Deslandes & Deslandes
[2015] FamCA 913
•27 October 2015
FAMILY COURT OF AUSTRALIA
| DESLANDES & DESLANDES | [2015] FamCA 913 |
| FAMILY LAW – PRACTICE AND PROCEDURE – FORUM – Where the wife has initiated proceedings in Australia through her application for property orders – Where the husband subsequently sought that the proceedings be permanently stayed on the basis of Australia being a clearly inappropriate forum – Where the parties entered a ante-nuptial agreement prior to their marriage in France – Application of the “clearly inappropriate forum” test as enunciated in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 – Where the parties have not lived in France since July 2007 and do not have any assets in France – Both parties intend to remain living in Australia – Parties’ ante-nuptial agreement does not include any clause or term to the effect that the parties submit exclusively to the courts of France to determine any financial issues – Resolution of the issues between the parties consequent upon marriage breakdown are to be viewed as a single controversy arising out of the same substratum of fact – The husband has invoked Australia’s jurisdiction through his application for parenting orders – No proceedings have been initiated in France – Determined that Australia is not a clearly inappropriate forum – Husband’s application for stay dismissed – Matter transferred to the Federal Circuit Court. |
| Family Law Act 1975 (Cth) |
| CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 | ||
| APPLICANT: | Ms Deslandes | |
| RESPONDENT: | Mr Deslandes |
| FILE NUMBER: | BRC | 4059 | of | 2015 |
| DATE DELIVERED: | 27 October 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 12 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Page QC |
| SOLICITOR FOR THE APPLICANT: | Corney & Lind Lawyers Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Cooper |
| SOLICITOR FOR THE RESPONDENT: | Emerson Family Law |
Orders
The respondent’s application for a stay of the proceedings instituted by the applicant is dismissed.
Pursuant to section 33B of the Family Law Act 1975 (Cth) the proceedings are transferred to the Federal Circuit Court and are to be listed to a date to be fixed by that Court.
The directions hearing listed before the Registrar at 11.00 am on 5 November 2015 is vacated.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Deslandes & Deslandes 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 4059 of 2015
| Ms Deslandes |
Applicant
And
| Mr Deslandes |
Respondent
REASONS FOR JUDGMENT
The husband and wife are French nationals who married in France in 2002 and came to Australia with their child (born in 2005) on 22 November 2011. The parties finally separated on 1 March 2015 whilst living in Australia. They and their child remain living here currently.
In order to obtain the relevant investor visa to live in Australia (granted on 23 August 2011) the husband deposited $750,000 with Queensland Treasury. The deposit was to be held for four years and currently remains deposited. The husband’s visa (from which the wife and child also derived rights of residence prior to the parties’ separation on 1 March 2015) remains valid until 18 January 2016. By then the husband must apply for permanent residence if he wishes to remain in Australia.
For the wife’s part, in circumstances where the parties are now separated, the wife has engaged an Australian Registered Migration Agent and lawyer to pursue her application for permanent residency in Australia in the context of her having secured full time employment as an optical dispenser; and enrolment in a course of full time study (online) which is being funded by her employer.
The wife deposes to her expectation of her likely eligibility for a residence visa given her employment status and enrolment in a course of study sponsored by her employer.
By an Initiating Application filed on 7 May 2015 in the Federal Circuit Court (“the FCC”) the wife seeks interim orders for, inter alia, spousal maintenance and litigation funding and final orders by way of property settlement pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
By his Response filed on 26 May 2015 the husband seeks:
a)A stay of these proceedings “indefinitely on the basis of Lex Causai [sic] and conflict of laws”; and
b)Parenting orders with respect to the child of the marriage pursuant to Part VII of the Act.
The husband’s application for a stay of these proceedings is essentially founded upon the fact that prior to the parties’ marriage and on 19 July 2002 the parties entered into a Marriage Contract in France pursuant to French civil law, importing the regime for property settlement prescribed in Articles 1536 to 1543 of the French Civil Code.
Counsel for the husband contended that, in the face of the Marriage Contract, the wife’s proceedings for property settlement constitute “an abuse of process” and/or that the proceedings ought be stayed on forum grounds.
The discrete issue for determination on this hearing is whether the doctrine of forum non conveniens under the conflict of law rules in Australia compels 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 (“Oceanic”)[1] and Voth v Manildra Flour Mills Pty Ltd (“Voth”).[2]
[1] (1988) 165 CLR 197.
[2] (1990) 171 CLR 538.
It ought be noted that there are no proceedings instituted by either party in France or anywhere else currently other than these proceedings.
In Henry v Henry (“Henry”)[3] 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 the 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 the maintenance of the Australian proceedings would be vexatious or oppressive.[4]
[3] (1996) 185 CLR 571.
[4] At 586-587 (Dawson, Gaudron, McHugh and Gummow JJ).
In CSR Ltd v Cigna Insurance Australia Ltd (“CSR”)[5] 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”.[6]
[5] (1997) 189 CLR 345.
[6] Ibid at 391.
In Voth, the High Court 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 the 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 juris-diction 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…[7]
[7] (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 Corporation v Cansulex Ltd (“Spiliada”)[8] 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.
