Chen & Tan
[2012] FamCA 225
•12 April 2012
FAMILY COURT OF AUSTRALIA
| CHEN & TAN | [2012] FamCA 225 |
| FAMILY LAW – PROPERTY – Property Settlement – Where the parties' relationship subsisted entirely in Taiwan – Where substantial real property and business interests of the Husband are in Australia – Where the Husband objects to litigating the property settlement in Australia on the grounds of forum non conveniens – Whether Husband discharges his onus to establish a clear case for a stay of Australian proceedings. |
| Corporations Act 2001(Cth) Civil Code (Taiwan) Code of Civil Procedure (Taiwan) Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Court Regulations 1984 (Cth) Family Court Rules 2004 (Cth) Foreign Judgments Act 1991 (Cth) |
| British South Africa Co v Companhia de Mozambique [1893] AC 602 Connelly v RTZ Corp Plc [1998] AC 854 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Gould v Gould; Swire Investments Limited (1993) FLC 92-434 Henry v Henry (1996) 185 CLR 571 Kemeny v Kemeny (1998) FLC 92-806 Lubbe v Cape Plc [2000] 4 All ER 268 Navarro v Jurado (2010) 44 Fam LR 310 Oceanic Sun Line Shipping Co Inc v Fay (1998) 165 CLR 197 Pagliotti v Hartner (2009) FLC 93-39 Puttick v Tenon Ltd (2008) 238 CLR 265 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
Nygh, P, Conflict of Laws in Australia (2010, 8th ed, Lexis Nexis Butterworths)
| APPLICANT: | Ms Chen |
| RESPONDENT: | Mr Tan |
| FILE NUMBER: | BRC | 7088 | of | 2011 |
| DATE DELIVERED: | 12 April 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 30 January 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms McLennan |
| SOLICITOR FOR THE APPLICANT: | Dante Chen Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Kirk SC |
| SOLICITOR FOR THE RESPONDENT: | Dixie Ann Middleton & Associates |
Orders
The Husband’s application for a permanent stay of these proceedings in Australia be dismissed.
In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to these proceedings:
(a) Each party file within a further 14 days written submissions in respect of that issue; and
(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.
In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via e-mail to the Associate to Justice Kent.
The matter otherwise be adjourned to the Registry for further mention.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chen & Tan 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 BRISBANE |
FILE NUMBER: BRC 7088 of 2011
| Ms Chen |
Applicant
And
| Mr Tan |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 August 2011 Ms Chen (“the Wife”) filed an Initiating Application in this Court naming Mr Tan (“the Husband”) as respondent.
By that application the Wife seeks, inter alia, a final order, “…that after an assessment of the matrimonial property of the parties, such property be divided between the Applicant and the Respondent in the proportion of 35% and 65% respectively pursuant to Part VIII or Part VIIIAB or both of them of the Family Law Act 1975 (Cth).” The Wife also seeks, “…any and all necessary declarations pursuant to Part VIIIAB.”
There is no concept of “matrimonial property” in the Family Law Act 1975 (Cth) (“the Act”) but this descriptor is sometimes used by practitioners, wrongly, to refer to any property owned by either party or by them jointly, and it is reasonable to infer that it is to that property which the application is intended to be directed. I note that the Husband is apparently in no doubt about that intention.
Part VIII of the Act is the source of power for the Court to make Orders in respect of, relevantly, spousal maintenance; declarations of interests in property and alteration of property interests. Part VIIIAB of the Act concerns such financial matters relating to de facto relationships but on the evidence before the Court, it being acknowledged by both parties that they were married to each other, there is no apparent scope for that Part to apply in this case.
By her application, the Wife also seeks interim Orders for the Husband to pay her AUD$200,000.00, “…or such other amount as determined by the Court by way of an interim distribution,” from the Husband’s bank account or from the sale of the property owned by the Husband at P Road, P (“the P property”), in Queensland. It is not readily apparent from the form of this interim order sought whether the Wife relies solely upon the Court’s power to make an interim property Order or also upon the power to order maintenance or the power to order costs. The wife also seeks interim injunctions.
In any event, on this hearing the sole matter for determination is the Husband’s application, on forum non conveniens grounds, for a permanent stay of the Wife’s application, the Husband’s application having been set down as a discrete application for determination.
By his Response to the Initiating Application filed on 1 November 2011, the Husband sought an Order, “…that pursuant to s 45 of the Family Law Act the Applicant’s application be permanently stayed.”
At the outset of the hearing before me on 31 January 2012, I sought and obtained confirmation from Mr Kirk of Senior Counsel who appeared for the Husband, that s 45 of the Act has no application or relevance to the Husband’s stay application. This is because s 45 only applies where there are multiple proceedings under the Act in different Courts having jurisdiction under the Act. This is not the position in this case. Likewise, I sought and obtained confirmation from Ms McLennan of Counsel who appeared for the Wife that no prejudice was occasioned to the Wife by the misconceived form of the Order sought by the Husband in his Response. The Wife’s evidence as framed, and Ms McLennan’s written and oral submissions as addressed, carry the understanding that the Husband’s application was to be taken as an application for a permanent stay on the basis that Australia is a clearly inappropriate forum for the litigation of the dispute.
The essence of the Husband’s case is that as both parties are Taiwanese nationals (the Husband having dual Taiwanese-Australian citizenship) who have conducted the entirety of their relationship in Taiwan, these proceedings should be permanently stayed and any issues arising should be determined by the Courts in Taiwan. The essence of the Wife’s case in answer to the current application is that the vast majority of the Husband’s considerable financial wealth resides in Australia and that there are substantial connecting factors with Australia.
The Husband’s application for a permanent stay of the Wife’s application is in the context that after receiving the Wife’s application, the Husband instituted proceedings in the “Banchion District Court Taiwan”[1] or the “Family Court Taiwan Banqiao District Court”.[2] For convenience, the Court in Taiwan in which the Husband has instituted his proceedings on 8 September 2011 will be referred to as “the Taiwan Court” and those proceedings as the “Taiwan proceedings”.
[1] See p 2 of Annexure A to the Husband’s affidavit filed 1 November 2011.
[2] See p 32 of Annexure B to the Husband’s affidavit filed 1 November 2011.
The relief sought by the Husband in the Taiwan Court will be further discussed but suffice to note here, by reference to that discussion, that in the Taiwan proceedings the Husband seeks:
(a) “approval” of a divorce;
(b) appointment of the Husband to exercise, in relation to the parties’ child T Chen Tan (born in October 2008) the equivalent, or something akin to, what would be regarded here as parental responsibility within the meaning of the Act;
(c) a declaration that the Wife’s right to request a distribution of property from the Husband is extinguished beyond the value of 1,014,513 New Taiwanese Dollars (“NTD”)[3]
(d) that the Wife pay the Husband’s costs of the proceedings.
[3] Applying the conversion rate of NTD$30 to AUD$1 nominated in the Taiwanese proceedings, this equates to AUD$33,817.10. This conversion rate will be used in the remainder of these reasons for judgment.
The parties met in Taiwan in approximately January 2008 and commenced a relationship which resulted in the Wife becoming pregnant in that same year. The parties were married in Taiwan in May 2008, and their child, T Chen Tan, was born in October 2008. In December 2009, the Wife allegedly discovered that the Husband was having an affair but nonetheless continued with the relationship until her departure from the former matrimonial home in Taiwan at some point in July 2011 (the parties contest the exact date). Thus it would seem that the entirety of the parties’ relationship was conducted in Taiwan. However, the Husband is an Australian citizen and, as will shortly be discussed, the vast majority of his considerable property consists of real property and business interests situated in Australia. There are also further links between this dispute and Australia which will be explored in further detail below.
Jurisdiction of this Court
Under s 39(1) of the Act, the Family Court has jurisdiction in matrimonial causes instituted under the Act. The definition of “matrimonial cause” in s 4 of the Act is defined as relevantly including maintenance proceedings and proceedings with respect to maintenance agreements (paragraphs (c), (caa), (d), (ea)), and proceedings with respect to the property of the parties or either of them ((ca), (cb)).
Section 39(4) (with respect to matrimonial causes) provides that proceedings of those kinds may be instituted under the Act if, whether parties to a marriage or in any other case, a party to the marriage or to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia at the relevant date as defined in s 39(4A) of the Act.
Plainly enough, given the Husband’s Australian citizenship, this Court therefore has jurisdiction in respect of the Wife’s substantive application.
Relevant to the Husband’s ownership of property in Taiwan, part of the common law often applied to deny jurisdiction where proceedings involve foreign land and questions relating to the title of foreign land, is a rule which is known as the Mozambique Rule, derived from the decision of the House of Lords in British South Africa Co v Companhia de Mozambique,[4] which operates for two propositions which may be expressed as follows:
a)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
b)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.[5]
[4] [1893] AC 602.
[5] Nygh, P, Conflict of Laws in Australia (2010, 8th ed, Lexis Nexis Butterworths) 64 – 71.
However, 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.
This may be qualified to the extent that, having regard to the principle that a party ought not be ordered to do something illegal in the place it is to be done, when exercising jurisdiction in personam, Courts ought be alive to avoiding the making of an Order in relation to any assets located in a foreign country that might operate in direct conflict with the laws of that country.[6]
[6] Michael Wilson and Partners Ltd v Robert Colin Nichols [2008] NSWSC 1230, [6]-[7] (Brereton J).
As authorities in family law make plain (such as Pagliotti v Hartner,[7] Cain v Cain,[8] Pastrikos v Pastrikos,[9] Hannema v Hannema,[10] Gilmore v Gilmore[11]), once a matter within the definition of “matrimonial cause” enlivens the jurisdiction of the Australian Court, it is Australian law which the Court applies, and it may adjust the property rights of the parties in property located overseas, regardless of any rights acquired or vested in the parties under foreign law.
[7] (2009) FLC 93-393 at 83,253.
[8] (1987) FLC 91-808.
[9] (1980) FLC 90-897.
[10] (1981) 7 Fam LR 542.
[11] (1993) FLC 92-353.
As a general rule, jurisdiction of a Court in personam depends upon the presence of the respondent in the jurisdiction. However, in the context of family law, it is important to note that s 31(2) of the Act provides:
Subject to such restrictions and conditions (if any) as are contained in s 111AA, the regulations or the standard Rules of Court, the jurisdiction of the Family Court may be exercised in relation to persons or things outside Australia and the Territories.
