Doon & Jing
[2022] FedCFamC1F 665
Federal Circuit and Family Court of Australia
(DIVISION 1)
Doon & Jing [2022] FedCFamC1F 665
File number(s): BRC 16456 of 2020 Judgment of: HOWARD J Date of judgment: 2 September 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR A STAY OF PROCEEDINGS – Conflict of laws – forum non conveniens – where both parties were born in Country B and reside in Australia – where there are ongoing property proceedings in Country B – where the husband seeks a stay of property proceedings in Australia – where the Court is not persuaded that Australia is a clearly inappropriate forum – where the stay application is dismissed. Legislation: Family Law Act 1975 (Cth) ss. 45, 79
Foreign Judgements Act 1991 (Cth)
Cases cited: British South Africa Co v Companhia de Mocambique [1893] AC 602
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Henry v Henry (1996) 185 CLR 571
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460
Voth vManildra Flour Mills Pty Ltd (1990) 171 CLR 538
Whung & Whung [2011] FamCA 137
Division: Division 1 First Instance Number of paragraphs: 67 Date of hearing: 30 August 2022 Place: Brisbane Counsel for the Applicant: Ms McLennan Solicitor for the Applicant: Dante Chen Lawyers Counsel for the Respondent: Mr Gordon Solicitor for the Respondent: McInnes Wilson Lawyers ORDERS
BRC 16456 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DOON
Applicant
AND: MS JING
Respondent
order made by:
HOWARD J
DATE OF ORDER:
2 September 2022
THE COURT ORDERS:
1.That the husband’s Application in a Proceeding filed on 25 March 2022 be dismissed.
2.That this matter be listed for a Case Management Hearing before the Honourable Justice Howard at 10:00am on 13 October 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Doon & Jing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:
Background
The applicant husband is Mr Doon. He was born in Country B in 1986.
The respondent wife is Ms Jing. The wife was born in Country B in 1991.
The husband is an Australian citizen and he is resident in Australia. The wife is living in Australia pursuant to a visa. The wife remains a citizen of Country B.
The parties met in Country C in 2016. In 2017, the parties were married in Queensland. In mid-2017, the parties’ marriage was registered in Country B.
In late 2018, the wife gave birth to twins - a son named X and a daughter named Y. The children were born in Country B but they have dual citizenship (Australian and Country B).
The family moved to Australia in early 2019.
The paternal grandparents had already relocated to Brisbane in 2002 (according to the husband’s chronology).
The husband states that the parties separated (under one roof) on 15 February 2020. The wife maintains that separation occurred in October 2020.
On 29 November 2020, the husband filed an Application in the Federal Circuit Court of Australia (as it was then known) seeking parenting orders.
In early 2021, the wife commenced parenting and divorce proceedings in Country B.
On 15 February 2021, the wife filed a Response to the husband’s parenting Application in Australia. The wife, in her Response, sought a division of property pursuant to s 79 of the Family Law Act 1975 (Cth).
On 14 April 2021, the husband filed a Reply in Australia to the wife’s Response. In that Reply, the husband sought orders relating to property.
On 14 June 2021, the husband filed an Application in a Proceeding in Australia seeking that the wife withdraw her parenting and divorce proceedings in Country B. On 26 July 2021, the wife filed an undertaking in Australia to the effect that she would discontinue the parenting and divorce proceedings in Country B.
In mid-2021, the husband then filed an Application for property proceedings in Country B.
In 2021, the husband also filed an Application for divorce in Australia and a divorce order was made in late 2021 (noting that the husband was the applicant).
There is a current interim parenting order in place. That order was made by her Honour Judge Purdon Sully on 16 February 2021. By the terms of that order the children live with the paternal grandmother. The Court was informed on 30 August 2022 that the children are spending four nights per fortnight with the mother. This may well be pursuant to an agreement reached between the parties to the parenting proceedings. The parenting proceedings remain on foot. The parenting and property proceedings were transferred to this Court by order of Chief Justice Alstergren on 4 April 2022. The parties agree that the parenting case should remain in Australia.
The current dispute relates to the property proceedings on foot in Australia. The husband seeks an order to have the property proceedings in Australia stayed. That Application was filed by the husband on 25 March 2022.
The wife opposes the husband's Application for a stay of the Australian proceedings.
I note that the paternal grandmother is the second respondent – but apparently only in relation to the parenting case.
