BILLS & BILLS
[2015] FamCA 1193
•24 December 2015
FAMILY COURT OF AUSTRALIA
| BILLS & BILLS | [2015] FamCA 1193 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – where the parties are Australian citizens living and working in the United Kingdom – where the husband has issued parenting proceedings in the United Kingdom and financial proceedings in Australia – where the wife has subsequently issued divorce and financial proceedings in the United Kingdom – where the wife issues an Application in a Case for the Australian financial proceedings to be permanently stayed – “clearly inappropriate forum” test applied – final orders that the husband’s application for financial orders in Australia be permanently stayed. |
| Family Law Act 1975 (Cth) Family Law Act 1996 (UK) Foreign Judgments Act 1991 (Cth) |
| British South Africa Co v Companhia de Mozambique [1983] AC 602 Chen & Tan [2012] FamCA 225 Hamlin v Hamlin [1986] Fam 11 Henry v Henry (1996) 185 CLR 571 Kemeny & Kemeny [1998] FamCA 34 Khademollah and Khademollah [2000] FamCA 1045 Skinner & Alfonso-Skinner [2010] FamCA 329 Teo & Guan [2015] FamCAFC 94 Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 Yeo & Huy (No2) [2012] FamCA 541 |
| APPLICANT: | Ms Bills |
| RESPONDENT: | Mr Bills |
| FILE NUMBER: | MLC | 6606 | of | 2015 |
| DATE DELIVERED: | 24 December 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 1 December 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Glass |
| SOLICITOR FOR THE APPLICANT: | Nicholes Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Smith |
| SOLICITOR FOR THE RESPONDENT: | Armstrong Legal |
Orders
The application of the husband seeking orders under Part VIII of the Family Law Act 1975 (Cth) be permanently stayed.
Any submissions with respect to any application for costs of and incidental to either the wife’s application in a case filed 30 October 2015 or the husband’s response thereto filed 13 November 2015 be in writing and be forwarded by email to the Associate to Justice Macmillan and contemporaneously served upon the other party by 4.00 pm on 22 January 2016.
Any submissions in reply be in writing and be forwarded by email to the Associate to Justice Macmillan and contemporaneously served upon the other party by 4.00 pm on 5 February 2016.
In the event that neither party makes submissions in writing in support of an application for costs in accordance with paragraph 2 of these orders each party shall bear their own costs of and incidental to the application for a stay.
IT IS CERTIFIED THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bills & Bills has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6606 of 2015
| Ms Bills |
Applicant
And
| Mr Bills |
Respondent
REASONS FOR JUDGMENT
On 14 July 2015 the husband in this case filed an Initiating Application in the Family Court at Melbourne seeking orders that there be such alteration of the parties’ interests in property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) as this Court deems just and equitable and sought to be excused from particularising the orders he sought pending full financial disclosure. On 30 October 2015 the wife filed an Application in a Case seeking a permanent stay of the husband’s Initiating Application. The wife’s Application in a Case was listed before me in the Judicial Duty List on 1 December 2015.
Notwithstanding that it was the wife’s application listed for hearing that day counsel for the wife sought an adjournment of her application pending a decision being made by the Family Court in the United Kingdom in relation to the husband’s application seeking a permanent stay of the financial proceedings instituted by the wife in the United Kingdom. For convenience I heard submissions with respect to both the wife’s application for an adjournment and her application for a permanent stay of the husband’s application for property settlement. The matter being just one of the matters in a busy judicial duty list I reserved my judgment in order to give consideration to the evidence and the submissions made by counsel.
Background and Circumstances of the Wife’s Application for a Stay
The parties in this case were married in 2002 and separated in October 2013. There are three children of their relationship B born in 2005, C born in 2007 and D born in 2009. The wife has the primary care of all three children. The eldest child B is autistic, has special needs and requires ongoing support both by way of therapy and to meet his educational, social and physical needs.
The wife was born in South Africa and the husband was born in Australia. The parties met in the United Kingdom in March 2000 when the husband was working as a specialist health professional. The wife is a health professional and the parties met whilst they were both working at a hospital in London. The parties moved to Australia in September 2002 and purchased a home in Canberra in 2004. The parties remained in Australia as a family until September 2011 when the husband returned to the United Kingdom to take up a six-month locum position. The wife and the children stayed in Australia moving to the United Kingdom in July 2013, where they have remained.