Thus, a Court exercising the jurisdiction conferred by the Act has extra-territorial jurisdiction over persons or things outside Australia. This extra-territorial jurisdiction exists not only in proceedings for property adjustment, but also in relation to ancillary relief. In Gould v Gould; Swire Investments Limited,[12] the Full Court of the Family Court, in upholding the setting aside of dispositions by the husband to companies incorporated overseas, which were not registered nor carried on business in Australia, pursuant to the former s 85 of the Act (now s 106B) held that that s 31(2) of the Act provided the Family Court with an extra-territorial jurisdiction both as regards “persons” and “things” in broad, general language. Further, that the words, “Subject to such restrictions and conditions…” in s 31(2) should not be read as empowering the Family Court Regulations 1984 (Cth) or the Family Court Rules 2004 (Cth) to exclude the jurisdiction otherwise given to the Court by statute.
[12] (1993) FLC 92-434; Nygh, P, Conflict of Laws in Australia (2010, 8th ed, Lexis Nexis Butterworths) 565.
It ought be plain enough that the extra-territorial jurisdiction conferred by s 31(2) does not override the conditions set out in s 39, outlined above, in which jurisdiction may be exercised. Moreover, it has been held that a Court should not exercise extra-territorial jurisdiction where any Order the Court might make would be clearly futile.[13]
[13] Tallack v Tallack [1927] P 211; Ding v Ding (1976) 1 Fam LR 11, 231; Woo v Woo (1976) FLC 90-107.
Applicable Law and Principles
Notwithstanding that the Australian family law courts might properly entertain a financial proceeding within its jurisdiction under the Act, the doctrine of forum non conveniens under the conflict of law rules in Australia may compel the Court to decline to exercise its jurisdiction, otherwise properly enlivened, having regard to the principles set down by the High Court in Oceanic Sun Line Special Shipping Co Inc v Fay[14] (“Oceanic”) and Voth v Manildra Flour Mills Pty Ltd[15] (“Voth”), which are considered below. In applying the forum non conveniens test, where there are proceedings on foot both in Australia and an overseas jurisdiction, the Australian Court may, subject to additional criteria being established, stay the Australian proceedings on the ground that the Australian Court is a clearly inappropriate forum or, conversely, enjoin the maintenance of the overseas proceedings.
[14] (1988) 165 CLR 197.
[15] (1990) 171 CLR 538.
In Henry v Henry[16] (“Henry”), the High Court (Dawson, Gaudron, McHugh and Gummow JJ, Brennan CJ dissenting in part) determined that where proceedings were on foot in the Family Court, notwithstanding that that Court might have jurisdiction with respect to the matter, applying the test of forum non conveniens might require those proceedings to be stayed on the basis that the Family Court was a clearly inappropriate forum for those proceedings and thus that the maintenance of the Australian proceedings would be vexatious or oppressive.[17] In CSR Ltd v Cigna Insurance Australia Ltd,[18] the majority of the High Court (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) identified the power to stay such proceedings as an aspect of the inherent or implied power of every court, “…to prevent its own processes being used to bring about injustice.”[19]
[16] (1996) 185 CLR 571.
[17] (1996) 185 CLR 571 at 586-587 (Dawson, Gaudron, McHugh and Gummow JJ).
[18] (1997) 189 CLR 345.
[19] Ibid at 391.
The forum non conveniens test emerges from the decisions of the High Court in Oceanic and Voth. In Voth, the High Court (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ, Toohey J dissenting in this respect) adopted the statement of principle espoused by Deane J in Oceanic that:
… it is possible to identify in summary form what I see as the modern content of the traditional principles governing the power of a court in this country to order that proceedings which have been regularly instituted within jurisdiction should be dismissed or stayed on inappropriate forum grounds. That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff. Otherwise, that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties.[20]
[20] (1988) 165 CLR 197 at 247-248.
The significance of the High Court's decisions in Oceanic and Voth, which were subsequently extended to apply in financial matters in family law cases in Henry, was that those decisions rejected the "more appropriate forum" test laid down by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd,[21] which involved a comparison of the propriety of the forums in which proceedings had been commenced, in favour of the "clearly inappropriate forum" test (forum non conveniens), which involved only a consideration of whether Australia was a clearly inappropriate forum.
[21] [1987] AC 460.
The Court must determine whether the Australian proceedings are "vexatious or oppressive" in the sense identified by the High Court in Voth before staying the Australian proceedings.[22] In this regard, Deane J stated in Oceanic, which was adopted by the majority of the High Court in Voth, that:
… once it is accepted that the adjectives ‘oppressive’ and ‘vexatious’ are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings rather than the conduct of the plaintiff in continuing them, the continuation of proceedings in a tribunal which is a clearly inappropriate forum would, in the absence of exceptional circumstances being established by the plaintiff …, be oppressive or vexatious to such a defendant if there is some available and appropriate tribunal in another country. Admittedly, that approach to the ‘vexatious’ and ‘oppressive’ test is less stringent and less rigid than would have been accepted in the nineteenth century. Under it, the applicable test pursuant to traditional principles can, in the ordinary sense, properly be seen as an ‘inappropriate forum’ test. It cannot, however, properly be seen as a ‘more appropriate forum’ test since the mere fact that a tribunal in some other country would be a more appropriate forum for the particular proceeding does not necessarily mean that the local court is a clearly inappropriate one.[23]
[22] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (Mason CJ, Deane, Dawson and Gaudron JJ).
[23] (1988) 165 CLR 197 at 248.
It is thus well-settled that the test to be applied in determining that the proceedings have been commenced in a “clearly inappropriate forum” derives from the principles established in Voth, as explained in the context of family law litigation in Henry.
The Voth test of “clearly inappropriate forum” has been discussed in subsequent High Court cases, including Henry; CSR Ltd v Cigna Insurance Australia Ltd;[24] and Regie Nationale des Usines Renault SA v Zhang.[25]
[24] (1997) 189 CLR 345.
[25] (2002) 210 CLR 491.
Notably, in relatively recent times in Puttick v TenonLtd,[26] the Respondent filed a notice of contention seeking that the High Court clarify or modify the test in Voth to abandon the language of vexation in the sense of, “…seriously and unfairly burdensome, prejudicial or damaging…” and oppression in the sense of, “…productive of serious and unjustified trouble and harassment…” It was contended that the High Court should restate the test for a stay of proceedings by holding that a stay should be granted when the local forum is an “inappropriate” forum or, alternatively, that a stay should be granted where there is a “more appropriate forum” for the resolution of the dispute – the Spiliada Maritime Corporation v Cansulex Ltd[27] approach. The High Court rejected the invitation to abandon or modify the Voth test.[28]
[26] (2008) 238 CLR 265.
[27] [1987] AC 460.
[28] The plurality of French CJ, Gummow, Hayne and Kiefel JJ at [28] - [30] and Heydon and Crennan JJ at [38] – [42].
In Navarro v Jurado (“Navarro”),[29] the Full Court of this Court recently considered the application of these principles in the context of competing divorce proceedings in Australia and in Costa Rica. The separate judgments of Thackray and O’Ryan JJ, taken together, provide a comprehensive review of the authorities on the issue of forum in a family law context.
[29] (2010) 44 Fam LR 310.
At paragraph 29 of his separate reasons, Thackray J said:
…the plurality in Voth, at 559, and the majority in Puttick, at [27], emphasise that the focus must be, ‘upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum.’
Thus the plurality in Voth (at 558) and the majority in Henry (at footnote 68) stressed that Australian courts should not concern themselves with, ‘an assessment of the comparative procedural or other claims of the foreign forum.’
At paragraph 127 of his separate judgment, O’Ryan J explained the distinction between the “clearly inappropriate” test applied in Australia and the “more appropriate forum” test applied elsewhere in these terms:
The two tests are not identical, and the difference lies in the emphasis placed on the appropriateness of the local forum rather than the appropriateness of any available forum. The clearly inappropriate test avoids a mere comparison between the competing forums and focuses on the extent to which the continuation of the proceedings in the Australian court should be regarded as inappropriate. The question of whether an Australian court is a clearly inappropriate forum requires attention to be directed to the inappropriateness of that court, and not to the appropriateness or comparative appropriateness of the foreign forum. As the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) observed in Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491 at 503:
“Thus, it should at once be noted that a court is not an inappropriate forum merely because another is more appropriate.”
O’Ryan J, at paragraph 166, cited the following extract from the current edition of Nygh’s Conflict of Laws in Australia:
It seems fairly clear from the Court’s emphatic statement in Zhang that the primary judge should not weigh the relevant factors against one another. In Voth itself, the majority said that the primary judge’s focus should be ‘upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum’, a phrase recently repeated with approval by the majority in Puttick v Tenon Ltd. Although primary judges occasionally express their conclusions using metaphors of balancing and weighing, the process is not one of weighing those factors which point towards a stay against those that point away from a stay, but rather of assessing whether there are enough factors indicating that the forum is clearly inappropriate, in which case a stay should be granted. If there are significant factors pointing to the conclusion that the chosen forum is appropriate, it is immaterial that there may be many factors suggesting that another forum might also be appropriate or even more appropriate. The factors are not to be weighed to see where the balance lies because that would, in effect, be a Spiliada-like ‘more appropriate forum’ test.[30]
(footnotes omitted)
[30] Nygh, P, Conflict of Laws in Australia (2010, 8th ed, Lexis Nexis Butterworths).
Thus, on this application, the Husband carries the onus of establishing this as a clear case where assessment of the relevant factors leads to the conclusion that continuation of these proceedings would be vexatious in the Voth sense of, “…seriously and unfairly burdensome, prejudicial or damaging…” or oppressive in the Voth sense of, “…productive of serious and unjustified trouble and harassment…” such that this is a clearly inappropriate forum for the continuation of the Wife’s proceedings.
I should note that paragraph 3 of the written submissions provided by Mr Kirk of Senior Counsel advances what was said in Voth (supra) by Mason CJ, Deane, Dawson and Gaudron JJ about the extent of reasons of a trial judge in these cases at 565 as follows:
As regards both kinds of application and subject to one qualification, we respectfully agree with the substance of the advice contained in the speech of Lord Templeman in Spiliada, namely, that the primary judge should "be allowed to study the evidence and refresh" his or her memory of the relevant law "in the quiet [of his or her Chambers] without expense to the parties"; that he or she should not be burdened by unhelpful reference to other decisions on other facts; and "that submissions will be measured in hours and not days". The qualification is that we think that, in the ordinary case, counsel should be able to furnish the primary judge with any necessary assistance by a short, written (preferably agreed) summary identification of relevant connecting factors and by oral submissions measured in minutes rather than hours. There may well be circumstances in which the primary judge may conclude that it is desirable to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors and explaining why the local forum is or is not a clearly inappropriate one. Ordinarily, however, it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (i.e. "clearly inappropriate forum") grounds.