FORUM NON CONVENIENS
The doctrine of forum non conveniens forms part of the subject known as private international law or conflict of laws. Both parties in this case are resident in Australia and the children, of course, also live in Australia. The parties have property in Australia and they also have property in Country B. At present, it is unclear to what extent the parties do have property in Australia and in Country B. The Federal Circuit and Family Court of Australia (Division 1) (formerly known as the Family Court of Australia) has jurisdiction under the Family Law Act to deal with the financial proceedings currently on foot. The question is – applying the doctrine of forum non conveniens – should the property proceedings in Australia be stayed as requested by the husband?
The High Court in Voth vManildra Flour Mills Pty Ltd (1990) 171 CLR 538 ("Voth") adopted the "clearly inappropriate forum" test. The majority in Voth (comprising Mason CJ, Brennan, Deane, Dawson and Gaudron JJ (Toohey J dissenting on this point)) adopted the test formulated by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 ("Oceanic Sun").
At pages 247 and 248 of Oceanic Sun, Deane J stated:
“If the plaintiff[1] is not acting bona fide or in pursuit of a legitimate advantage in pursuing the proceedings in the legal system of this country, that will, of course, make it much easier for a continuation of the proceedings to be characterized as vexatious or oppressive, since there will be little if anything to put into the balance against the inconvenience which would be sustained by the defendant. On that approach, "oppressive" should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while "vexatious" should be understood as meaning productive of serious and unjustified trouble and harassment.
In the light of the foregoing and at the cost of some repetition, 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[2] 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. The reason that is so is 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 (cf Spiliada Maritime Corp v Cansulex), 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 proceedings does not necessarily mean that the local court is a clearly inappropriate one.”
(Emphasis added)
[1] i.e. the Respondent to the stay application.
[2] i.e. the Applicant to the stay application.
In Voth at page 564, the majority stated:
“…the principles to be applied in applications to set aside service and in applications for a stay on inappropriate forum grounds are those stated by Deane J. in Oceanic Sun.”
In Voth, the High Court went on to state that the principles stated by Deane J in Oceanic Sun should be applied by reference to the discussion of Lord Goff in Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460 ("Spiliada"). Lord Goff spoke of the "relevant connecting factors" and "a legitimate personal or juridical advantage". [3]
[3] Referred to in Voth at page 565.
I am particularly attracted by the following passage contained at page 565 in Voth. At that page the High Court stated, inter alia:
“…we respectfully agree with the substance of the advice contained in the speech of Lord Templeman in Spiliada (at 465), 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 (ie “clearly inappropriate forum”) grounds.”
In Henry v Henry (1996) 185 CLR 571 (“Henry”) the High Court held that that the clearly inappropriate forum test (from Voth and Deane J in Oceanic Sun) applied in relation to matrimonial proceedings in Australia concerning divorce and property (financial matters).
As to the actual power to grant a stay – I note that in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at page 391 the High Court[4] stated:
“It is clear from the rationale for the exercise of the power to stay proceedings and, also, from the words “oppressive”, “vexatious” and “abuse of process” in Voth, in Oceanic Sun and in the earlier cases considered in Oceanic Sun, including St Pierre v South American Stores (Gath & Chaves) Ltd that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice.”
[4] Per Dawson, Toohey, Gaudron, McHugh, Gummuw and Kirby JJ.
It is to be noted that, in any event, s 45 of the Family Law Act grants this Court the power to stay proceedings in appropriate cases.
It is also helpful to note the 10th Edition of Nygh’s Conflict of Laws in Australia, where the author stated (at paragraph 8.29) that:
“Despite the High Court’s apparent ambivalence about whether the process of assessment should properly be described as ‘balancing’ the factors, 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 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. For example, in Virgtel Ltd v Zabusky, de Jersey CJ of the Supreme Court of Queensland listed factors relied on by the defendants indicating that a stay should be granted and factors relied on by the plaintiffs indicating that a stay should be refused, before simply observing: ‘There is manifest convenience in proceeding in this jurisdiction, and it could not sensibly be suggested doing so would be oppressive or vexatious’.[5]”
(Emphasis Added)
[5] I note that a similar paragraph from the 8th Edition of Nygh’s Conflict of Laws in Australia was cited by O’Ryan J in Navarro v Jurado (2010) 247 FLR 374.
In Spiliada (per Lord Goff at pages 477-478 and 482-484) and in Voth (at page 565) and in numerous cases in this Court[6] – the courts have provided a non-exhaustive list of matters for consideration in this type of application. I have had regard to those lists and, where relevant, I will be considering those matters in this application. It is not necessary to repeat such a list here.