[8] [1987] AC 460.
In this case both parties have relied upon expert evidence addressing the issue of forum. However, leaving aside the feature that both experts purport to swear to the issue, the content of the husband’s expert’s evidence seems more directed to demonstrating that a French court would have jurisdiction and would be the “more appropriate” forum. Even if it were the case (which for reasons which follow I do not accept) that a French court could be seen to be the “more appropriate” forum, that does not result in the conclusion that Australia is a “clearly inappropriate” one.
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. In this regard, Deane J stated in Oceanic, a statement 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 case, 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. [9]
[9] (1988) 165 CLR 197 at 248.
The Voth test of “clearly inappropriate forum” has been discussed in subsequent High Court cases including Henry; CSR; Regie Nationale des Usines Renault SA v Zhang[10] and Puttick v Tenon Ltd.[11]
[10] (2002) 210 CLR 491.
[11] (2008) 238 CLR 265.
In Navarro v Jurado (“Navarro”)[12] the Full Court of this Court considered an application of these principles in the context of competing divorce proceedings in Australia and in Costa Rica respectively. 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.
[12] (2010) 44 Fam LR 310.
At [29] of his separate Reasons, Thackray J said:
…The plurality in Voth at CLR 559; ALR 137, and the majority in Puttick, at [27], emphasised 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 CLR 558; ALR 136) and the majority in Henry (at fn 68) stressed that Australian courts should not concern themselves with “an assessment of the comparative procedural or other claims of the foreign forum”.
At [127] of his separate Reasons, 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 foreign 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 v Zhang (2002) 210 CLR 491; 187 ALR 1; 35 MVR 1; [2002] HCA 10 at [24] (Zhang): “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 [166] cited the following extract from Nygh’s Conflict of Laws in Australia:
[I]t 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 that 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. [Footnote omitted.] [Emphasis added.][13]
[13] Nygh, P, Conflict of Laws in Australia (2010) 8th edition, LexisNexis Butterworths.
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) as approved of in Voth and as added to by Henry at
592-593:
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-a-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.
In Kemeny v Kemeny[14] 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).[15]
[14] (1998) FLC 92-806.
[15] Ibid at 85,069.
That noted, it is important to recognise as a principle of central importance that issues between husband and wife arising out of the matrimonial relationship and consequent upon its breakdown are part of a single controversy.[16]
[16] Henry v Henry (1996) 185 CLR 571 and Dobson and Van Londen (2005) FLC 93-225.
Resolution
Whilst the parties and child are French nationals it was in December 2005 that the husband sold his business in France for approximately $4 million (the wife asserts it was for €4 million). In July 2007 the parties and child left France and “sailed around the world” for a period of 4.5 years on their yacht which the husband had commissioned to be built with the proceeds of sale of his business.
That voyage concluded in the parties and their child arriving in Australia in 2011.
Whilst the husband sought to emphasise that the parties and their child have lived in Australia for “only” some four years, the fact is that the parties and their child left France in mid-2007. That is, some five years of their married life together was in France; then about 4.5 years of the marriage was spent on the voyage referred to and since 2011 the parties and their child have lived in Australia.
Neither party, it seems, retained any asset of any substance situated in France after they left France in mid-2007. The assets of the parties or either of them are situated in Australia.
Following the family’s arrival in Australia in 2011 the husband established two Australian corporations, namely, B Pty Ltd and C Pty Ltd. From then and continuing, the husband’s business has involved building, refurbishing, and selling residential property in Australia.
Likewise since coming to Australia the wife started businesses neither of which, it seems, continue to trade. As earlier noted, the wife is currently in full time employment in Australia and is undertaking an employer-sponsored course of study in Australia.
The parties’ commitment, as at 2011, to their future life being in Australia may be inferred from the feature that such a substantial deposit was then made ($750,000) and since maintained to support their investor visa status in Australia; together with the feature that both of the parties embarked upon business ventures located in Australia; and the husband continues to pursue his business interests in Australia via Australian corporations.
The parties’ assets or the assets of either of them are located in Australia. This includes the yacht earlier referred to, on the husband’s estimate worth $300,000; the Queensland Treasury bond of $750,000 and the business interests of each of the parties via their respective businesses or corporations.
Plainly enough, in circumstances where both parties are resident in Australia and have been now for some years; and both parties plan to remain living in Australia; it cannot be said that matters of convenience or expense, including the location of any necessary witnesses, renders Australia a clearly inappropriate forum.
In terms of participation in proceedings, it would appear clear enough that significant additional cost and expense would be involved in the parties participating in proceedings in France (where they do not live) as compared with proceedings in Australia (where they do live).
It is of central importance to note that in responding to the wife’s application the husband seeks parenting orders pursuant to Part VII of the Act. In circumstances where the husband has himself invoked this Court’s jurisdiction to make parenting orders pursuant to the Act, it is contradictory for the husband to contend that this Court is a clearly inappropriate forum.