(footnotes omitted)
That approach was considered by Thackray J in Navarro at paragraphs 9 to 14. Having regard to that discussion and the nature of this case, it will be seen that I have resisted the “temptation” as described by Thackray J to deliver reasons in as short a form as might be contemplated by the subject statement in Voth.
The essence of both Deane J’s judgment in Oceanic and the majority of the High Court in Voth is that where Australia is a clearly inappropriate forum, allowing a case to proceed in Australia becomes oppressive or vexatious and thus the Court should decline to exercise jurisdiction to prevent abuse of its processes. Whether or not Australia is a clearly inappropriate forum depends on an assessment of the following (non-exhaustive) factors (derived from Lord Goff’s factors in Spiliada Maritime Corporation v Cansulex Ltd[31] as approved of in Voth and as added to by Henry at 592-593):
[31] [1987] AC 460.
a)Factors of convenience and expense, such as the location of witnesses;
b)Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing;
c)The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;
d)Whether the other potential forum will recognise Australian Orders and vice versa and the ease of enforcement in each country;
e)Which forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy;
f)The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;
g)The governing law of the dispute;
h)The place of residence of the parties;
i)The availability of an alternative forum; and
j)Any legitimate juridical advantage to litigating in either jurisdiction.
Drawing upon the exposition of the law by the majority of the High Court in Henry,[32] in Kemeny v Kemeny,[33] 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).[34]
[32] (1996) 185 CLR 571 at 591-593 per Dawson, Gaudron, McHugh and Gummow JJ.
[33] (1998) FLC 92-806.
[34] (1998) FLC 92-806 at 85,069.
Chronology
The Husband was born in Taiwan in 1970. He deposes that when he was a baby his parents purchased for him the property in New Taipei City which he still retains and in which he currently lives. He ascribes a value of AUD100,000 to that property in his Financial Statement filed 1 November 2011.
In August 1986, when the Husband was 16 years old, the family (comprising the Husband, both of his parents, and his brother H Tan, also known as R Tan) migrated to Australia under what the husband describes as the business migration policy. The Husband was granted Australian Citizenship in 1988 which he retains. The husband’s parents and his brother R have, it seems, lived in Australia ever since their migration here in 1986.
The Husband undertook tertiary education in Brisbane.
According to the Husband, in 1991 the Husband and his brother R purchased the property at U Street, E, Brisbane using funds supplied by their parents. The family lived in the residence on that property until moving to the residence owned by the parents at A Street, N, discussed further below. The parents still reside in that home. The husband and his brother retain ownership of the U Street property. The husband in his financial statement filed 1 November 2011 ascribes a value of $550,000 to what he describes as a 50% interest in this property (it is owned by the Husband and his brother as joint tenants).
On 14 January 1992 the Australian proprietary company B Company Pty Ltd was incorporated with the Husband, each of his parents, and his brother R each having 25% of the shareholding. From 1992 until 1999 the Husband deposes that he worked as a manager in purchasing and sales, I infer in a business or businesses conducted by that company.
As to the Husband’s shareholding in this company, the Husband deposes that on 11 August 2011 he sold his shareholding to a trust controlled by his father, namely the Tan Family Trust for AUD$1,042,650.00, but that payment for the sale by the Trust is yet to be made. The Husband deposes in paragraph 18 of his affidavit filed 1 November 2011 as to the reasons for this sale including reference to a lease being negotiated and concluding:
…the company is currently negotiating a new lease for the commercial premises… with a major retail store… which potentially is more financially advantageous. My family and I did not want the current lease negotiations being affected by the matrimonial property proceedings so I sold my shareholding for an appropriate price.
(emphasis added)
On 12 August 1996 the Husband’s family registered the Australian proprietary company HA Corporation Pty Ltd with the Husband’s parents, the Husband and his brother each holding 25% of the shares. The Husband ascribes a value of $72,675.00 to this shareholding in his Financial Statement.
On a date not identified, the Husband also became a partner in the firm “[Tan’s Company]”. The Husband does not identify the other partners but in circumstances where the Husband deposes that he holds a 25% interest in the partnership and the address of the partnership is given as G Street Brisbane, which is the same address recorded for each of the companies earlier referred to, it appears reasonable to infer that this is also one of the Husband’s family’s business entities. In his Financial Statement the Husband ascribes a value of $60,075.00 to his interest in this partnership.
The Husband deposes that in 1999 he returned to Taipei and that:
…since returning to live in Taipei in 1999, I have been responsible for building relationships between Taiwanese travel agents and my family’s Australian business interests.[35]
(emphasis added)
[35] Paragraph 10 of the Husband’s affidavit.
The Husband also deposes that between 1999 when he returned to Taipei, and 2007, he normally travelled to Australia, “…about every 5 or 6 months…” The duration of those visits is unspecified. The Husband deposes that he has not been to Australia since 2007 and that he has no intention of returning to live in Australia. The Husband attended the hearing before me in person.
However, in June 2007 the Husband joined a superannuation fund in Australia. He deposes that his parents deposited $50,000 into the fund when he joined it. The Husband has maintained his membership of that Australian superannuation fund and deposes to a current balance in the fund of $35,848.00. On the evidence, the Husband does not have any superannuation fund elsewhere than in Australia.
The Husband deposes that in March 2008, he purchased the property at P Road, P, wholly with funds provided by his parents. Property details attached to the copy of the affidavit of the wife’s solicitor, Dante Chen, which the Husband in turn annexed to the material filed in the Taiwanese proceedings and his affidavit before me, indicate that the property was purchased on 17 January 2008 for $1,030,000.00. It is that amount which the Husband adopts as the current value of the property in his Financial Statement.
As has already been noted, the parties married in Taiwan in May 2008.
It is important to note, in circumstances where the Husband bears the onus of proof on this application, that the Husband has not filed any affidavit in response to the Wife’s affidavit filed 23 November 2011. An Order was made by the Registrar on 2 November 2011 providing for, inter alia, each party to file and serve all affidavits relied upon for this hearing 14 days prior to its occurrence. The Husband thus had the opportunity to file an affidavit responding to the allegations contained in the Wife’s affidavit filed 23 November 2011 but has elected not to so do.
The following allegations of fact, relevant to the chronology of events, are contained in the wife’s affidavit filed 23 November 2011 and do not appear to be the subject of dispute or challenge by the Husband in the absence of any affidavit in reply:
(a)that the Husband maintained to the Wife and her relatives and friends that he was “an Australian” and proud of being an Australian and his possession of dual citizenships; [36]
(b)that the Husband maintained to the Wife that he considered Australia was his home, that he could enjoy a better lifestyle in Australia and that it was better for the parties’ child to be educated in Australia;
(c)that at or around the time the parties married (… May 2008), the parties planned to move to Australia to live once their child reached five years of age.
[36] Paragraph 7 of Wife’s affidavit filed 23 November 2011
Also relevant to the chronology is the evidence contained in paragraphs 6, 9, 10 and 12 of the affidavit of Dante Chen filed on 23 November 2011, similarly not the subject of specific challenge on the Husband’s case. That evidence is to the effect that (the parties having married in May 2008) in or about June 2008, the Husband’s parents gifted to both parties NTD$30,000,000.00 (the equivalent of approximately AUD$1,000,000.00) to purchase their matrimonial home which was registered solely in the name of the Husband; and that in or about December 2009 (at a time when the Wife says there were difficulties in the marriage), the Husband signed a contract to sell the property in a sale which settled in March 2010. The Husband did not provide the Wife with details of the sale. Further, that evidence includes the allegation that in August 2010, the Husband transferred a property he owned in Taiwan to his mother. That allegation is not challenged by the Husband in any affidavit in reply.
The Husband deposes that in July 2008, he, jointly with his brother, R, and with his parents, purchased the property at …2 P Road, P (“the P2 property”), with the purchase settling in November 2008. The search of the sales history for the property attached to the material annexed to the Husband’s affidavit indicates that the purchase price paid was AUD$1,680,000.00. The Husband ascribes to his “25% share” an estimated current value of AUD$420,000.00 in his Financial Statement filed on 1 November 2011 which obviously enough is 25% of the price that was paid for the property in July 2008.
The Husband deposes that in March 2009, again jointly with his parents and his brother, that the Husband acquired the house and land at 3… P Road, P (“the P3 property”). Whilst no details are provided in evidence as to the total price paid, in his Financial Statement the Husband ascribes an estimated value of AUD$280,000.00 to his “25% share” and if it may reasonably be inferred that the Husband has applied the same methodology to provide that estimate as with the P2 property it would follow that the total price was AUD$1,120,000.00. Thus the total of the purchase prices paid for the two P Road properties appears to be AUD$2,800,000.00.
The Husband deposes that his parents, “…contributed approximately $1,463,000.00 (Australian) from their superannuation fund towards the purchase of the two properties on [P] Road.” No evidence is provided by the Husband as to the source of the balance funds for these purchases, a balance which would seem to be in the order of $1,300,000.00, plus stamp duty and other costs of acquisition.
In his Financial Statement and affidavit for these proceedings, the Husband identifies his ownership of the following assets located in Australia and Taiwan respectively, and the Husband provides the following estimates of the value of each which appear to be derived, in respect of the real properties, from the historical cost of acquisition:
Assets in Australia
Asset
Value
100% interest in P property
$1,030,000.00
25% interest in P2 property
$420,000.00
25% interest in P3 property
$280,000.00
50% interest in U property
$550,000.00
Australian superannuation fund
$35,848.00
25% shareholding in HA Corporation
$72,675.00
25% shareholding in Tan’s Company
$60,075.00
Unpaid sale proceeds of 25% interest in B Company Pty Ltd
$1,042,650.00
A Westpac bank account (jointly owned by the Husband and other members of his family)
$600.00
TOTAL
$3,491,848.00
Assets in Taiwan
Asset
Value
A property in Taipei where the Husband continues to live;
$100,000.00
A bank account with E-Sun Commercial Bank;
$2,600.00
A 2008 Mercedes Benz; and
$20,000.00
TOTAL
$122,600.00
The husband’s inclusion as a liability, both in his affidavit and Financial Statement of the amount of AUD$2,000,000.00 as a “personal guarantee” will be discussed separately. Mr Kirk’s submissions to me to the effect that the net pool of assets was in the order of AUD$1,500,000.00 were likewise predicated upon the contingent liability under the asserted guarantee being treated as a present liability with a nil value being ascribed to the interest this alleged liability supports.
