DESPREZ & DESPREZ
[2015] FamCA 232
•2 April 2015
FAMILY COURT OF AUSTRALIA
| DESPREZ & DESPREZ | [2015] FamCA 232 |
| FAMILY LAW – Forum non conveniens – Husband and wife in Australia with children on a 457 skilled worker visa – Marriage breaks down – Husband takes job in Country C from whence they had come – Wife issues proceedings under Part VIII of the Family Law Act 1975 (Cth) and husband objects seeking a permanent stay on the grounds of forum – Husband commences proceedings in Country C for property settlement – Parenting issue still alive and unaffected by stay application – On balance, stay should be granted. |
| Family Law Act 1975 (Cth) |
| Henry and Henry (1996) FLC 92-685 |
| APPLICANT: | Mr Desprez |
| RESPONDENT: | Ms Desprez |
| FILE NUMBER: | MLC | 3066 | of | 2014 |
| DATE DELIVERED: | 2 April 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 30 March2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirkham QC with Ms Stoikovska |
| SOLICITOR FOR THE APPLICANT: | Jo-Anna F S Moy |
| COUNSEL FOR THE RESPONDENT: | Mr Dixon SC |
| SOLICITOR FOR THE RESPONDENT: | Alpass & Associates |
Orders
That the application of the wife seeking orders under Part VIII of the Family Law Act 1975 (Cth) be permanently stayed.
That the balance of the wife’s initiating application seeking parenting orders is adjourned to a date to be fixed for trial before a judge.
That the application in a case filed by the wife on 20 March 2015 is dismissed.
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel including two senior counsel and two counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Desprez & Desprez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3066 of 2014
| Mr Desprez |
Applicant
And
| Ms Desprez |
Respondent
REASONS FOR JUDGMENT
Ms Desprez (the wife) issued proceedings out of the Federal Circuit Court of Australia seeking parenting and property orders. The Husband, Mr Desprez maintains the Australian courts are the inappropriate forum.
These reasons concern the issue of whether a stay should be granted against the wife continuing with the Australian proceedings (but only the property part). The wife’s interlocutory application related to discovery and it was common ground that if the stay was not granted, discovery orders follow and the parties needed to “get on with it”.
Jurisdiction to make a stay order was not disputed by either party; it is to be found in s 34 of the Family Law Act1975 (Cth) (“the Act”) or alternatively, in the inherent power of the Court to protect abuses of its process.
The test for the determination of forum is the clearly inappropriate forum question (see Voth and Manildra Flour Mills Limited (1991) 71 CLR 538 and Henry and Henry (1996) FLC 92-685). In Henry, the High Court said that the test of clearly inappropriate forum was the test to be applied in Family Court proceedings.
Convenience alone does not necessarily mean that the local court is a clearly inappropriate jurisdiction. The question is whether or not the continuation of the proceedings would be oppressive in the sense of being seriously and unfairly burdensome, prejudicial or damaging, or vexatious, in the sense of being productive of serious and unjustified trouble and harassment (see Henry).
The onus lies with the husband to establish that the Australian jurisdiction is clearly inappropriate.
As set out in Henry, the matters to be considered by the Court include:
(a)Whether if both courts have jurisdiction, each will recognise the other’s orders and decrees;
(b)Which forum can provide more effectively a complete resolution of the matters involved in the controversy;
(c)The order in which the proceedings were instituted and the stage and costs reached;
(d)The connection of the parties and their marriage with each of the requested jurisdictions;
(e)The issues surrounding the relief associated with those jurisdictions; and
(f)Whether having regard to their respective resources and their understanding of the language, the parties were able to participate in either of the jurisdictions on an equal footing.
In Steen and Black (2000) FLC 93-005, this Court held that the various factors had to be balanced against each other. The Court said that in that process, the appropriateness of a variety of issues was to be contemplated including:
· Was there a significant connection between the forums selected and the subject matter of the action and the domicile and places of business of the parties?;
· Was there a legitimate and substantial juridical advantage to a party in this Court?; and
· Whether the law of the forum be the substantive law to be applied in the resolution of the respective parties’ rights and obligations.
