have been separated for more than 12 months and that adequate arrangements are in place for the children (whilst some issues were raised around the care arrangements for the children it is clear that the parties are attending to their needs and no proceedings are currently pending).
In the circumstances, I therefore grant a divorce order, which will become final in one month.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date Amended Reasons sent to parties: 2 December 2013
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