Husband’s Evidence – Husband’s Onus of Proof
The focus of determination of this application necessarily involves consideration of the nature and extent of connecting factors, or their absence, between the parties and their marriage and Australia and Taiwan.
As a starting point, bearing in mind that the Husband carries the onus, the Husband seeks to have this Court rely upon the evidence he advances to persuade the Court as to an absence of connecting factors with Australia. Whilst neither the Husband nor the Wife or any other witnesses were cross-examined before me, it seems to me that there are substantial internal inconsistencies as well as “gaps” in the Husband’s evidence of matters calling for explanation relevant to the central issue to be considered on the Husband’s application in the evidence the Husband advances.
That evidence includes translations of the material the Husband has put before the Taiwan Court in the Taiwan proceedings, although I acknowledge that many of the annexures to the Civil Plaint have not been translated.
RB Transport
At paragraph 10 of his affidavit filed 1 November 2011, the Husband deposes:
…since returning to live in Taipei in 1999, I have been responsible for building relationships between Taiwanese travel agents and my family’s Australian business interests. I am now building up the company, [RB Transport], but the company is new and it will be a long time before we see any profit. I am working very hard to get this business off the ground.
At paragraph 22.4 of that affidavit, the Husband deposes to having property in Taiwan and asserts the interest in this company to be property in that context.
Paragraph 22.4 contains:
An interest in the company, [RB Transport] Corp. I am the sole legal owner and President of this company – working towards launching an international [transport company]. I have given a personal guarantee for any borrowings of the company from [S] Investment Company (my business partners). The current balance of the loan from [S] Investment Company is approximately $2 million (Australian). I am currently not generating an income from this work. Once the company is generating a profit, I will receive an income. I am currently relying on the generosity of my parents and rental income from the properties in Australia to meet my living expenses.
Whilst there is that assertion by the Husband that his interest in RB Transport Corp is Taiwanese-based, there is no corroborative evidence provided by the Husband. There is no evidence as to where the company is incorporated, and the “business partners” referred to in that deposition are unknown. In his Financial Statement, the Husband nominates RB Transport Corp as his employer, and gives a Taiwanese address for that employer. The sole income he identifies in his Financial Statement is rent from the P2 and P3 properties in Australia of AUD$132.00 on an average weekly basis.
However, as was pointed out by Ms McLennan of Counsel for the Wife on the hearing before me, the Husband advances quite different evidence in the Taiwan proceedings to the Taiwan Court. Annexure ‘B’ is the translation of the “Civil Plaint” filed by the Husband in the Taiwan Court. Under the heading “Part 2 DIVORCE”, paragraph 2A contains:
…in February 2009 he co-founded [RB Transport] with the Royal family of …, aiming to explore the island’s potential for tourism (Exhibit 2) (the Plaintiff invested in technology). On the 14th of April 2011, the company was granted permission to establish a branch in Taiwan (Exhibit 3) and the Plaintiff became the general manager of the branch. His annual income is approximately $58,191.00 Australian Dollars (about $58,191 x 31.05 = $1,806,830.00 New Taiwan Dollars). This can be proven by the document issued by Paul Dufus, the Deputy Commissioner of Australian Taxation Office (Exhibit 4).
Similar propositions are advanced at paragraph 5 of the document headed “The plaintiff has the ability for parenting” and at paragraph 7 is the “parenting plan”, which includes a table relevantly containing this in respect of the heading “economic ability”:
The plaintiff is the general manager of Taiwan branch of [RB Transport]. His monthly income is about NT$150,000.00…
It would appear from Annexure ‘A’ to the Husband’s affidavit, being a translation of the Civil Order made by the Taiwan Court (see paragraph 2D), that the Taiwan Court concluded (perhaps unsurprisingly in view of the matters advanced to it as referred to) that the Husband receives, “…approximately $58,191.00 Australian Dollars (about $1,806,830 New Taiwan Dollars)…” as general manager of the Taiwan branch of RB Transport.
Of course, making due allowance for difficulties which can arise in the translation of documents, it may be that the Husband, in advancing his current employment as the general manager (for which he in fact receives no payment) with his Australian-sourced income from his business and property interests here, intended the relevant statements to be read disjunctively. Exhibit ‘B’ the Husband put before the Taiwan Court as proof of his income was his 2010 Australian Taxation Office Notice of Assessment for the year ended 30 June 2010, identifying the Husband’s taxable income as $58,191.00.
However, whatever be the true position, it is impossible to reconcile what the Husband advanced to the Taiwan Court as proof of his current income (entirely Australian-based) with the evidence he advances in his affidavit before me of receiving an income of $132.00 per week, entirely referenced to rentals from two of his Australian property interests. Plainly, an income of $132.00 per week amounts to an annual amount of about $6,800.00, which is in stark contrast to the case presented by the Husband to the Taiwan Court that he is currently earning income of AUD$58,191.00.
In relation to the Husband’s 30 June 2010 Notice of Assessment, it is to be noted that fundamental to Australian income taxation law is that assessable income for Australian residents includes income derived directly or indirectly from all sources, whether in or out of Australia during the relevant income year. For foreign residents, assessable income comprises income sourced in Australia. Legislation governing the payment of the Medicare levy provides exemptions from the levy for foreign residents.[37]
[37] Income Tax Assessment Act 1997 (Cth); Medicare Levy Act 1986 (Cth).
What is unexplained by the Husband is whether, for Australian taxation purposes, he is content to be treated as an Australian resident given that his 30 June 2010 Notice of Assessment includes the assessment of the Medicare levy. Absent explanation by the Husband, that is an inference open on the evidence.
That aside, in both the Taiwan proceedings and these proceedings, the only evidence the Husband offers as to income or sources of income is entirely Australian-based. That is, there is no evidence advanced by the Husband to demonstrate that at any point during the marriage or since the parties’ separation, that the Husband has been in receipt of any income that is other than entirely Australian sourced, despite his return to Taipei to, as he deposes, build relationships between, “Taiwanese agents and my family’s Australian business interests.”
Given the relative contemporaneity of the Husband’s material in the Taiwan proceedings and his affidavit and Financial Statement before me, the Husband’s assertions in the Taiwan proceedings to the effect that he has Australian-based income in the order of $58,191.00 is irreconcilable with his Financial Statement filed in these proceedings. The obvious inference is that the Husband disingenuously seeks to minimise, in this application, the extent to which his financial dependence is sourced in Australia.
Put simply, the Husband offers no evidence before me to demonstrate that he has any source of income other than that which he sources from Australia and he advances no evidence to demonstrate that this was any different throughout the entirety of the parties’ relationship and marriage.
I note in passing that in his Financial Statement, the Husband deposes to weekly expenses of $762.00. As noted, the sole income he discloses from rental of properties in Australia is $132.00 per week, leaving a balance of $630.00. per week. The Husband deposes in his affidavit that apart from his rental income, he relies upon the generosity of his parents to meet his living expenses. As noted, the Husband’s parents have been resident in Australia since 1986, and it is plain from the chronology outlined above and the status of the Husband’s property holdings in Australia that his financial affairs are interwoven with those of his parents and his brother.
In circumstances where the Husband holds property interests in real properties and business interests in Australia said by him, on his own estimates, to have a value in the order of $3,500,000.00, the current assertion by the Husband that his Australian income is limited to $132.00 per week or $6,800.00 per annum would require far more comprehensive evidence than that advanced by the Husband to accept that what the Husband advances in his Financial Statement is an accurate reflection of his financial dependence upon his Australian-based assets.
In this context, it is to be noted that in his affidavit contained within his Financial Statement filed on 1 November 2011, the Husband swore or affirmed that he had disclosed in his Financial Statement or in an affidavit filed by him all matters he is required to disclose under Rule 13.04 of the Family Law Rules 2004 (Cth). That is plainly not the case. Rule 13.04(1)(d) requires the disclosure of the income earned by each of the entities in which the Husband has an interest. Those entities have already been referred to. Rule 13.04(1)(g) requires disclosure concerning the disposal of property (as raised by the Wife’s unanswered allegations of certain property being disposed of). Neither of those matters are in fact addressed in the Husband’s Financial Statement or in any affidavit he has filed, contrary to the Husband’s deposition. Such information would be important, both to the assessment of the Husband’s financial connections with Australia and the veracity of his estimates of value which he places upon his shareholdings and the claim he makes as to receipt of income.
In this respect, the 2010 Notice of Assessment for the Husband already referred to notes an amount of $18,214.00 as the amount of “refundable tax offsets”. Whilst it is entirely a matter of speculation, given the Husband’s failure to address these matters, presumably these tax offsets relate to distributions to the Husband via his shareholdings from income upon which the companies have paid tax but, as noted, this is necessarily speculative. The point is that nowhere has the Husband disclosed to this Court the income derived from the entities in which he has an interest, nor has he explained how he receives income of only $132.00 per week currently in the face of his 2010 Notice of Assessment advanced in the Taiwan proceedings as evidence of his current income.
Australian public records
I have already noted that on the evidence before me as to the Husband’s 2010 Notice of Assessment, there is a basis for inferring that the Husband is content to be treated as an Australian resident for Australian taxation purposes. That inference is not rendered unreasonable by any evidence advanced by the Husband on this application.
There is also no explanation proffered by the Husband as to why it would be that on none of the public records in evidence before the Court as to the Husband’s real property holdings, does an address other than an Australian address, appear. Even for the property at P Road, P, wholly owned by the Husband, the owner’s address is recorded as G Street, Brisbane. This address is shown on ASIC searches as the current principal place of practice for each of B Company Pty Ltd (in relation to which the Husband asserts he has sold his shareholding) and HA Corporation Pty Ltd (in which the Husband holds 25% of the shares but is not recorded as a director). Whilst it may be a matter of convenience for the Husband to list the Australian address of his family’s business enterprises as his own address for his Australian real property ownership records, in circumstances where the Husband offers no evidence as to the ongoing operation or management of these assets this, taken with the evidence otherwise as to the extent to which the Husband’s financial affairs have always been interwoven with those of his Australian-based family, further highlights the Husband’s connections with Australia.
In this context I note that in the Australian Securities and Investment Commission (“ASIC”) search documents attached to the affidavit of the Wife’s solicitor filed 15 August 2011, the Husband’s residential address is particularised as, “[A Street, N],” (the residence of his parents) and not as an address in Taipei, where the Father deposes that he lives and intends to continue to live indefinitely.