The various authorities all require an examination of each case on its peculiar facts and ultimately, because this is a balancing of various factors, the exercise of discretion.
Both parties were represented by senior members of counsel. In the case of the husband, Mr Kirkham of Her Majesty’s Counsel and in the case of the wife, Mr Dixon of Senior Counsel. Each relied upon a list of affidavits and subsequent to the hearing (by agreement), pointed to references about one issue that had remained unclear. Each agreed to have the matter determined on the papers and their submissions and in a very limited timeframe because of my convenience. I was assisted enormously by their respective written submissions.
In this case, some basic background assists.
The husband and wife were born and married in Country A in 1995. In 1996, their first child was born in Country B. In 1997, the family moved to Country C where in 1998, twins were born. There were moves within Country C for the husband’s employment purposes until 2009 during which, the parties became Citizens of that Country.
In 2009, when the husband was appointed to a research and development position for Asia and the Pacific, the family came to Australia. They entered Australia on a work visa and rented accommodation. The work visa was described as “subclass 457” for skilled persons.
In 2012, the husband suggested a move to Country D but the wife opposed the idea and it did not occur.
In 2013, the Australian work visas were extended for 4 years. There appears to be no dispute that thereafter:
·In August 2013, the husband engaged lawyers to lodge an application for permanent residency in Australia;
·In August 2013, the Australian Government was told that the husband’s position in Australia was permanent and full time;
·In February 2014 whilst in Country C, the husband was informed by letter from the wife’s lawyer, the marriage was at an end;
·The husband returned to Australia but the parties lived together under the one roof until May 2014 when the wife and the children moved to other rental accommodation;
·In April 2014, the wife commenced proceedings in the Federal Circuit Court initially only pursuing financial relief and on 22 May 2014, the husband filed a response seeking a stay of the proceedings;
·On 7 August 2014, the wife then sought a panoply of relief including parenting orders, maintenance for the then adult child, an injunction and child support.
It is contentious, but I do not have to decide the point, just when the husband learned of an offer of an employment position in Country C. He said it was in February 2014 but he did not tell the wife until April 2014. Each party has provided sworn evidence about the matter so the issue can be ventilated at a future time and it may become a matter that affects at least the husband’s credibility. It is not contentious that the husband is no longer seeking permanent residence in Australia.
In June 2014, at a hearing before Judge Bender, interim orders were made in relation to financial matters on an amended application filed by the wife. It is not clear to me how those orders came to be orders of the court but it would seem that the husband did not dispute them. As the hearing before me began, Mr Kirkham QC informed me that the husband did not wish to disturb the existing orders regardless of the application he was then making. He is therefore paying $500 per week by way of interim spousal maintenance and $250 per week by way of child support. The husband was also ordered to pay the school fees for the adult daughter. Jurisdiction to make any of those orders was not raised before me nor in the appeal to which I shall now turn.
The June proceedings were adjourned and came back for hearing before Judge Bender in September 2014 where, with both parties represented, the stay issue was argued along with parenting issues. The financial proceedings were transferred to this Court and her Honour determined the parenting issues on a final basis.
On 15 January 2015, on appeal from Judge Bender, the Full Court discharged her Honour’s parenting orders and remitted the matter to the Federal Circuit Court for rehearing with the recommendation it should be transferred to this Court because otherwise, there would have been two courts dealing with extant matters. Judge Baumann accommodated that on 24 February 2015.
Thus, before this Court is one application but which seeks both parenting and financial orders. Save that the husband indicated that he was not seeking to depart from, or review, the parenting arrangements, he remained silent on parenting orders. He acknowledged in his affidavit that there were difficulties in his relationship with the children. He attributed that to the wife but he also admitted that a text message intended by him to be received by his new girlfriend that went to one of his daughters, was unfortunate. I agree.
As a result of the appeal against the parenting orders, there are now no extant parenting orders but the application by the wife remains alive.
