DESPREZ & DESPREZ - [2015] FamCA 232

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
Pascal & Oxley [2013] FamCAFC 47
Steen and Black (2000) FLC 93-005
Voth and Manildra Flour Mills Limited (1991) 71 CLR 538

APPLICANT:

Mr Desprez

RESPONDENT:

Ms Desprez

FILE NUMBER:

MLC

3066

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DESPREZ & DESPREZ

Details

AGLC: DESPREZ & DESPREZ [2015] FamCA 232
Case: [2015] FamCA 232
Decision Date: 2 April 2015

CaseChat Overview and Summary

In this matter before Cronin J of the Family Court of Australia, the husband and wife, who were in Australia on a 457 skilled worker visa, experienced a breakdown of their marriage. Following this, the husband accepted employment in Country C, their country of origin. The wife subsequently initiated proceedings in Australia under Part VIII of the *Family Law Act 1975* (Cth). The husband objected to these proceedings, seeking a permanent stay on the grounds of *forum non conveniens*, and concurrently commenced his own property settlement proceedings in Country C. The parenting issues remained unresolved and unaffected by the husband's stay application.

The central legal issue before the court was whether Australia was the appropriate forum for the wife's property settlement proceedings, or if the proceedings should be stayed in favour of the jurisdiction of Country C, where the husband had initiated his own proceedings. The court was required to consider the principles of *forum non conveniens* and determine, on balance, which forum was more appropriate for the resolution of the property settlement dispute, given the circumstances of the parties and their connection to both Australia and Country C.

Cronin J reasoned that while the wife and children had resided in Australia, the husband's return to Country C for employment, coupled with his initiation of property proceedings there, weighed heavily in favour of that jurisdiction. The court applied the principles of *forum non conveniens*, considering factors such as the location of assets, the convenience of witnesses, and the availability of a suitable forum to deal with the matter comprehensively. On balance, the court concluded that a stay of the Australian proceedings was warranted.

Consequently, the court ordered a permanent stay of the wife's application for orders under Part VIII of the *Family Law Act 1975* (Cth). The balance of the wife's initiating application concerning parenting orders was adjourned for trial. The wife's application filed on 20 March 2015 was dismissed. The court also certified that it was reasonable to engage counsel, including two senior counsel and two junior counsel, for the proceedings.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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