The Corporations Act 2001(Cth) contains strict requirements that accurate particulars of members be given to ASIC. For example, s 169 of that Act requires a company to maintain a register of its members which includes their residential address. There are offences prescribed in that legislation for companies who fail to notify ASIC of corrections to such details. It appears that the Husband and other members of his family associated with the subject companies are content to promote with ASIC and those outsiders dealing with the companies that the Husband resides in Australia, rather than in Taipei.
I reiterate that an Order was made by the Registrar on 2 November 2011 providing for each party to file and serve all affidavits relied upon for this hearing. I reiterate that the Husband did not take the opportunity to file any affidavit in response to the allegations made by the Wife in her affidavit filed 23 November 2011. As already noted, the Wife’s affidavit contained specific assertions as to the Husband maintaining to the Wife and others that he regarded himself as an Australian; that he considered Australia as his “home”; and that the parties planned to live in Australia when their child turned five years of age.
Husband’s future plans
Whilst the Husband deposes that he has not been to Australia since 2007, and that he has no intention of returning to live in Australia, aside from his acquisitions of Australian property since 2007, it is relevant to note that this evidence appears to be at odds, or at least require some explanation, having regard to the content of the Husband’s material in the Taiwan proceedings.
Whilst the Husband deposes to having no intention of returning to live in Australia, this would seem at odds not only with the property acquisitions he has made or benefitted from since his return to Taiwan, but, more particularly, is at odds with material he advanced to the Taiwan Court in the Taiwan proceedings.
Remembering that the Wife’s unanswered allegations in her affidavit filed 23 November 2011 include the deposition to the effect that the parties planned to live in Australia once their only child, T, attained the age of five years, the Husband advances in the Taiwan proceedings that he has taken steps to enrol the child (who holds Australian citizenship) into a Brisbane private school. Whilst it is unclear on the Husband’s material at what age the Husband intends for his son to commence attending the Brisbane private school, the fact is that the Husband considered it necessary to detail in the Taiwanese proceedings proposed parenting Orders and details of care for the child that would have the child living in Australia and being educated here.
The Husband’s Taiwan proceedings are replete with references to the Husband being assisted in the care of the child by his parents and brother, who live in Australia.
In those proceedings, the Husband advances that he lived at the parents’ property at A Street, N, described as an “Australian castle”. That description is apt having regard to the photographs of the property and even the plans of the property that are put before the Taiwan Court disclosing that the residence has something like a dozen carparking spaces on the basement floor; four bedrooms and a family room on the first floor; and a further eight bedrooms plus dining, living and kitchen facilities on the ground floor level. Notably, the Husband advances in the Taiwan proceedings, “…his parents would also like to provide the property for [the child] as support to the plaintiff.”
In relation to the “appropriate parenting plan” the Husband advances in the Taiwan proceedings, is the information that the Husband has already applied to enrol the child into a Brisbane private school and that, “…the enrolment is very competitive but the plaintiff and his family have already prepared for his schooling in advance.” That document also provides a proposed “visiting plan” which includes:
In Australia; the defendant can visit and live (sic) the child giving two weeks’ notice to the plaintiff.
Given the Husband’s assertions in the Taiwan proceedings to the effect that he has such a deep attachment to the child that the child becomes distressed when the Husband even leaves the room, and the content of the future parenting plans advanced to the Taiwan Court involving the child living in Australia and being educated here (and the absence of any assertion that that would occur with the Husband remaining in Taiwan), it would seem a reasonable inference that the Husband plans to either move to Australia with the child or at the least become a regular and constant visitor. Although these plans may be sometime in the future, the Husband’s assertions in his affidavit filed for these proceedings that he has no intention of ever moving to Australia appear to be rather disingenuous, and his ties to Australia considerably stronger than he deposes in his affidavit. At the very least, the Husband ought reasonably to have provided some explanation to reconcile (if they can be reconciled) the assertions in his affidavit filed in these proceedings and what is contained in the Taiwan proceedings.
The extent to which the Husband’s financial affairs are interwoven with the Husband’s Australian-based family and the assets in Australia are expressed by the Husband himself (as translated in Annexure ‘B’ to his affidavit) in the Taiwan proceedings in the following ways, where the Husband addresses the Wife’s action in instituting these proceedings in Australia:
The defendant left home all of a sudden and froze assets as high as a few hundred million New Taiwan Dollars earned by the plaintiff, his parents and brother in Australia. This amounts to approximately all of the accessible assets of the plaintiff.
…
The plaintiff and his family have worked hard in Australia for many years and accumulated most of their assets in Australia.
…
The defendant planed (sic) to get all the Plaintiff’s assets in Australia and consequently threatened the major source of income of his family.
…
It is particularly heartbreaking for the Plaintiff that she froze the assets which were earned by the Plaintiff and his family through many years’ hard work in Australia.
In his Financial Statement filed in these proceedings, the Husband claims to have a liability of $2,000,000.00 under a personal guarantee. Plainly enough, that is not a present liability, but a contingent one on the evidence offered by the Husband in these proceedings. In stark contrast, in the Taiwan proceedings, the Husband specifically asserts (notwithstanding the formation of RB Transport discussed at some length in those proceedings, out of which the subject guarantee is said to arise) that he has no debts at all. No explanation was offered by the Husband for this stark contrast, making a $2,000,000.00 difference to his financial standing. In the circumstances, I am inclined against taking the contingent liability into account in assessing the factors to be considered.
As already noted, the Husband claims in his Financial Statement in these proceedings to earn or receive income of only $132.00 per week. I have already pointed out the difference between that and the income the Husband claims to receive in the Taiwan proceedings as supported by an Australian Notice of Assessment for the year ended 30 June 2010. Further, as the Wife points out in her affidavit of 23 November 2011 (paragraph 9(iv)), the Husband advances to the Taiwan Court that he donated 100 power generators, valued at approximately NTD$4,000,000 (equivalent to AUD$133,333.33) for the earthquake in Japan in 2011. The Husband does not claim in his Financial Statement any debt owing to his family notwithstanding what he says about the family in Australia providing for his current support. I also note that having received an estimate from Mr Kirk of Senior Counsel that Mr Kirk’s fees for this application would be $13,500.00 plus GST, the Husband is represented on this application by Mr Kirk SC and his instructing solicitors.
Husband’s expert evidence
Relevant to the onus which the Husband bears on this application is the paucity of expert evidence, both in its nature and extent, advanced by the Husband in support of his case.
It would seem obvious that on this application, it is essential that the Husband demonstrate via reliable expert evidence which is comprehensible, the applicable law of Taiwan which evidence is comprehensive having regard to the factors to be considered by the Court.
In this Court, expert evidence is governed by Part 15.5 of the Family Law Rules 2004 (Cth) (“the Rules”). Application of the Rules in Part 15.5 is designed to achieve the Court receiving the assistance of expert evidence on a relevant issue from a single expert who, without being exhaustive:
k)is suitably qualified for the task;
l)is independent of the parties;
m)is instructed by the parties jointly in writing or as is directed by the Court; and
n)understands the expert’s duties as identified in Divisions 15.5.4, 15.5.5 and 15.5.6 of the Rules.
However, in this case, the Husband seeks to rely on the evidence of one Mr W, the Taiwan lawyer he has retained to conduct the Taiwan proceedings. Mr W provides a mixture of evidence as to facts asserted relating to the Taiwan proceedings (not of an expert evidence kind) and what purports to be expert evidence as to the law of Taiwan and its application to this case (expert evidence).
Despite ample opportunity to comply with Part 15.5 of the Rules, the Husband has not so done.
In cases of this kind, it ought not fall to this Court to attempt itself to discern the applicable foreign law relevant to the Husband’s application, upon which he bears the onus, without the assistance of reliable expert evidence.
It is not possible for the Court, on the material presented, even including the evidence in the Wife’s case of a similar kind, to be satisfied that the Court can reach comprehensive conclusions on the law of Taiwan relevant to this case.
As but one example, there is no evidence before the Court explaining (and no review of the translated Taiwan Code of Civil Procedure reveals) how it is legitimate (if it be legitimate) that on the one hand in these proceedings, the Husband estimates his “25% interest” in the P2 property to have a value of $420,000.00 (apparently based on the fact that the property was purchased for $1,680,000.00 albeit in 2008) yet on the other hand, the Husband advances in the Taiwan proceedings that his interest is to be taken at a value of 25% of $380,000.00 i.e. $95,000.00. The only reference point I can discern on the material before me to the figure of $380,000.00 as the total value for the property is that this is the unimproved land value on the property search information attached to Mr Chen’s affidavit, a copy of which is in turn annexed by the Husband to his affidavit. That same document reveals that the property was last transacted on 15 July 2008 for a recorded sale price of $1,680,000.00 and the document also records that the property contains a large dwelling.
In this context, I note in passing that Mr Kirk of Senior Counsel for the Husband submitted to the effect that any perceived juridical advantage to the Wife of property proceedings here as compared to Taiwan is illusory. He submitted to the effect that if 10% of the “pool” (i.e. the net assets of the parties or either of them) is the maximum the Wife could reasonably expect as an outcome of property proceedings here then, taking costs into account, there would be no substantial difference for the outcome to the Wife of property proceedings in Taiwan.
However, these submissions would appear to ignore that the Husband has sought a declaration from the Taiwan Court that, “…after the divorce…” any “claim” the Wife might make (the Husband has not sought an Order that the Wife actually receive anything) be limited to NTD$1,014,523.00, which equates to AUD$32,207.08 (applying the conversion rate of 31.5 submitted at the hearing before me as the current applicable rate).
Whilst the Court must do what it reasonably can on the evidence as to discerning the relevant foreign law, it is the position that the Husband, in attempting to meet his onus, has not sought to provide single expert evidence fulfilling the criteria of Part 15.5 of the relevant Rules. Such confidence as the Court could have in Mr W’s evidence is eroded by the feature that attached to the affidavit of the Husband’s solicitor filed 23 January 2012 is a letter from Mr W which appears to (the language used is ambiguous and somewhat unintelligible) contain a concession by Mr W of either an earlier error by him or at least a concession in favour of evidence advanced in the Wife’s case from Taiwan sources.
The Taiwan Proceedings
The evidence of the Wife provided in her affidavit filed 23 November 2011, which goes unanswered by the Husband, is that the Wife was not aware of, and did not receive, the Civil Plaint filed by the Husband until she was provided with a copy of the Respondent’s affidavit in these proceedings on 1 November 2011.