Needless to say, as I observed in discussion, the twins are now of an age where they will very much have a strong view about their future destiny. On the other hand, so might the Australian Government because, although the family visas based on the husband’s entitlement to work, were extended to 2017, the cancellation of his visa has ended the entitlement of the wife and the children to remain here. That issue gave rise to both parties producing expert evidence before Judge Bender of just what is likely to happen from the Government’s perspective. I raise it now because it is a factor which is relevant to the forum determination.
The husband’s employer gave notice to the Australian Government that the “457” visa should be terminated as the husband was no longer in Australia. Migration law expert, Ms E filed an affidavit in November 2014 on behalf of the husband in which she deposed to the following:
·The wife and children were ineligible for student visas;
·Any appeal by the wife to the relevant review tribunal must fail because there was no discretion to grant such visas;
·The avenue proposed by the wife of a personal appeal to the Minister would be “extremely unlikely” to succeed because there were no exceptional circumstances; and
·A solicitor could not ethically certify (and it would be a breach of the Migration Act to encourage) litigation that had no reasonable prospect of success.
The wife’s migration law expert Mr F said (in an affidavit filed on behalf of the wife on 14 January 2015) that the wife had been able to obtain bridging visas as a result of the cancellation of what had been in place based on a student visa principle but ultimately, her substantive application had been rejected. He had anticipated that when he swore an affidavit in 2014. He went on to say that the wife had applied for a review to the relevant tribunal. The outcome of that review is apparently likely to be known in May. He thought that a rejection on the merits review was ultimately likely but there was then the judicial review. He set out the time frames which are, on my impression, slow.
Mr F denied the E view that it was “extremely unlikely” that the Minister would intervene because in his view, there were “unique and exceptional” circumstances in the wife’s case as well as a “public interest” in how the operation of the relevant legislation had “unforeseen adverse consequences” for families where the visa holder had departed Australia.
To the extent that this issue requires a finding and one could be made on very limited and untested facts, nothing in what I read of the evidence of Mr F nor in anything senior counsel for the wife submitted, gave me any understanding of what the unique and exceptional circumstances were nor what the public interest was said to be. In my view, balancing the evidence of Ms E and Mr F, I would accept that of Ms E on the basis that there is at least a common view that, based on the known approach of the government, it is doubtful that the wife could remain in Australia other than through significant steps to review. All of those steps would have to be taken ultimately leading to what I find puts the children in the position where they as adults, could deal with the problem themselves.
Ultimately he thought that the children could make their own applications and if that occurred, the wife could make a guardian visa application but even that could not be guaranteed.
The process seems fraught with difficulty because of the underlying requirements of constant review or appellate processes. Nothing in the evidence of Mr F gave me any confidence that there were positive prospects. The inference I have drawn is that every avenue of review creates delay ultimately leading to the children becoming adults and then the wife having some prospect of success as a guardian. Thus, even if the wife continues with proceedings here, she could not give the Court any confidence that at any moment she will not have to bring another review to endeavour to stave off what appears to be a government policy.
I find accordingly, that the wife’s security of tenure here is limited even with the children in her care.
Senior Counsel for the wife also acknowledged that the contentious issue of the husband taking on the employment contract was really about asking the Court to draw an inference that he took a lower paid position deliberately. To be fair to the wife, she has complained that full details of the financial position have been denied her. Senior counsel for the husband confirmed that the husband had not provided discovery because of the objection to the jurisdiction of the Court. Thus, in respect of the matters that follow, I am not in any position to make findings about just what the husband’s true financial position is. It is necessary for me to traverse that area however because it is relevant to the question of the forum for reasons to which I shall later return.
Although the June 2014 financial arrangements were apparently not consensual, the husband did not appeal. He had the opportunity to do so. Those orders were presumably made on an historical basis. The husband now maintains that he cannot afford the contribution sought by the wife. To some extent, the international exchange rate affects the situation as well.