Both the husband and the wife are Australian citizens. The wife in her affidavit filed 30 October 2015 deposes that it is her intention to remain in the United Kingdom and that she is currently seeking immigration advice regarding her ability to do so as she is currently residing in the United Kingdom as a dependent on the husband’s visa. The wife is currently working part time. The husband is similarly intending to continue living and working in the United Kingdom.
The wife’s case is that although she moved out of the marital bedroom in October 2013 she and the husband continued to live separately and apart under the one roof with the children separating physically in late 2015 when orders were made requiring the husband to vacate the rental property in which the family lived.
The husband’s Initiating Application seeking orders for property settlement was listed for a case assessment conference on 22 September 2015. That application was personally served upon the wife on 31 July 2015. At the case assessment conference all extant applications were adjourned to the Registrar’s directions list on 6 November 2015 and it was noted that the wife intended to apply for a stay of the husband’s application.
On 10 August 2015 the wife applied to the K County Court pursuant to the Family Law Act 1996 (UK) for a non-molestation and occupation order. A non-molestation order was made ex parte on that date which was returnable on 18 August 2015. Although on that return date the husband challenged the necessity for that order further orders were made that remain in force. On 17 August 2015 the wife made an application to the Family Court sitting at K County Court for a divorce and financial orders with respect to herself and the children of the marriage and property settlement.
On 17 August 2015, the return date of the wife’s Application for a Non-Molestation and Occupation order the husband issued an application for a Child Arrangements order which were served upon the wife at the hearing that day. An order was made that both matters be transferred to the Family Court sitting at West London.
On that same date the wife filed her application for divorce and financial orders. The wife in a statement made in support of her application for interim financial relief said that the first appointment in relation to her application for financial orders had been fixed for 10.00 am on 16 November 2015 and that as the notice advising as to that First Appointment date directed that the parties exchange Forms E setting out their respective financial positions.
On 29 September 2015 the husband issued an application in the Family Court in the United Kingdom seeking a stay of the divorce and financial proceedings issued in the United Kingdom by the wife. That application would appear to be based not upon that court not having jurisdiction but a dispute, as in this case, as to forum. Those proceedings were stayed pending a directions hearing on 24 November 2015. On that date an order was made by Deputy District Judge Butler transferring the matter to the High Court for the consideration of Baker J at 2.00 pm that day. Baker J adjourned the matter for hearing before Mostyn J at 10.30 am on 4 December 2015. The recitals to that order were as follows:
·Both parties indicate that they will be in a position to argue the issue of forum conveniens before the Family Court of Australia at the hearing listed in that court on 1 December 2015;
·The respondent’s position will nevertheless be that the Family Court of Australia should adjourn the hearing on 1 December 2015 and the respondent’s application for a stay of the Australian proceedings should be determined only after the English court has determined the applicant’s application to stay the English proceedings;
·This order is made on the basis that the hearing on 1 December 2015 in the Family Court of Australia will determine the issue of forum.
The wife also made an undertaking to the Court on that day that she would issue, file and serve her draft application for a “Hemain” injunction by 4.00 pm on 26 November 2015. A copy of that application was annexed to the affidavit of the wife’s solicitor Rebecca Dahl. A “Hemain” injunction is an injunction to prevent a party pursuing litigation in a foreign jurisdiction.
In that application the wife refers to the fact that on 20 October 2015 she was forced to file an application for Maintenance Pending Suit and legal services funding. Albeit that the husband through his solicitors in the United Kingdom asserts that all financial matters should be dealt with as part of the proceedings in this Court, that application was resolved and the hearing vacated.
Although the husband has instituted proceedings for property settlement in this Court and sought a stay of the wife’s divorce application and the financial proceedings in the United Kingdom, he deposes at paragraph 17 of his affidavit filed 13 November 2015 that the “..matters relating to our children are properly being heard in the United Kingdom, given that is where the children live.” There is no evidence to suggest that the husband has filed an application for divorce in this Court.