Thus, the Wife was not aware of, and did not receive any notice to attend, the mediation apparently scheduled to take place on 26 October 2011.
Since becoming aware of the proceedings in Taiwan, the Wife has apparently caused her lawyer in Taiwan to give notice to the Taiwan Court that none of the addresses for service for her listed in the Civil Plaint were correct or valid.
Thus it would appear that at this stage, the Wife has not been properly served with the Taiwan proceedings or at least there is an issue as to whether the Wife had notice of those proceedings prior to the first hearing in the Taiwan Court.
That aspect aside, as Ms McLennan of Counsel for the Wife highlighted before me, the Husband’s application for divorce in Taiwan specifically relies upon Article 1052(2) of the Civil Code of Taiwan. Exhibit 1 in the proceedings before me is part of the translated provisions of that Civil Code.
Article 1052(2) is in these terms:
Whether either the husband dor the wife meets one of the following conditions, the other party may petition the court for a judicial decree of divorce:
…
(2) Where he or she has consensual sexual intercourse with another person;
…
The article appears to require the Husband to establish before the Taiwan Court that the Wife has had consensual sexual intercourse with a person other than the Husband.
What is curious about this is that whilst on the evidence of both parties before this Court, it would seem other grounds for divorce would be available under the Taiwan Civil Code, but the Husband’s Civil Plaint filed in Taiwan, whilst it contains many criticisms of the Wife, does not contain any specific allegation to support the specific ground for divorce upon which he relies. That is, the Husband does not allege in the Taiwan proceedings by any specific allegation that the Wife has had consensual sexual intercourse with another person.
Part of the Wife’s allegations in her affidavit filed on 23 November 2011, which I reiterate are not responded to by the Husband, is the allegation in paragraph 4(2) that since September 2010, the, “…Respondent had continuingly and constantly threatened if I failed to divorce him on his terms, I would never be able to see the child again.”
In the absence of comprehensive expert evidence, I do not know what significance, if any, there is as to the Husband choosing to rely upon the specific ground for divorce referred to, as opposed to some more general ground. No specific argument was addressed on this aspect in the hearing before me. There was no evidence provided by the Husband, expert or otherwise, as to what potential effect upon property issues there may be if the Husband makes out the ground for divorce he contends for. Whilst it would be a matter for expert evidence, I note, in passing, that Article 1056 of the Civil Code appears to make provision for a claim for compensation by an, “…injured party…” who is, “…not at fault…”
By reason of his Civil Plaint, the Husband was apparently able to obtain an Order on an ex parte basis (remembering that on the Wife’s evidence, she was not served with the Civil Plaint), but that ex parte Order did not include an Order for divorce, nor did the Taiwan Court make any parenting Order with respect to the child, despite that being sought by the Husband. It appears that the Order simply restricts the child’s removal from the Republic of China.
As to the property proceedings in Taiwan, it is abundantly clear that the Husband has not in fact sought an Order for any property distribution. What he has sought is in the nature of some preliminary step of seeking a declaration as to the amount which the Wife is limited in claiming. The evidence before me from Taiwanese sources establishes that no actual property distribution can be made until a divorce Order has been made, but the point here is no such Order has been sought.
On the evidence before me, it is something of an unknown as to whether the Husband will ever establish the ground for divorce for which he contends in Taiwan, given that in neither the affidavit material before me, nor, more importantly, in the material he advances to the Taiwan Court, does the Husband specify any allegation in support of the ground for divorce for which he contends. There is no satisfactory evidence before me as to what may be involved in the divorce proceedings in Taiwan if the Husband maintains this as the sole ground for divorce.
Consequently, it is something of an unknown quantity as to when, or if, the position will be reached in Taiwan as to when property proceedings can ensue.
In respect of the property proceedings in Taiwan, very little evidence is provided to me as to how the relevant articles in the Civil Code would be applied in this case.
In the hearing before me, there was discussion as to the content of Article 1017, which is in these terms:
The property of either the husband or the wife shall be divided into the property acquired before marriage and the property acquired in marriage, and shall be owned respectively. If the property could not be proven to be the property acquired before marriage or in marriage, it shall be presumed as the property acquired in marriage; it (sic) the property could not be proven to be owned by the husband or the wife, it shall be presumed as owned by the husband and the wife jointly.
The remains of fruits gained from the property acquired either by the husband or the wife before marriage during the continuance of the marriage relationship shall be deemed as the property acquired in marriage.
If the husband and the wife have contracted the holding of matrimonial property, and then adopted the statutory regime, the property before the adoption shall be deemed as the property acquired before marriage.
This article seems to provide that property acquired before marriage is placed in a separate category to property acquired during the marriage. Upon divorce, it is the property which is acquired during marriage (after deducting debts incurred during the marriage) which is equally distributed between the Husband and the Wife. There would appear to be an exclusion in relation to property acquired by way of inheritance or gift set out in later articles.
I have earlier referred to what is contained in the Husband’s Taiwan proceedings, focussing upon what seems to be the Husband’s position so far as the declaration he seeks is concerned, namely that only the single Australian property referred to in the Husband’s material is the sole property acquired during marriage.
However, as was raised in the course of argument, Article 1017 also makes references to, “…fruits gained from the property acquired either by the husband or the wife before marriage during the continuance of the marriage relationship shall be deemed as the property acquired in marriage.”
Again, this Court is not assisted by any expert evidence as to the meaning of this, either generally or as it might apply to this case, but on the face of it, it appears that in the Taiwan proceedings it may well be very relevant to determine what the Husband has received via his Australian assets and his involvement in his family businesses in Australia during the currency of the parties’ marriage.
As already noted, there is considerable evidence before me establishing that the Husband’s financial affairs, including his affairs throughout the period of the marriage of the parties, were, and continue to be, intimately connected and interwoven with the Husband’s family in Australia and the Tan family business operations in Australia.
I stress that this Court is left to speculate, in the absence of comprehensive expert evidence, as to what may or may not be involved in property proceedings in Taiwan. However, in circumstances where the Husband bears the onus of proof on this application, absent that evidence and in particular absent evidence which makes it plain that in the circumstances of this particular case, there would not be significant involvement concerning evidence surrounding the Husband’s involvement with his family in Australia and the family businesses in Australia, this is relevant to a number of the factors to be assessed.
Assessment of Relevant Factors
Much of the foregoing discussion is relevant to consideration of one or more of the following specific factors that will be addressed. To avoid repetition, that discussion will not be repeated in dealing further with the specific factors addressed in the following discussion.
Factors of Convenience and Expense
This factor is somewhat ironic in the context of this case as it obviously prima facie weighs against the Wife to litigate in Australia; yet it is the Wife who has instituted the substantive proceedings and is seeking to keep these proceedings in Australia and the Husband, who (as will be explained further below) will be subject to comparatively less inconvenience and expense by proceedings here, who is applying for a permanent stay of these proceedings.
The greatest disadvantages to the Wife in litigating in Australia are that she does not live in Australia (she currently resides in Taipei in Taiwan) and that, on her evidence, she is currently impecunious. Consequently, her attendance in Australia for the determination of property proceedings will involve international travel and thus cause the Wife to incur significant expense. Additionally, the Wife does not speak English and requires a translator for all of her legal documentation as well an interpreter at all Court proceedings, adding further costs. There is also evidence from the Husband that all of the Wife’s family live in Taiwan; should any of them be required as witnesses in this matter, that will be yet another expense for the Wife (even if their evidence is given by electronic means); although given the short duration of the marriage and the apparent lack of scope for controversy about s 79 contribution factors there would appear to be little need for such evidence. Despite this, given that it is the Wife’s Application that the proceedings should be heard here in Australia, I infer that any inconvenience and expense of doing so have been determined by the Wife not to be prohibitive and that the Wife declines to take advantage of the normally protective effect of this consideration for a party in her position.
Yet that does not neutralise this factor altogether. The Husband, too, will have to bear inconvenience and expense in litigating in Australia, albeit not to the same degree as the Wife. The primary inconvenience and expense for the Husband is, as with the Wife, that he lives in Taiwan. However, his travel to Australia is made comparatively easier and less expensive by his Australian citizenship and the fact that a significant number of his immediate family (including his parents) reside in this country. Also, unlike the Wife, the Husband speaks fluent English, having completed tertiary education in Australia. Moreover, the Husband is, on the evidence, a person of financial means.
In any event, given the lack of expert evidence provided by the Husband on his application as to the manner in which the Civil Code of Taiwan would be applied to any property proceedings in Taiwan concerning the Husband’s interests in Australia both in his own right, but more particularly as they involve his Australian-based family, the Husband has not excluded that there would not in any event be very significant focus upon facts and events in Australia, or sourced in Australia, even in property proceedings in Taiwan. The Husband does not exclude, for example, the prospect that each of his family members, based in Australia, will be relevant witnesses. Nor does he exclude the prospect of detailed examination of what has transpired with the businesses based in Australia during the currency of the marriage or in the period since the parties’ separation.
Another factor of convenience and expense weighing in favour of Australia as a forum is that the vast majority of the Husband’s property which is the subject of the Wife’s application for a property settlement (both real property and business interests) is located in Australia.
It is probable that in contested property proceeding such as the substantive proceedings here, that all or at least most of these assets will need to be valued by experts, and in the case of the business interests, that investigations and evidence of an expert accountant will be necessary. Given that the valuations of the Australian assets will be completed in English and the Taiwanese assets, it can be assumed, in Taiwanese (or perhaps English), it will be far less expensive for that evidence to be gathered and used in an Australian court than in a Taiwanese court as the cost of translating a large volume of technical documents will be avoided. Moreover, any necessary analysis of the extent to which the financial affairs of the Husband are intertwined with those of his Australian-based family members is far more readily achieved by an Australian Court in these proceedings.
Balancing this is, of course, the evidence and submissions of both parties to the effect that the Wife would likely be subjected to limitations as to claiming the Husband’s Australian assets under Taiwanese law. In that circumstance, it may be that valuation of all those assets would not be required, negating this consideration. However, in circumstances where no conclusive evidence was provided by either party as to the process under Taiwanese law, for example, whether it is part of the procedure for all assets to be valued to determine the claim, I can make no concluded finding on that point. Moreover, there is the question, of whether the P2 property acquired by the Husband during the marriage may, for that reason, form part of the property to be considered under Taiwanese law.