That the husband seeks parenting orders in these proceedings brings into focus the important principle earlier mentioned that resolution of the issues between husband and wife consequent upon marriage breakdown are to be viewed as a single controversy arising out of the same substratum of fact. That is, regard must be had to the controversy as a whole to determine whether the Australian proceedings are vexatious and oppressive in the Voth sense of these terms, that is, that they are “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging”.[17]
[17] CSR at 400-401 and Henry at page 587.
There are no proceedings instituted by the husband in France. However, given his filed Response in these proceedings the husband would have it that this Court ought determine parenting issues whilst there are proceedings in France to determine property/financial issues. That result would, in the circumstances of this case, be plainly vexatious and oppressive to the wife.
The husband relied upon the expert evidence of Mr D, a French and American lawyer, in support of his case. However, in my judgment the husband’s expert provides evidence that a French court would have jurisdiction and that expert’s opinion, properly construed, is to the effect that France is the “more appropriate” forum, but as already noted that is not the test. As earlier referred to, even if it could be said that France is a “more appropriate” forum (and I do not accept that to be so), it is well settled that the fact that a foreign tribunal is “more appropriate” does not render the conclusion that Australia is a “clearly inappropriate” one.[18]
[18] Oceanic per Brennan J at page 248 adopted in Voth.
In my judgment it is of determinative significance that parenting issues point to Australia as being the natural forum to determine the whole of the issues between the parties consequent upon their marriage breakdown.
The husband points to the parties’ ante-nuptial agreement made pursuant to the French Civil Code and his consequent juridical advantage in having financial issues determined in France. Obviously enough, in Australian proceedings a court exercising jurisdiction under Part VIII of the Act applies Australian law to the dispute and may adjust the property rights of the parties regardless of any rights acquired or vested in them under foreign law.[19]
[19]Importantly it is to be noted that the ante-nuptial agreement (a translated version is Annexure “PD-1” to the husband’s affidavit filed on 26 May 2015) does not include any clause or term to the effect that the parties submit exclusively to the courts of France to determine any financial issues; or any agreement that the parties could not bring proceedings other than in France. In other words, the parties did not include in their agreement any promise not to sue in a foreign jurisdiction, as might support the discretionary relief of an injunction granted in aid of such a promise, as referred to by the High Court in CSR (at page 392).
As was pointed out in argument the fact that the parties made an ante-nuptial agreement will not necessarily be ignored in property proceedings under the Act. Indeed that agreement may well provide an important source of evidence as to the initial capital contributed by each party to the marriage.
In Woodland and Todd[20] the Full Court said this about an antecedent agreement, at [38] and [39]:
38.Where parties enter into an agreement concerning property, other than an agreement approved under the provisions of the Act or embodied in consent orders, and one party subsequently commences proceedings under s 79 for an alteration of property interests, the Court must determine the application on its merits having regard to the factors as set out in s 79(4) as they exist at the time of the hearing of the application under s 79 and according to the law in force at that time and not, as to either of those two matters, at the time the agreement was made. There is no threshold test, before embarking upon the s 79 exercise, to determine whether the earlier agreement was just and equitable at the time it was made according to the facts as they then existed and the law then in force. The earlier agreement should be considered (as an indication of what the parties may have regarded as just and equitable at the time), but its provisions only given effect if they coincide with an order which is just and equitable according to s 79 at the time of the hearing.
39.In determining s 79 applications in circumstances where there has been an earlier agreement, it will often be necessary to consider what was the value of the parties' assets at the time of the agreement, what their various contributions were to that time, and what might have been an appropriate s 75(2) adjustment. A consideration of these matters might well be necessary in order to provide a background to the parties' understanding of what was a just and equitable settlement at the time. However, and perhaps more significantly, it would generally be necessary for the Court to acquaint itself with changes in the composition and value of the property pool, so that post-separation contributions can be assessed.
[20] (2005) FLC 93-217.
In my judgment, any juridical advantage to the husband of proceedings in France in reliance upon the agreement referred to does not render the conclusion that Australia is a clearly inappropriate forum for the determination of the issues arising between the parties consequent upon the breakdown of their marriage in Australia; which issues are obviously not confined to matters of property settlement.
Put another way, the factor of any legitimate juridical advantage to the husband of litigation in France is overwhelmed by the other factors referred to. In particular, Australia provides more effectively for a complete resolution of the matters involved in the parties’ controversy and the connection of the parties and their marriage with Australia, as referred to, results in the conclusion that Australia cannot be said to be a clearly inappropriate forum.
For these reasons the husband’s application for a stay of the wife’s property settlement and spousal maintenance proceedings is dismissed. For the same reasons the husband’s contention that these proceedings constitute an abuse of process is rejected.
These proceedings were transferred from the FCC because of the need to determine the forum issue that has now been determined. In the circumstances there is no ongoing reason for the proceedings to remain in this Court, as opposed to being heard and determined in the FCC, I will further order that the proceedings be transferred to the FCC at Brisbane.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 27 October 2015.
Associate:
Date: 27 October 2015
In the Marriage of Hannema (1981) 7 Fam LR 542; In the Marriage of Cain (1987) FLC 91-808;
and In the Marriage of Gilmore (1993) FLC 92-353.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Stay of Proceedings
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Abuse of Process
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Procedural Fairness
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