The issue in this case is not whether proceedings arising from and as a consequence of the breakdown of the parties’ marriage should be dealt with in Australia but whether there should, on the husband’s case, be property and maintenance proceedings in Australia and parenting proceedings in the United Kingdom (where the parties and the children live), or if the husband’s application for a permanent stay of the wife’s application for financial orders in the United Kingdom does not succeed, whether there should be parenting, property and maintenance proceedings in the United Kingdom and concurrent property proceedings in this Court.
Legal Principles
Section 39(4) of the Act provides that property proceedings between parties to a marriage may be instituted in this Court pursuant to the Act if either party to that marriage is an Australian citizen, is ordinarily resident in Australia or is present in Australia at the relevant date, being the date upon which the application is filed. There is in this case no question that the husband was entitled to issue his application for property settlement or that this Court has jurisdiction to hear that application. The question the Court must determine in this case is one of forum not jurisdiction.
As stated by the High Court in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 (‘Voth’), a party who has properly instituted proceedings in a court of competent jurisdiction in Australia has a prima facie right to have those proceedings determined by that Australian court. The test that governs whether the court should grant or refuse an application for a stay of those proceedings is the “clearly inappropriate forum” test. The High Court said further in Voth that the mere fact that a court in some other country would be a more appropriate or convenient forum for the particular proceeding does not necessarily mean that the Australian court is a “clearly inappropriate forum”. The High Court said at [36] as follows:
The “clearly inappropriate forum” test is similar and, for that reason, is likely to yield the same result as the "more appropriate forum" test in the majority of cases. The difference between the two tests will be of critical significance only in those cases - probably rare - in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one. But the question which the former test presents is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums. That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum. The important point is that, in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the court may more readily conclude that it is not a clearly inappropriate forum.
In Henry v Henry (1996) 185 CLR 571 (‘Henry’), the High Court held that the “clearly inappropriate forum” test in Voth is the test the court should apply in proceedings in this Court for a stay of proceedings. The High Court in Henry identified the following principles:
(a)the party seeking a stay of Australian proceedings bears the onus of establishing that the Australian jurisdiction is “clearly inappropriate”; and
(b)the determination of whether Australia is a “clearly inappropriate forum” is based upon the general circumstances of the case, taking into account the true nature and full extent of the issues involved.
Reaffirming the test in Voth the majority in Henry said at page 587 as follows:
..a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, “ the discussion by Lord Goff in Spiliada of relevant ‘connecting factors’ and a ‘legitimate personal or juridical advantage’ provides valuable assistance”. In this last regard, Lord Goff or Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being “where the case may be tried ‘suitably for the interests of all the parties and for the ends of justice’”. (citations omitted)
The majority went on to say at pages 589 - 590:
There is one other matter that should be observed with respect to the decision in Gilmore, a case involving proceedings both in Australia and in New Zealand. In their separate judgments, Fogarty J, with whom Finn J agreed, and Lindenmayer J criticised the “clearly inappropriate forum test” in its application to proceedings in the Family Court. Fogarty J expressed the view that the test might “lead to inconvenience, in that it will create the risk of parallel proceedings”. Lindenmayer J stated his belief that the clearly inappropriate forum test was “bound to lead to increased forum shopping and jurisdictional conflict” between the Courts of Australia and New Zealand …
There appears to be an assumption in Gilmore that the duplication of proceedings in another country is not, of itself, relevant to the question of whether Australia is a clearly inappropriate forum …
Foreign proceedings usually fall for consideration in a context in which they involve the same or related factual issues as those involved in the local proceedings, but not the same legal issue and, perhaps, not the same parties. Even in cases of that kind it may sometimes be appropriate to grant a temporary stay of the local proceedings to allow for the factual issues to be determined in the other jurisdiction. There are more compelling considerations in favour of a stay of the local proceedings if, as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings and the proceedings are between the same parties and with respect to the same issue or controversy.
Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia. In Union Steamship Co of New Zealand Ltd v The “Caradale”, Dixon J observed of that latter situation that “[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration”. From the parties’ point of view, there is no less – perhaps, considerably more – inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.