Therefore, putting to one side the inconvenience and expense incurred by the Wife in litigating in Australia for the reasons referred to above, I am left with the inconvenience and expense incurred to the Husband in terms of travel time and cost for himself and any Taiwanese witnesses, and, on the other hand, the potential savings in terms of reduced translation costs for valuation evidence regarding the Australian assets and the availability of the Husband’s family members here as potential witnesses.
However, putting aside the value of the Wife’s potential claim for the time being, both parties agreed in submissions before me that the Wife is entitled, under Taiwanese law, to a liquidation of the assets acquired during marriage (including the P2 property) and to claim 50% of the proceeds. Such an Order would come under the definition of an enforceable money judgment in the Foreign Judgments Act 1991 (Cth), and thus be relatively easily enforceable in Australia.
Given that both parties appear to agree that the Wife’s entitlement to a property settlement under Taiwanese law is likely to be limited to a monetary sum, such Orders would be enforceable in Australia against the Husband’s Australian assets.
Thus, on the whole of the evidence (such as it is), it appears that this factor is finely balanced. The most likely Orders to be made in Australia would not require enforcement in Taiwan but probably can be in respect of the Husband’s Australian-based assets if that were necessary. A Taiwanese money judgment would similarly be enforceable in Australia. However, on balance the simplest route for the recognition and enforcement of property Orders in this matter is for a property settlement to be decided by an Australian Court involving the Husband’s Australian assets.
Resolution of the Entirety of the Controversy
The controversy between these parties, as reflected in the proceedings in Taiwan and here, is the parties’ divorce; what may be described as parenting Orders with respect to the child T; and property proceedings. Even though, as mentioned above, divorce in Taiwan is fault-based, both parties raised during argument that several grounds exist, on either party’s case, upon which a divorce Order may be made. Aside from property Orders, there are currently no spousal maintenance or child maintenance proceedings on foot, or foreshadowed, either in Taiwan or Australia.
The first issue in assessing this factor is whether the divorce, property and parenting proceedings all relate to the same “controversy” between the parties.
Mr Kirk of Senior Counsel for the Husband submitted that it would be a fundamental misconception to view the matter in dispute as being merely one for property settlement or simply from the perspective of the relief claimed in this Court. It was submitted that the Wife’s application for property settlement is properly to be regarded as but one aspect of the dispute between the Husband and the Wife.
Mr Kirk referred to the following passage in CSR Ltd v Cigna Insurance Australia Ltd[40] at 400-401:
In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same substratum of fact, the question is not whether the Australian Court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial, or damaging”…
At first instance, Rolf J gave little, if any, weight to the fact that the US proceedings involve an issue which, apparently, cannot be litigated in New South Wales. Moreover, His Honour appears only to have considered whether New South Wales is an appropriate forum for litigation of the issues involved in the NSW proceedings and not whether, having regard to the controversy as a whole, the NSW proceedings are vexatious or oppressive, in the Voth sense of those terms. In these respects, His Honour was in error.
[40] (1997) 189 CLR 347.
Mr Kirk also referred to the following passage in Henry at 83,124:
Although the appellant first brought proceedings 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. Although it may not be quite 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 if they were 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.
Mr Kirk submitted that it is only the Court in Taiwan that can resolve the entire controversy with respect to this marital relationship and, “…as a necessary consequence, this Court is a clearly inappropriate forum.”
However, by comparison with Henry, there are critical distinguishing factors in this case.
In Henry, the parties married in Germany and lived outside Australia, principally in Monaco, thereafter. The Husband and the Wife in that case commenced separate divorce proceedings in Monaco. After his proceedings were struck out, the Husband abandoned his residence in Monaco and returned to Australia. He then commenced proceedings for the dissolution of marriage in the Family Court of Australia on the basis that he was then domiciled in Australia. There were no children of the marriage. The Husband had bank accounts and business interests in several countries, but few assets in Australia. The Wife applied to have the Australian proceedings stayed on the ground of lack of domicile, and forum non conveniens.
The majority in Henry at 591 observed:
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 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.
In his separate judgment in Henry, Brennan CJ said at 580:
The institution of marriage is of fundamental legal and social significance, but the marriage status is of little significance to the legal system or society of a territory in which the parties have never lived as man and wife, where there are no children of the marriage and where there is no substantial amount of property belonging to the spouses or on which a spouse might reasonably be thought to have a claim by virtue of the marital relationship. The courts of such a territory are prima facie inappropriate fora in which to institute proceedings for a decree of dissolution of the marriage. That is the present case.
Importantly, in this case, it was the Wife who first instituted proceedings in Australia. Those proceedings were for property settlement, but by virtue of the Husband’s citizenship, this Court prima facie has jurisdiction with respect to the marriage of the parties and issues which arise upon the parties’ separation.
Given that the Wife has submitted to the jurisdiction, there would have been no reason for the Court to decline jurisdiction if the Husband had instituted proceedings for divorce in this country rather than in Taiwan. That is, the Wife, having instituted proceedings here, it was the Husband who chose to institute divorce proceedings in Taiwan when it was open to him to avoid that situation by instituting proceedings here.
More importantly, in stark contrast to Henry, there is abundant evidence in this case as to the extent of the Husband’s property interests in Australia. Moreover, the evidence supports the conclusion that the incidence of this particular marriage involved, in a financial sense, significant connection with Australia having regard to the Husband’s involvement with his family in Australia and the family businesses in Australia and the transactions that have been referred to, sourced in Australia. I have already referred to the feature that in attempting to prove his financial standing to the Taiwan Court, the Husband points solely to Australian-sourced income for the year ended 30 June 2010, prior to the parties’ separation.
It is clear enough that the same substratum of fact is not involved in divorce proceedings and property proceedings in Australia. That is, dissolution of marriage depends solely upon proving that the marriage has broken down irretrievably, as evidenced by the parties’ separation for at least twelve months. That has little to do with the factual matters to be considered in property proceedings.
As to parenting proceedings, while this Court has jurisdiction, it would be right to think that the Court would be disinclined to exercise its jurisdiction whilst the position is that the child is not living in Australia and remains living in Taiwan. However, the Husband’s active plan is for the child to come to Australia for his education. On the evidence, that is consistent with the joint plan of the parties formulated during marriage. The determination of parenting proceedings at a given point in time is not static or “once and for all”, particularly in circumstances where the child is as young as T and there is an active plan for him to be relocated internationally from Taiwan to Australia on the Husband’s proposal.
Thus, whilst there is currently no application before this Court for dissolution of the marriage or parenting proceedings, which features point heavily in favour of Taiwan as being the forum in which the entirety of the controversy between the parties could currently be determined, the test remains whether continuation of the proceedings here 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.”
On balance, I am not satisfied that this factor, in and of itself, in the particular circumstances of this case, enables the Husband to establish oppression or vexation in the relevant senses.
As already noted, the Husband has not in fact instituted property proceedings seeking an Order for property distribution in Taiwan. All the Husband has done thus far is to institute a preliminary inquiry in Taiwan as to a declaration seeking to place a limit upon the amount which the Wife can claim in any subsequent proceedings she might institute. It might be thought that the limit sought to be set by the Husband would make it economically unviable, if the Husband succeeds in having that limit set, for the Wife to in fact seek any property Order in Taiwan.
If the Husband succeeds in his plans for the child, it would see the child spending most of his childhood in Australia rather than in Taiwan. That points to a future involving, if the parties cannot agree, a Court being called upon to decide parenting issues with respect to the child and, if he is in Australia, as both parties apparently planned would be the case during the marriage, then there could be no suggestion that this Court is a clearly inappropriate one for such future parenting proceedings.
The order in which the proceedings were instituted, the stage which they have reached and the costs incurred
These considerations can be dealt with relatively briefly. It is clear on the evidence before me that the Wife instituted proceedings in Australia on 15 August 2011, almost a month prior to the Husband instituting proceedings in Taiwan on 8 September 2011.
In terms of the progression of each case, it is clear that the proceedings in Australia have only reached their preliminary stages. The parties have appeared in this Court only twice – once for the purpose of obtaining a hearing date, and the second for the hearing before me concerning forum. However, the proceedings in Taiwan appear to be no more advanced. The Taiwan Court made an interim Order on 22 September 2011 limited to restricting the subject child’s movement out of the Republic of China. It appears that the Taiwan Court declined to make any further parenting Order as sought by the Husband.
It must be noted that the Wife deposes, in her affidavit filed 23 November 2011, that she did not know of the Husband’s application for those Orders until her Australian solicitor provided her with a copy of the Husband’s affidavit filed on 1 November 2011 (presumably at some point following that date, though exactly when is unclear). The Order made by the Taiwan Court appears to confirm that the Wife did not appear at the interim hearing as the Orders made refer to evidence presented by the Husband alone and make no reference to any contrary arguments or material put forward by the Wife.
It is important that it be recognised that the so-called property proceedings instituted by the Husband in Taiwan are not in fact proceedings for property distribution. Such proceedings cannot be determined in Taiwan until a divorce has been granted. The Husband has not sought an Order for property distribution; he has simply sought a declaration as to the maximum claim the Wife could make should she choose to make a claim for property distribution.
In contrast, in these proceedings, the Wife has sought property Orders and she is entitled to pursue Orders for property settlement irrespective of a divorce being granted.
Regarding the costs incurred, it is evident that much has already been expended on the Australian proceedings, and very little on the Taiwanese proceedings. On the documentation provided by the Husband, the Wife was unrepresented at the hearing for the interim parenting Order, whereas in Australia, the Wife was represented both by a solicitor and by Counsel. Furthermore, the Wife has also expended the funds to travel to Australia for this interim hearing before me, as well as to have all the requisite Taiwanese documentation translated. The Husband similarly employed both a firm of solicitors and Senior Counsel for this hearing and paid for the translation of documents. In that respect, therefore, it would appear that this factor favours Australia not being a clearly inappropriate forum in which to continue this litigation.
Governing Law
The governing law in relation to a property settlement is relatively simple to discern. Section 42(1) of the Act makes it clear that where this Court has jurisdiction in a matter (which is the case here, as discussed above), that jurisdiction must be exercised by applying the provisions of the Act, rather than those of some other legal system.
Viewed another way, unlike a tort case such as Voth itself where the place where the tort occurred and hence the law to be applied was an important consideration, that is not so in this case. This is, in proceedings here the Court applies Australian law and is not tasked with discerning and applying foreign law.
Place of Residence of the Parties
The preponderance of evidence before me is that both parties presently reside in Taiwan, subject only to what the Australian public records, including those held by ASIC, record about the Husband as discussed above.