The husband has traditionally earned not only a good salary but also received a bonus. His current financial position about a potential bonus remains unknown. His current salary is US $240,000 and after taxes, health insurance and rent, he is left with US $97,531. From that, he has the 2014 orders to meet. The total obligation to the wife is US $50,520. His counsel calculated after that, he was down to US $47,000. Mr Kirkham drew my attention to the August 2014 affidavit where the husband set out all of his expenses but which included the children. Doing the best I can, it is hard to see how he could live on less than $800 per week on those figures. I accept that even on the untested evidence that, absent some form of bonus, there is little to go around.
What has not been mentioned thus far is that around 24 March 2015, the husband’s Country C lawyers filed a property dispute application in the courts. No application for injunctive relief about that has been sought by the wife thus far. That gave rise to an argument about advantages (and disadvantages) between jurisdictions. It was submitted by senior counsel for the wife that the wife would be disadvantaged because property acquired prior to the relationship would be excluded and in this case, there was real property in Country A. Each counsel researched the position of their respective clients about whether the Country A property had been mentioned and how and I was helped by their later responses. But whether the property was so owned or not, does not assist. Even if there was a disadvantage, should the Court take into account that laws favour some and not others? I do not have the benefit of expert evidence as to laws in Country C nor did I have detailed submissions from either side as to what (if any) impact such ownership would have if the litigation was run here. In my view, it is legitimate to take into account that a party would want the laws of the country that best suits them to be applied but as I have no idea here how significant the distinction is, I propose only to make it one of the factors earlier mentioned to be taken into account as the litigant’s choice of forum.
Whilst the wife complained about lack of discovery by the husband, he too complained about that of the wife. He said that the wife had property given to her by her parents and that has not been disclosed. Having regard to the outcome of this case, I do not consider that I should do more than note that discovery is incomplete and disputed.
Senior Counsel for the husband submitted that in respect of the approach to the determination, the Court had to consider the following:
·The parties’ assets consist of property in Country A and there are superannuation and other accounts in Country C;
·There are no assets in Australia;
·The husband is employed in Country C earning significantly less than what he did in Australia;
·Any orders of the Australian Court will be recognised in Country C.
Mr Kirkham submitted that the test to applied came from the authorities that I earlier set out. He submitted:
·Neither party had any connection with Australia save as to the husband’s work visa arrangement which had now been cancelled;
·The current expenses could not be sustained and the husband could not afford to maintain the children in Australia;
·The family was being funded out of capital because in Australia, it was not entitled to assistance as a result of the immigration status which also precluded the wife earning a living;
·It would be oppressive to conduct proceedings in Australia where the evidence was overseas;
·The wife and the children did not intend (nor did they have the ability) to remain in Australia after 2016 but may be subject to deportation anyway;
·The husband is resident in Country C where proceedings had been commenced;
·All financial matters should be heard together because of their interrelationship;
·Australian Law will not be able to deal with the husband’s superannuation entitlements which exceed US $1.2 million;
·The property and financial matters here are only at a preliminary stage;
·The extant interim financial orders are being complied with by the husband.
Mr Dixon on behalf of the wife submitted the following:
·Neither party had family in the area where the husband had sought to live in Country C and was now litigating;
·The children were feeling anxious and distressed about the uncertainty. The expert psychologist had reported to the Court that the husband failed to consider the views and needs of the children when he made the decision to take Country C position. A move for them to Country C would cause turmoil and disruption;
·If the property was substantially in Country A, why was Country C the appropriate forum?;
·Notwithstanding what the husband said, the adult child had commenced university and desired to remain in Australia;
·The husband travelled to Country D up to 6 times per year and would continue to do so from Country C and hence could easily come to Australia;
·The husband has only now filed his application in Country C;
·Lawyers had already been engaged by the husband in Australia and he had the financial means to afford that;
·The wife had no financial means apart from the husband’s payments;
·Evidence of the husband’s parents if needed could be organised in Australia electronically;
It was therefore submitted by Mr Dixon that this was clearly the appropriate forum because of the children.