It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious in the sense of “productive of serious and unjustified trouble and harassment”. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.
And as Murphy J observed in Yeo & Huy (No 2) [2012] FamCA 541 (‘Yeo’) at [33]-[34]:
… what emerges is that there is nothing as a matter of principle that prevents the bifurcation of proceedings emanating from a single controversy with part of the proceedings being heard in one country and another part in another country, assuming that doing so causes no offence to international comity.
Frequently, though, there can, as a matter of discretion, be seen to be strong reasons for preventing the bifurcation of proceedings in such a manner. In the exercise of the discretion, an important consideration is the nature of each of those differing aspects of the same controversy and the remedies sought and available in respect of each. The evidence needed in support of those differing aspects of the controversy, and the availability of mutual recognition of each Court’s orders in each respect are, as the High Court has made clear, relevant matters.
In Skinner & Alfonso-Skinner [2010] FamCA 329 (‘Skinnner’), Murphy J at [69] summarised what he described as the “non-exhaustive list of matters relevant to the application of the “clearly inappropriate forum test” identified in Henry as follows:
(a)whether each court will recognise the other’s orders and decrees;
(b)which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy;
(c)the order in which the proceedings were instituted;
(d)the stage at which the proceedings have each reached;
(e)the costs that have been incurred by the parties;
(f)the connection with the parties and their marriage with each of the jurisdictions;
(g)the issues on which relief might depend in each of the jurisdictions; and
(h)the resources of the parties and their understanding of language enabling the parties to participate in the respective proceedings on an equal footing.
Murphy J emphasizing, as the majority in Henry had done, the non-exhaustive nature of the relevant matters said that “…the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.”
Discussion
Counsel for the wife submitted in support of his application that the matter should be adjourned to await the outcome of the husband’s application for a stay of the wife’s application in the United Kingdom for a divorce and financial orders, the practical reality being that if the husband were to succeed there would be no basis for the wife’s application in this Court. He further submitted that the husband having made the forensic decision, being on notice that the wife intended to apply for a stay of his application in this Court, that he should in the interests of justice be held to his election.
Finally counsel for the wife submitted that there is significant prejudice to the wife in circumstances where the husband has sought a stay of all the proceedings for financial relief instituted by the wife in the United Kingdom until the parameters of the relief available to her in the United Kingdom are established. He submitted that this remains the positon albeit that the husband agreed in the face of the wife’s application for financial support pending suit, vacating the hearing of her application on the basis of that agreement.
Counsel for the husband opposed the adjournment of the wife’s application. He submitted that the wife’s application for divorce and financial relief being issued after the husband commenced proceedings in this Court is both vexatious and oppressive and that to adjourn her application for a stay of the husband’s application in this Court would in those circumstances be an abuse of process. He submitted that it is the wife who has made the forensic decision to issue an application seeking to stay the husband’s application in this Court and that she should be held to that election.
Counsel for the husband submitted that there was no prejudice to the wife even if the husband’s application for a stay of her application for a divorce and financial orders were to succeed as it would still be open to the wife to issue an application for urgent maintenance in this Court.
Although I do not agree that an adjournment of the wife’s application for a stay of the proceedings in this Court would be an abuse of process I also do not consider in circumstances where it is clear that the High Court in the United Kingdom has already listed the husband’s application for a stay of her application for a divorce and financial relief, that the prejudice to the wife in the event that this Court hears and determines her application prior to the hearing of the husband’s application is such that this matter should be adjourned pending the outcome of that application.
Although true it might be that there would be little purpose to the wife’s application in this Court if the High Court were to accede to the husband’s application for a stay it may similarly be the case that if this Court were to accede to the wife’s application there may be little purpose to the husband’s application for a stay of her proceedings in the United Kingdom.
To avoid the necessity of a further hearing date I had counsel address me in relation to both the adjournment and the wife’s application for a stay. Having heard their submissions in relation to both matters, and in circumstances where there are advantages and disadvantages of adopting either course, I am not satisfied in all of the circumstances of this case that I should adjourn the wife’s application for a stay until the husband’s application for a stay of the financial proceedings in the United Kingdom has been heard and determined.