[6] Including Chen v Tan [2012] FamCA 225 per Kent J at [38] and Hong v Cao [2018] FamCA 40 per Hogan J at [88(j)].
matters for consideration
In the present case, both parties live in Australia. The children of the parties live in Australia. The parenting proceedings (by agreement between the parties) will remain on foot in this Court. The paternal grandparents live in Australia.
As to the property of the parties, the husband owns a business named D Company. It is based in Brisbane and the husband has (at least at one stage) estimated its value as A$85,000. That figure was contained in a document entitled Joint Balance Sheet filed with the Court on 21 March 2022 and referred to in submissions by Ms McLennan, counsel on behalf of the husband. It is apparently a hospitality business in Suburb E, Brisbane. I should note that the business has not yet been valued professionally – but I do note the husband's estimate of its value.
There is an apartment situated in City F. The estimated value (put forward by the husband) is A$1,350,000. The property was previously owned (as I understand the evidence) by the husband and the wife. Following a Court hearing in Country B, the Country B Court determined that the property should be transferred from the husband and the wife to the paternal grandparents. The wife has appealed that decision and this Court has been informed that the appeal will be heard in approximately October 2022. In respect of the property proceedings currently on foot in Country B, the estimate is that those proceedings will be finalised in late 2022.
Both parties are represented by lawyers in Country B and both parties are represented by lawyers in Australia.
There is an affidavit by a deponent named Mr G filed 19 August 2022. Mr G is the husband’s lawyer in Country B. He has stated at paragraph 8 of his affidavit (and referring to annexure G5 of his affidavit):
“8.On or about 16 September 2021, the Respondent's acting lawyer, [Mr W] and I were instructed by our respective clients to agree by entering into a mediation transcript (I noted that this is similar to an Australian "consent order") to the effect that the parties' property regime have been effectively changed from the statutory regime to the separation of property regime. In other words, the separation of property regime will be applicable to the parties' respective property from the date 16 September 2021 (by the consent order) and the statutory regime remains applicable to the parties' property acquired in marriage. Annexed hereto and marked with the letters [G5] is a copy of the said mediation transcript in [Country B language] dated 16 September 2021 with its English translation by a NATTI 3 translator.”
I am not sure what to make of the evidence of Mr G in this regard. It certainly indicates that both the husband and the wife have, at times, taken steps to pursue property proceedings in Country B – as they have also done in Australia. The husband submits that the wife commenced the property proceedings in Country B. That document indicates (G5) that the husband was the applicant in those proceedings (the property proceedings) in Country B. The wife maintains that the husband did commence the property proceedings in Country B. I also note paragraph 6 of the husband's affidavit filed 25 March 2022 where he actually states that he commenced property proceedings in Country B. This remains a live issue and one which I am not in a position to finally determine at this point in the proceedings.
From the evidence of Mr G, it appears to be the case that there has been some disclosure of documents and there have been certain documents subpoenaed by the Court in Country B.
The husband maintains that the City F apartment does not form part of the property pool. He maintains it is owned by the paternal grandparents. I must say the submission made on 30 August 2022 was somewhat contradictory. Initially, the Court was told (by the husband) that the City F property was owned by the husband and his parents. Then, the Court was handed a draft schedule of assets and liabilities noting that the ownership of the City F apartment was in the names of the paternal grandparents. In any event, that is not an issue that I can determine at this point in time. It will be helpful if I reproduce here the draft schedule of assets and liabilities handed to the Court by counsel on behalf of the husband during the hearing on 30 August 2022. That document states that:
DRAFT SCHEDULE OF ASSETS AND LIABILITES
No. Description Title W’s Value H’s Value ASSETS COUNTRY B 1. Real Property City F PGP 1,350,000.00 2. Household Contents Country B H & W 5,000.00 3. Luxury Bags, watch Jewellery W Est. in excess of 100,000.00 4. H Bank W 5. J Bank W 6. K Bank W 7. L Bank W 8. M Bank W 9. Country B Financial Corporation W 10. Country B Life Insurance Association W 11. K Bank Trust Property Acc W 12. L Bank Trust …12 W 145,000AUD 13. L Bank H Est. 500.00 14. O Bank (Country U) H Est 500.00 15. P Bank (Country U) H Est 800.00 16. 17. AUSTRALIAN ASSETS 18. D Company H No value 19. Commonwealth Bank H 2,000.00 20. R Bank H 50.00 21. Motor Vehicle 1 H 5,000.00 22. Superannuation Fund 1 H 5,000.00 23. Q Statue W 15,000.00
As I have already stated, the husband does not concede that the City F property forms part of the property pool – but has included the same in the pool because the wife (in the Country B Court) has appealed the decision in Country B removing her as one of the owners. To be clear, then, on the husband's case he excludes the City F property from the pool and hence the balance of the property (so far as it can be ascertained at this time) which he says is held in Country B totals approximately A$250,000.”
