BLIGH & JAMES - [2018] FamCA 187

FAMILY COURT OF AUSTRALIA

BLIGH & JAMES

[2018] FamCA 187

FAMILY LAW – JURISDICTION – Where the respondent seeks that the property settlement proceedings be stayed on the grounds that New Zealand is the more appropriate forum – Where the parties reside in Australia – Where the parties are the trustees of a Trust which owns property in New Zealand – Where the law that governs the Trust is the law of New Zealand – Where New Zealand is the more appropriate forum to determine the property proceedings.

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Where New Zealand is found to be the more appropriate forum – Where the property proceedings should be stayed pursuant to the Trans‑Tasman Proceedings Act 2010 (Cth).

Convention on the Law Applicable to Trusts and on their Recognition (1985) art 6, 7, 8
Family Law Act 1975 (Cth) ss 80, 90AC
Trans‑Tasman Proceedings Act 2010 (Cth) ss 19, 19(2), 21
Trans-Tasman Proceedings Act 2010 (NZ) s 61(2)(c)
Trusts (Hague Convention) Act 1991 (Cth) sch 1

Kennon v Spry (2008) 238 CLR 366
Nevill & Nevill [2015] FamCA 876
Nevill & Nevill (2016) FLC 93-694

APPLICANT:

Ms Bligh

RESPONDENT:

Mr James

FILE NUMBER:

SYC

5661

2017

DATE DELIVERED:

28 March 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

13 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bridger

SOLICITOR FOR THE APPLICANT:

Warren & Warren

SENIOR COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

JUNIOR COUNSEL FOR THE RESPONDENT:

Dr Barnett

SOLICITOR FOR THE RESPONDENT:

Pearson Emerson Meyer Family Lawyers

Orders

That the proceedings for property settlement commenced by the Applicant be permanently stayed on the grounds that a New Zealand court is the more appropriate court to determine the dispute.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bligh & James has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5661 of 2017

Ms Bligh

Applicant

And

Mr James

Respondent

REASONS FOR JUDGMENT

Ms Bligh (“the applicant”) and Mr James (“the respondent”) lived in a de facto relationship between about February or April 2008 and September 2016.
They were both born in New Zealand and commenced their relationship in New Zealand. They are both citizens of New Zealand.
There is a child of their relationship who is five years old.
The only substantial asset of the parties is located in New Zealand.
The applicant and the respondent are the settlors, appointors and trustees of…

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 BLIGH & JAMES

Details

AGLC: BLIGH & JAMES [2018] FamCA 187
Case: [2018] FamCA 187
Decision Date: 28 March 2018

CaseChat Overview and Summary

In proceedings before Rees J of the Family Court of Australia, the applicant sought property settlement orders, while the respondent sought a stay of those proceedings. The parties resided in Australia, but they were also the trustees of a New Zealand-governed Trust that owned property located in New Zealand. The respondent contended that New Zealand was the more appropriate forum for the determination of the property proceedings.

The central legal issue before the court was whether the Australian proceedings should be stayed on the grounds that New Zealand constituted a more appropriate forum for the resolution of the dispute, particularly in light of the parties' roles as trustees of a New Zealand Trust holding New Zealand property and the governing law of that Trust being New Zealand law.

Rees J determined that New Zealand was indeed the more appropriate forum. The court applied the principles governing forum non conveniens, considering factors such as the location of the relevant property, the governing law of the Trust, and the overall connection of the dispute to New Zealand. Consequently, the court found that the proceedings should be stayed pursuant to the Trans-Tasman Proceedings Act 2010 (Cth).

The court ordered that the proceedings for property settlement commenced by the applicant be permanently stayed on the grounds that a New Zealand court is the more appropriate court to determine the dispute.

Orders

Orders of the court

That the proceedings for property settlement commenced by the Applicant be permanently stayed on the grounds that a New Zealand court is the more appropriate court to determine the dispute.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Full text does not contain this section.