Stay Application
Although as the High Court said in Voth, considerations as to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of this forum, as Murphy J observed in Yeo:
...the process is not to weigh the factors which point to the making of a stay against the factors which point away from such action; rather, the objective is to consider whether there are sufficient factors to indicate that the forum is clearly inappropriate, in which case the proceedings in that forum should be stayed.
The burden in this case rests on the wife, who is seeking a permanent stay of the husband’s application for property settlement to establish that this Court is a clearly inappropriate forum, not that the courts in the United Kingdom in which she has instituted proceedings would be a more appropriate venue. Both counsel in this case made their submissions by reference to Murphy J’s summary of relevant matters in Skinner.
The parties in this case have a clear connection to both Australia and the United Kingdom albeit in recent years their connection to the United Kingdom is arguably closer. Significantly they both live in the United Kingdom and have done so for some years and both parties have indicated their intention to remain in the United Kingdom albeit the wife may need to obtain a new visa in order to do so.
The husband’s affidavit filed 13 November 2015 included a schedule of the parties’ combined assets and liabilities both in Australia and the United Kingdom. It is clear from that schedule and not the subject of dispute that the most significant asset the parties own is the property they purchased in Canberra. The husband did not specify the orders he seeks by way of property settlement nor did either he or the wife give any evidence as to particular property they wished to retain, in particular neither deposed to wanting to retain the Canberra property. The husband also has greater superannuation entitlements in a self-managed fund in Australia.
Counsel for the husband submitted that applying the “Mozambique Rule” the court determining this matter in the United Kingdom would not be able to make any orders affecting the title to the Canberra property. He further submitted that as the Foreign Judgments Act 1991 (Cth) does not provide for the enforcement of a judgment in personam if it relates to a matrimonial cause, any orders made in the United Kingdom would not be enforceable in Australia.
The wife did not adduce any evidence as to what the position would be with respect to either the making of orders affecting the title to the property in the Australian Capital Territory or the enforcement of orders made by this Court in the United Kingdom, where the parties both reside. However counsel for the wife submitted that this was not fatal to her application, referring me to the decision of the Full Court in Khademollah and Khademollah [2000] FamCA 1045 (‘Khademollah”) where the Full Court said at [157], that “..absent any expert evidence, as a general rule there is a presumption that the law of a foreign country is the same as that of the forum”.
The Mozambique Rule derives two propositions from British South Africa Co v Companhia de Mozambique [1983] AC 602, summarised in Nygh, P, Conflict of Laws in Australia (2010, 8th ed, Lexis Nexis Butterworths):
·a local court will not exercise jurisdiction in respect of the title to, or possession of, land situated beyond the court’s territorial jurisdiction on the basis that only the court of the place where the land is situated can effectively enforce an order for possession of, or title to, the land; and
·no action can lie in respect of trespass or other actions based on the plaintiff’s title to land situated beyond the court’s territorial jurisdiction.
The Mozambique Rule has previously been held not to apply to proceedings for property adjustments by authorities in this Court. In Chen & Tan [2012] FamCA 225, Kent J set out the two propositions in the Mozambique rule and added at [17]:
...a Court exercising jurisdiction under the Act in family law exercises jurisdiction in personam and not in rem. There is therefore no offence to the Mozambique Rule for the exercise of jurisdiction with respect to foreign land. Thus, because proceedings for the adjustment of property rights pursuant to s 79 of the Act are in personam, an Order for one party to transfer title to real property situated overseas is not an exercise of jurisdiction in respect of title to, or possession of, foreign land, but an Order in personam against that party. Likewise, Orders for enforcement, including in relation to property located overseas, are made in personam.
The Full Court in Teo & Guan [2015] FamCAFC 94 at [134] quoted with approval a passage from an article by Dr Anthony Dickey QC, ‘Orders in respect of foreign property under section 79’ (1993) 67 Australian Law Journal at [538]:
It now seems clear, however, that this jurisdictional limitation does not apply to proceedings under s 79, as the rule in the Mocambique case concerns proceedings only to determine existing title to, or existing right to possession of, foreign land. Proceedings under s 79 are of a different character. They concern rights arising from a matrimonial relationship, even though these rights may ultimately involve the disposition of foreign land...