That total includes Item 12 from the table in respect of the L Bank Trust account number ending …12 contains a figure of A$145,000 as owned by the wife. However, I note that this apparently was the amount of money noted in a bank statement from earlier this year and there is no up-to-date information in relation to that money. The total of approximately A$250,000 also includes the husband’s estimate of $100,000 worth of handbags and jewellery – which, I understand, he maintains the wife has in Country B.
According to the husband, the assets situated in Australia total $27,050. In the draft schedule of assets and liabilities the words "no value" have been written next to the D Company business. However, as I already noted, the submission does appear to be that the husband estimates its value as A$85,000 – but the husband makes the point that there is no formal valuation of the business at this point in time.
Glaringly absent from the pool as proposed by the husband is any reference to a property situated at Suburb S in Brisbane that was formerly owned by the husband. The property was situated at T Street, Suburb S. In late 2017 – after the parties were married – the husband purchased that property for the sum of $1,541,000. The wife’s evidence is that the husband paid cash for the property and there was no mortgage. Between early 2019 and early 2020, the husband and the wife, along with the two children, lived in that Suburb S property.
In late 2020 (without informing the wife) the husband sold the Suburb S property. This was many months after the final separation – according to the husband. The property sold for $1,660,000. The husband has not provided any evidence as to the net proceeds of sale. This is a significant factor to be taken into account in this case. That evidence appears in the wife’s affidavit filed on 22 June 2022 (“the wife’s affidavit”). In the application before the Court, the husband read and relied upon no fewer than four affidavits sworn by him (and one affidavit from Mr G, the husband’s lawyer in Country B). None of the affidavits relied upon by the husband made any reference to the Suburb S property. Certainly, my attention was not drawn to any evidence provided by the husband in relation to the Suburb S property or the net sale proceeds of the Suburb S property. Nor was there any clear submission from the husband as to what approach this Court would or should take in relation to the Suburb S property.
Further, there was no explanation by the husband to the evidence contained in paragraph 31 of the wife’s affidavit where she stated that:
“31.In 2018 [Mr Doon] gifted me [Motor Vehicle 2] in Brisbane. I recall it was worth approximately $700,000 AUD. I recall in November 2019 [Mr Doon] wanted me to sell the [Motor Vehicle 2] which I did for approximately $590,000 AUD. I do not know how [Mr Doon] funded the purchase of the [Motor Vehicle 2] or what he did with the sale proceeds.”
Mr Gordon, counsel on behalf of the wife, made the point that, on the current evidence before the Court, the wife has an argument in favour of an add back of property – in relation to the net sale proceeds of the Suburb S property and in relation to the net sale proceeds of Motor Vehicle 2. Such net sale proceeds (on the current evidence) could be in the vicinity of $2,000,000. That evidence remains uncontested. As noted, the wife’s affidavit was filed on 22 June 2022. That was more than two months prior to the hearing on 30 August 2022. There was plenty of time for the husband to file an affidavit responding to this crucial evidence.
Notwithstanding that Mr G has provided evidence on behalf of the husband concerning some aspects of the law in Country B – there is no evidence from Mr G in relation to whether or not the appropriate Court in Country B could or would take into account what we would normally describe in this country as “add backs” into the property pool. This is a significant factor in the Court's consideration as to whether or not Australia is a clearly inappropriate forum.
The point was made on behalf of the husband that only the Country B Court will be able to uncover the details concerning the wife’s bank accounts noted in the schedule of assets and liabilities. I do not agree with that submission. That issue can be adequately dealt with here in this jurisdiction. The fact that those bank accounts have been listed in the schedule (admittedly by the husband) clearly places an onus upon the wife (in these Australian proceedings) to make full and complete disclosure. In the absence of such disclosure, this Court will, of course, have the power to make appropriate findings against the wife and will not hesitate, if necessary, to do so.