Mr Dixon referred me to the Full Court’s decision in Pascal & Oxley [2013] FamCAFC 47 where the Court said that the best interests test applied rather than the forum non-conveniens test. That is clearly correct but there is no parenting issue here in direct dispute. The wife’s application is extant but the husband has not been pressed (other than by Senior Counsel on his feet) to indicate his position. It seems to me that having regard to what the family consultant expert said along with the ages of the children, and the husband’s own concession that his relationship is currently not good with the children, there is unlikely to be any parenting dispute in which the Court is required to make any determination. Thus, as the Full Court said in the appeal in this very case, there is no reason why the parenting and financial matters could not be separated.
When I deal with the financial dispute as a discrete matter, the forum non-conveniens test is the applicable test.
There is no doubt that the children would be adversely affected by having to move out of Australia but that is a matter beyond the Court’s control. As I have found, the evidence supports the conclusion that at least in the foreseeable future, the family’s stay in Australia is very much at whim of the government and there will be a need for constant litigation.
The stay proposed by the husband does not require the wife to leave Australia. There is no evidence as to what requirements there would be for the personal (as distinct from electronic) attendance by the wife for the specific purposes of Country C litigation over property. Largely, I have presumed that could be done remotely initially.
Costs associated with any such involvement remotely or otherwise whilst difficult with the wife’s current financial limitation, could be a matter taken up with either court if necessary by some form of interim arrangement. No evidence indicates that could be done in Country C but nor was it contemplated in Australia.
Notwithstanding the wife has concerns about the disadvantage of Country C Law, nothing indicates that she would be advantaged in Australia. Both Courts have jurisdiction and I accept the unchallenged submission of the husband that orders of this Court at an interim level would be recognised in Country C.
Both jurisdictions apparently have dispute resolution mechanisms and it was not suggested by the wife that Country C Courts did not have power to determine child support and other financial issues. Thus it seems that both jurisdictions can provide a complete resolution of the controversies of the parties about financial matters.
The proceedings in Australia are very much at their infant stage and I see no significant disadvantage to either party if the proceedings were heard in a new jurisdiction.
It is the connection with the jurisdiction that is the most difficult here. The wife wants to stay but may not be able to and then relies upon the need for stability for the children as her basis. In my view, the children are a distracting issue for the reason I set out earlier. As I understand the wife’s position, if she had to leave Australia, she would return to Country C. The husband has settled employment in Country C whilst the wife has no security of tenure in Australia. The connection is therefore stronger in Country C.
Although as I have indicated there are relief issues in Country C proceedings, I do not consider those to be favouring one party or the other.
There is clearly a disadvantage for the wife in relation to income but absent some indication that the husband’s financial position is not as he portrayed it, and I have no evidence other than suspicion of that, the parties are largely in similar positions. I do not know what the capital position would be such that the wife’s impecuniosity (if that is what it is) could not be rectified by some interim order from Country C Court.
For the reasons also given, there are no language barriers here nor is there a problem of access to lawyers. Both parties have shown that.
Nothing I heard indicated the requirement of the presence of the wife physically in Country C was necessary. The husband was said to be able to travel to Country D but that was to be for work. I do not know what arrangements could be made for extensions of time and travel for the purposes of attending court and lawyer obligations here. To the extent that the wife was required to go to Country C at particular times, that problem could be ameliorated as I have said. Thus, both parties are on a similar footing although I accept it is not necessarily equal.
The factors that support the husband’s argument relate to the absence of property here, Country C background including that being the citizenship of both parties and his employment which the family relies upon. In addition, Australian Law will not be able to deal with the husband’s superannuation entitlements which exceed US $1.2 million.
I consider those convincing.
The onus of proof lies with the husband and the question must be decided on balancing the competing proposals. In my view, the balance favours the husband. It would be unfairly burdensome bearing in mind what I have just said, for the proceedings to be continued here. That is particularly so where there is a significant risk that the family might have to leave Australia. That would then cause serious and unjustified angst for both parties which would require starting all over again elsewhere. For those reasons, I consider the stay should be granted.
I certify that the preceding Fifty Four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 April 2015.
Associate:
Date: 2 April 2015
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