(emphasis in original)
Assuming, in accordance with the general rule referred to in Khademollah, that the law in the United Kingdom is the same as Australian law, the Mozambique Rule would not preclude the enforcement of property orders made by either this Court or a court in the United Kingdom although on balance it would arguably be easier to enforce any orders made in the United Kingdom in circumstances where the parties bound by those orders are resident in the United Kingdom.
Counsel for the husband submitted that in so far as the application filed by the husband in this Court would have the effect of bifurcating the proceedings there is nothing “…inherently offensive” in the notion that parties might be required to conduct parenting matters in one country and financial disputes in another (Kemeny & Kemeny [1998] FamCA 34 (‘Kemeny’) at [5.3.7]). However that is not necessarily the situation in this case. As previously discussed, in the event that the Court accepted the husband’s case and did not accede to the wife’s application there would at the very least be two sets of proceedings, if not parallel proceedings, unless the High Court were to determine that the wife’s application for financial relief in the United Kingdom should be stayed. Although it is correct as submitted on behalf of the husband that there are no interim maintenance proceedings on foot the wife’s application for financial relief does include applications with respect to maintenance for the wife and payments for the children.
Counsel for the wife submitted that not only can Kemeny be distinguished on the facts from this case, but that the way in which the husband puts his case ignores the fact that there is in this case one controversy and it is the marital relationship which lies at the heart of that controversy. He referred me to the observations of the plurality in Henry at pages 591 to 592:
If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects.. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.
Although the appellant first brought proceeding against the respondent in Monaco for judicial separation and, only later, commenced proceedings for divorce, both proceedings were, in essence, proceedings with respect to their marital relationship. Clearly, it was the same marital relationship which was the subject of the divorce proceedings brought in Australia by the respondent. And although it may not be so clear, the property proceedings instituted by the respondent in the Family Court are but an aspect of his controversy with the appellant as to their marital relationship. It may have been otherwise were they no longer married, but so long as their marriage subsists, their dispute with respect to property is a dispute as to the rights and obligations arising out of their marital relationship and those which should attend its dissolution. As such, it is properly to be seen as part of the controversy with respect to that relationship.
The divorce application and the parenting and financial disputes in this case are in my view different aspects of the one controversy which arises out of the matrimonial relationship. In my view there is no question that the courts in the United Kingdom can provide more effectively for a complete resolution of the matters involved in that controversy. The fact that the husband issued his proceedings for property settlement first in time, particularly in circumstances where he agrees that the parenting proceedings should properly be heard and determined in the United Kingdom, is in my view no bar in this case to the granting of a stay order.
There is in my view significant overlap between the issues this Court is required to consider in determining the property proceedings whether or not the husband’s application seeking a stay of the wife’s application in the United Kingdom succeeds, and the balance of the proceedings which it is agreed are to be conducted in the United Kingdom and the evidence based upon which those issues will be determined. That overlap is likely to be even more significant if the husband’s application for a stay of the proceedings in the United Kingdom does not succeed.
There is in my view, given the particular facts of this case, also significant overlap with respect to the evidence in relation to the different aspects of the controversy in this case. In determining what orders adjusting the parties’ interests in property it should make, if any, this Court must take into account the matters referred to in s 75(2) of the Act which for the purposes of this case will almost certainly require a consideration of the parties’ circumstances in the United Kingdom. In this case that will almost certainly involve evidence in relation to the income and income earning capacity of the parties, their needs and the children’s needs, in particular the needs of B and how they impact upon the wife’s capacity to work. This would be likely to involve evidence specific to the circumstances of the parties and the children in the United Kingdom and it is evidence which in my view is evidence which may not be suitable for a video link.
Of even greater significance is the likely overlap between the matters this Court would need to consider and the balance of the proceedings which would remain on foot absent an order staying the wife’s application for financial orders in the United Kingdom. In those circumstances the wife could not only proceed with her application for financial orders in the United Kingdom but particularly with respect to spousal maintenance and child support that would be the logical forum in which to do so. In my view this Court would also be at a significant disadvantage in circumstances where both these parties live and work in the United Kingdom in making any assessment of the wife’s needs for spousal maintenance and child support and assessing both their current or future income earning capacity and their needs generally.