It was also submitted on behalf of the husband that the other main reason that Australia is a clearly inappropriate forum is "because of the paternal grandmother’s property” (presumably the reference is to the City F apartment) and because the Court in Country B has made a decision about that property. This submission can be seen from line 45 on page 43 of the transcript of 30 August 2022. I agree with the submission in reply made by Mr Gordon to this point. It is the husband in these current proceedings seeking a stay order. This application relates to the s 79 proceedings between the husband and the wife. It does not relate to the paternal grandparents. Any oppression suffered by the paternal grandmother (or, for that matter, the paternal grandparents) would be, it seems to me, irrelevant. I would add here that I certainly do not accept that the paternal grandparents would suffer oppression in any case.
I have taken into account the fact that Mr G’s estimate is that the property proceedings in Country B will be finalised in late 2022. It was said on behalf of the husband that disclosure is more advanced in Country B than it is in Australia. I note the point made by Mr Gordon (a good one in my view) that the husband filed an Application for a stay of the proceedings in March 2022 and, it seems, not much has happened since that time. I have already made some comments concerning the wife’s disclosure of bank account details from Country B. I do not think that there is any great merit in the argument put forward on behalf of the husband concerning how advanced disclosure might or might not be. In fact it was said on behalf of the husband that the wife has not complied with her disclosure obligations in Australia – but that the Court in Country B has subpoenaed documents and hence the Court in Country B should be preferred. Again, I would state that the test to be applied is the “clearly inappropriate forum" test. It is not the "more appropriate forum" test. That is the import of the cases from Voth onwards. As to the date of the possible final hearing, this Court is told that the Country B Court will finalise the matter by late 2022. To some extent though, it must be said, that the situation in Country B is still somewhat up in the air noting that there is an appeal on foot concerning ownership of the City F property. In any event – because this matter is now in my docket, I anticipate being able to give it a final hearing in the first quarter of 2023. Not much turns on the point relating to which country's legal system can finalise the matter earlier. A more important point (it seems to me) is whether or not the legal system in either country is equipped to finally deal with all outstanding issues. As the evidence currently stands – it is only in Australia that we can be certain that the significant issue relating to potential add backs can be addressed in the final property proceedings. There is no evidence as to the state of the law in Country B concerning that issue.
The husband's business (located in Brisbane) can be valued quite promptly I would have thought. The wife’s business (being online based as it is) can also be valued quite promptly – and certainly can be done from Australia.
None of the points made on behalf of the husband (summarised from page 43 line 45 over to page 44 line 5 of the transcript of 30 August 2022) could be said to be a significant factor pointing towards a conclusion that Australia is a clearly inappropriate forum.
I make the point again that both the husband and the wife commenced property proceedings in Australia four – six months prior to any property proceedings being commenced in Country B.
It seems to be agreed between the parties that in the event that the property proceedings proceeded in Country B and not in Australia – any order made by the Country B Court is likely to be enforced in Australia pursuant to the Foreign Judgements Act 1991 (Cth).
The evidence of Mr G concerning the recognition and enforcement of foreign judgments in Country B begins at paragraph 26 of his affidavit:
26. Pursuant to Article 402 of the [Country B Code] of Civil Procedure:-
“A final and binding judgment rendered by a foreign court shall be recognized, except in case of any of the following circumstances:
1. Where the foreign court lacks jurisdiction pursuant to the [Country B] laws;
2. Where a default judgment is rendered against the losing defendant, except in the case where the notice or summons of the initiation of action had been legally served in a reasonable time in the foreign country or had been served through judicial assistance provided under the [Country B] laws;
3. Where the performance ordered by such judgment or its litigation procedure is contrary to [Country B] public policy or morals;
4. Where there exists no mutual recognition between the foreign country and [Country B].
The provision of the preceding paragraph shall apply mutatis mutandis to a final and binding ruling rendered by a foreign court.
27.In other words, subject to certain circumstances as prescribed in sub-clauses 1 to 4 of Article 402 of the [Country B Code] of Civil Procedure, a final and binding judgment rendered by a foreign court shall be recognized by the [Country B] courts and that judgment would become enforceable after the [Country B] courts' recognition.
28.Also, to my best knowledge, I note that currently, the enforcement of foreign judgments in Australia is governed by both statutory regimes and common law principles. I am not familiar with the common law principles. With respect to statutory regimes, the Foreign Judgments Act 1991 and the Foreign Judgments Regulations 1992 provide for the procedure and scope of the judgments that can be enforceable under the statutory regime.
29.Pursuant to Item 25AB in the Schedule Superior Courts of the Foreign Judgments Regulations 1992, the judgment of Supreme Court, High Courts and District Courts given by [Country B] jurisdiction must be enforced under the Foreign Judgments Act 1991 (Cth) if they fall within the scope of that Act.