Availability of an Alternative Forum
As is evident, Taiwan is available as an alternative forum for this dispute, and neither party disputes that the Taiwanese Courts have jurisdiction over this matter.
I note, as an aside, the Full Court’s judgment in Henry where, at 187, the majority of Dawson, Gaudron, McHugh and Gummow JJ held:
To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage.
However, this does not appear to sit comfortably with the comments of the almost identical majority of Mason CJ and Deane, Dawson and Gaudron JJ in Voth (of which Henry is said to approve) at 558:
Indeed, circumstances could well exist in which the local court was a clearly inappropriate one notwithstanding that there was no other tribunal which was competent to entertain the particular proceedings…
These two statements do not appear consistent. It can only be presumed that the later decision of Henry most accurately describes the position of the High Court at present or at least so far as family law proceedings are concerned. However, as already mentioned, there is no need to make conclusive findings in that regard for the purposes of the present case.
Legitimate Juridical Advantage
The Wife, for her part, contended in her Case Outline filed 24 January 2011 that Australia is the only jurisdiction in which the Wife can obtain relief by way of a property settlement on an interim basis (the law of Taiwan prohibiting property distribution until the fault-based divorce proceedings are decided). The Wife further alleged that, at best, she would be entitled to a half share in the property acquired by the parties during marriage. However, Counsel for the Wife conceded during the hearing before me that it was possible, having regard to the terms of Article 1017 of the Taiwan Civil Code, that income obtained from the shareholdings and other properties owned by the Husband from the time of marriage could be accessed by the Wife as part of a property settlement. Nonetheless, it is evident that there is a legitimate juridical advantage to the Wife in litigating in Australia.
As already noted, the Wife seeks in these proceedings to bring an interim application for partial property settlement. The evidence before me does not establish that the Wife could bring such an application in Taiwan. Irrespective of whether or not such an application would succeed (about which I make no finding), the feature that the Wife can in these proceedings bring such an application, which if successful would provide her with funds to prosecute her claim, is a relevant consideration.
At this juncture, it is apposite to note the High Court’s comments in the case of Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at [72]:
Where, as here, the applicant on a stay motion seeks to rely upon a foreign lex causae as providing an advantage, then, at a level of specificity, the applicant should advance appropriate evidence as to the foreign law and particular features of that law which provide that advantage to the applicant.
The Husband did not seek to establish before me that application of Taiwanese law provided an advantage to him. Rather, it was contended on behalf of the Husband that in the circumstances of this case, there would be a similar outcome, whatever law was applied.
The Husband, although not disputing the substantive advantages to the Wife of litigating in Australia in terms of her ability to access a greater part of his assets, contends that any advantage in terms of her capacity to obtain an interim and pre-divorce property settlement is “illusory” given that the obtaining of a divorce in Taiwan, even given its fault-based nature, is inevitable on the evidence of either party, rendering the availability of property proceedings in Taiwan similarly inevitable.
This argument seems somewhat disingenuous on the part of the Husband given that his argument concerning juridical advantage is similarly time-based; namely that the dispute can be resolved more quickly in Taiwan than in Australia. Even if the mere advantage of the capacity to apply for of an immediate distribution is considered insufficient to amount to a “legitimate juridical advantage”, I nonetheless find that, as already noted, such an advantage exists in terms of the amount of property the Wife can access in Australia as opposed to Taiwan. Given that previous decisions on this issue have held that the availability of greater damages awards amounts to a legitimate juridical advantage,[41] I find that, analogously, access to a greater portion of a couple’s marital assets is, similarly, a legitimate juridical advantage.
[41] Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, 482 (Lord Goff).
For his part, the Husband alleges that he has legitimate personal or juridical advantages in litigating the matter in Taiwan as his application will be heard sooner in Taiwan than in Australia and his legal costs will be far lower than in Australia. However, these provide little assistance to the Husband for two reasons.
First, the evidence before me, by the Husband’s own Taiwanese solicitor, Mr W, in an affidavit filed 23 January 2012, is that the proceedings in Taiwan will take one to two and a half years, almost identical to the one and a half to two years the Husband asserts, in his affidavit filed 1 November 2011, that the Australian proceedings are predicted to take.
Second, the mere fact of lesser cost of itself does not necessarily meet the description of a “legitimate personal advantage”. It is true that English cases such as Lubbe v Cape Plc [2000] 4 All ER 268 and Connelly v RTZ Corp Plc [1998] AC 854 have cited the availability of Legal Aid as a legitimate personal advantage; however, that is only where the litigant in question would otherwise be unable to prosecute the matter in the alternative jurisdiction due to a lack of funds to appoint legal representation. The case at hand is very different. The Husband is, even on his own account, a wealthy man with significant assets. The property pool, on the Husband’s own financial statement, (ignoring the claimed liability) amounts to something in the order of $3,500,000.00. The mere fact that legal fees are lower in one jurisdiction as opposed to the other does not prevent the Husband from litigating in Australia; it is merely a matter of convenience on his part. That, without more, does not meet the threshold of amounting to a “legitimate personal advantage”.
In any event, on the assumption that Taiwanese proceedings would involve ascertaining the rents and profits acquired during the marriage (and the Husband did not provide expert evidence that this would not be the case in Taiwan), in circumstances where the majority of assets are situated in Australia, it seems that the alleged lower costs of proceedings in Taiwan is open to question. That is no less the case having regard to the specific ground for divorce the Husband has chosen to rely upon when his own evidence does not specify the existence of a factual basis for that ground.
I therefore find that there is no legitimate juridical or personal advantage to the Husband litigating this matter in Taiwan as opposed to Australia, whereas the opposite is true for the Wife litigating this matter in Australia. This is an important, albeit not decisive, factor in any decision concerning forum non conveniens.[42]
[42] Henry v Henry (1996) 185 CLR 571, 587.
Assessment of Factors
In assessing all of the factors discussed above (a subjective process involving matters of impression as referred to by the High Court), I conclude that Australia is not a clearly inappropriate forum. Although the Wife appears to be disadvantaged by litigating in Australia due to the cost and inconvenience involved and her lack of English skills, the fact that it is she, and not her amply-funded, English speaking partner who is requesting that this matter be heard in Australia, negates the otherwise significant weight this Court normally attaches to such a consideration in cases of this kind.
The factors of convenience and expense also appear to weigh in favour of Australia not being a clearly inappropriate forum – the vast majority of the subject property is located in Australia, and the greatest disadvantage is again to the Wife which, as above, is negated by her apparent willingness to endure that disadvantage and pursue an action in this jurisdiction. In addition, proceedings were commenced first in Australia and arguably have reached a more advanced stage in this jurisdiction than they have in Taiwan, and have also resulted in the parties incurring far greater costs, the wastage of which through this Court declining to exercise jurisdiction should be avoided. Other factors weighing against Australia being a clearly inappropriate forum include that the governing law is Australian law and that the Wife is possessed of legitimate juridical advantage in litigating in Australia in the sense of being able to access a far greater portion of the Husband’s wealth than would be possible in Taiwan and to seek interim relief before final determination.
Although there may prima facie appear to be little connection of the parties and their marriage with Australia, the Husband’s investments here; his self-professed plans to have the only child of the relationship educated here; and the extent of the Husband’s familial ties to this country (and on the Husband’s case his family have been a significant source of financial provision for him historically) indicate that the Husband (and via the Husband the subject marriage) in fact has strong connections with Australia despite, with respect to the parties’ marriage, it also having strong connections with Taiwan. As concerns the question of the recognition and enforcement of Orders, the considerations are similarly finely balanced. If anything, that factor favours Australia, it being the forum in which it would be simple to enforce property settlement Orders in this particular matter.
Against that, there are two factors which would clearly favour Australia being an inappropriate forum. The first of these is the fact of the parties’ residence in Taiwan. However, even that does not weigh significantly against Australia as a forum given that, as already noted, there are some questions about the Husband’s existing (given his address as held by ASIC and other evidence in Australian public records) and intended (given his enrolment of the parties’ child at a Brisbane private school) residential addresses and his existing connections to Australia whilst the Wife, who has no connection, is prepared to litigate in Australia. The second factor, the fact that the resolution of the entire controversy cannot be achieved in Australia (assuming the Husband maintains his opposition to relocating the parenting proceedings to Australia), is more significant. Such a consideration is always important in any case arising out of a marital relationship, given the interconnections between matters of property, maintenance and children’s issues which often render multiple proceedings a process of duplication. However, for the reasons discussed above, it is not of itself a decisive factor in this case given its particular features.
In considering these factors, I have attempted to avoid the “comparative” deliberations more appropriate to the “more appropriate forum” test utilised in England than the “clearly inappropriate forum” test which prevails in Australia. However, comparison of the two jurisdictions to some extent is a necessity; in reality, the key difference between the two tests is that the Australian approach requires focus upon the inappropriateness of the local forum rather than the appropriateness or comparative appropriateness of the foreign forum. Indeed, as the majority held in Voth at 558:
The “clearly inappropriate forum” test is similar to 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.
(emphasis added)
I consider that putting this case at its highest for the Husband, this is one of those cases where an available foreign tribunal may be the natural or more appropriate forum but it cannot be said that this Court is a clearly inappropriate one. Alternatively, that this is one of those, “…complex and finely balanced…” cases referred to above. There are significant reasons, such as the avoidance of duplicate litigation, for the dispute to be heard in Taiwan. However, there are similarly significant reasons, such as the legitimate juridical advantage to the Wife in litigating in Australia and the connecting factors with Australia, for the current proceedings to be litigated here, and many of the factors do not weigh strongly either way.
In such a case, I must consider not whether Taiwan is a more appropriate forum but whether the higher threshold of Australia being a “clearly inappropriate forum”, as set out by the High Court above, is met. I do not consider that it has been. The ties between this case and Australia are real and valid, and there is not such an absence of connection as to render this Court a “clearly inappropriate” forum in which to litigate this dispute.
I therefore dismiss the Husband’s application for a stay of those proceedings.
Costs
The Husband also sought that the Wife pay his costs of and incidental to this Application. However, given that I have found in favour of the Wife and that the Wife did not seek costs herself, I have Ordered that the parties are, should they be unable to consent to Orders regarding costs, at liberty to apply to this Court regarding an Order for the costs of and incidental to this application.
I make the Orders as set out at the commencement of these reasons.
I certify that the preceding two hundred and thirty-two (232) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 12 April 2012.
Associate:
Date: 12 April 2012
14
9
8