The husband’s evidence is that his United Kingdom solicitor’s charge out rate is £315 an hour plus VAT, the equivalent of AUD$697 per hour, whereas his Australian solicitors charge out rate is AUD$475 per hour plus GST. The wife deposes that at the date of swearing her affidavit her legal fees in the United Kingdom were the equivalent of approximately $60,870 and that her application for interim financial support would cost her a further sum of approximately the equivalent of AUD$10,600. Her legal fees in Australia at that time were approximately AUD$5,000. Although the husband submits that the cost of the proceedings in Australia will be less than the cost of the proceedings in the United Kingdom it is not possible on the basis of the evidence before me as to charge out rates and without any evidence as to exactly what is involved in the proceedings in the United Kingdom to conclude that that is necessarily the case. It is also arguably the case that the cost of the instructing solicitors and counsel in both jurisdictions and the overlap between the issues in both those jurisdictions is likely to add to the total costs incurred.
The husband in his affidavit filed 13 November 2015 deposes at [20] of that affidavit as follows:
Our family’s finances are not complicated and I am confident that were [the wife] to engage in these proceedings, that we would be able to reach an overall settlement either before, at or shortly after a Conciliation Conference. I have sensible and realistic expectations as to an overall outcome of what a Court might order were the matter to proceed to a Final Hearing.
That invites the obvious observation that if it is simple of resolution in Australia it is equally simple of resolution in the United Kingdom. It also highlights what is in my view the inappropriateness of this forum. If the husband’s application for a stay of the financial proceedings in the United Kingdom were to be successful, putting the wife in the position of having to apply to this Court for maintenance and if, as the husband anticipates, the property proceedings are easily resolved, this Court could be left hearing and determining maintenance proceedings in circumstances where both the party and the children for whom maintenance is sought and the party from whom it is sought live in the United Kingdom. It would also suggest that the cost of property proceedings either here or in the United Kingdom is not likely to be a significant factor in this case.
Although the parties in this case do not have any language difficulties conducting the proceedings in Australia there are in my view other issues which would make it difficult for the husband and the wife to participate on an equal footing. Although it was the husband’s case that it would not be necessary for either he or the wife to travel to Australia for the hearing on the basis that they could each give their evidence by video link, a submission I do not necessarily agree with, he also did not dispute the wife’s evidence as to the added cost of both flights and accommodation and the difficulty she might have travelling to Australia with the children for the purposes of the proceedings in Australia particularly in Melbourne where she has no friends or support network. The husband somewhat surprisingly in my view, based upon the way he presented his case, offered no explanation as to why he had commenced proceedings in Melbourne rather than Canberra where the parties previously lived and owned property.
In my view it is not simply a question of the wife giving evidence. She would need to instruct her solicitors and counsel by video link and if I were to accept the husband’s submission might never have the chance to confer with her legal representatives in person. Even if the wife were to instruct her solicitors either by telephone or video link there is a significant time difference between Australia and the United Kingdom which would add another layer of complexity to the difficulty she might experience giving instructions, obtaining advice and giving evidence. I am satisfied that the husband on the other hand would have the financial means to travel to Australia to instruct his solicitors and/or counsel and for the proceedings themselves, assuming a hearing is necessary, if he chooses to do so, nor would his responsibility for the children be likely to prevent or make it difficult for him to do so as it would in the wife’s case.
Although there have been a number of hearings with respect to different aspects of the case, the proceedings both in this Court and the courts in the United Kingdom are still in their early stages.
In all of the circumstances and having considered all these matters I am satisfied that notwithstanding that the wife instituted her application for a divorce and financial relief after the husband filed his application for property settlement in Australia that Australia is a clearly inappropriate forum. In my view the proceedings in Australia are both vexatious and oppressive within the sense of those words discussed by the majority in Henry and in the interests of justice there should be a permanent stay of the husband’s Initiating Application. On that basis I propose to accede to the wife’s application.
I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 24 December 2015.
Associate:
Date: 24 December 2015
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