30.Despite the fact that Australia and [Country B] jurisdiction both provide legal mechanism to recognise and enforce a foreign judgement, I consider that even if a judgment/an order in relation to property settlement has been obtained in Australia, one party would have to bring up its application to the [Country B] court and persuade the court to recognize the judgment/order. [Country B] as a country has the territorial right over its citizens to make a judgment for its citizens. This territorial right is not taken lightly, and in my experience the party would find it difficult if not possible to convince the [Country B] court to "recognize" the Australian judgment.
In paragraph 27 of the above quotation, it can be seen that (subject to certain circumstances which were not highlighted by Mr G as being applicable) – Mr G says that a final and binding judgment rendered by a foreign court shall be recognised by the Country B Court and – further, that such a judgment would become enforceable after the Country B Court’s recognition. Mr G goes on in paragraph 30 to qualify that earlier evidence by stating that even if a judgment in a property settlement case has been obtained in Australia – he considered that one party would need to bring this application to the Country B Court and persuade the Court to recognise the judgment/order. He goes on to conclude that he considers it would be difficult, if not "possible" (I presume he means impossible) to convince the Country B Court to recognise the Australian judgment. This evidence is, on its face, somewhat contradictory. In any event, I note that the husband's position is that the paternal grandparents own the City F property. Presumably, in these s 79 property proceedings, the husband is not asking for any order that he would then be seeking to enforce in Country B relating to the City F property. Perhaps (I infer) the husband is alluding to the possibility of an order made in the s 79 proceedings that might require the wife to transfer to him cash from bank accounts situated in Country B. As noted later in these reasons for judgment – this Court can make an order requiring the wife to transfer cash to the husband – no matter where that cash is situated in the world. Such an order is an in personam order. The litigants have the benefit of the contempt powers available to this Court – and the ability to bring proceedings for contravention – both of which can lead (in certain circumstances) to imprisonment. I will return to that aspect later in these reasons. In any event – given the glaring lack of evidence from the husband concerning the net sale proceeds of the Suburb S property and the net sale proceeds of Motor Vehicle 2 – it is far from clear (at this point in time) where the major assets of these parties are actually situated. The onus is on the husband to show that Australia is a clearly inappropriate forum. I would have surely expected there to be some detailed evidence from the husband concerning the Suburb S property and Motor Vehicle 2 – noting that the wife led that evidence in her affidavit filed on 22 June 2022.
I do not consider that the husband applied promptly for a stay of these proceedings. The wife (in her Response document) sought property orders on 15 February 2021. In the chronology handed to the Court (as an aide-mémoire and counted by the Court as part of the husband's submissions) there is no reference to the fact that the husband filed a Reply to the wife’s Response and in that Reply the husband sought property orders. That Reply was filed on 14 April 2021. There is no explanation as to why that significant point was omitted from the chronology. The husband particularised the final orders sought in relation to property in that Reply document, including seeking an order that the apartment in City F be transferred into the names of the paternal grandparents. In the alternative, the husband sought that there be an accounting of the assets and liabilities of the husband and the wife and that there be a division of property to the extent of 70% in his favour and 30% to wife. Having sought property orders in the Reply filed on 14 April 2021 – almost another year elapsed before the husband filed his Application for a stay (25 March 2022). My attention was not drawn to any evidence to explain the delay in applying for the stay. On the other hand, there was no submission on behalf of the wife that any specific prejudice has been suffered by her in respect of the late application for a stay.
I note the submission by Mr Gordon on behalf of the wife referring the Court to Whung & Whung [2011] FamCA 137. When considering the Mozambique rule[7] O'Reilly J referred to an article by Dr Anthony Dickey QC entitled "Orders In Respect of Foreign Property Under Section 79". Dr Dickey’s article was written to squarely address the issue that an objection could be taken to an order under s 79 being made in respect of "foreign property as this offends the common law jurisdictional bar on domestic courts adjudicating upon rights to foreign land as laid down in British South Africa Co v Companhia de Mocambique [1893] AC 602”. In that article, Dr Dickey notes:
“Because property proceedings under s 79 are in personam, and because the power of the Court to alter property interests under this section is otherwise unrestricted as to location, at the very least an order can always be made requiring one of the parties to deal with property in a particular way – for example, transfer it to the other party – regardless of where in the world the property is situated. In this way, an order under s 79 can certainly be directed against property abroad.”
[7] British South Africa Co v Companhia de Mocambique [1893] AC 602
I note that the fact that property proceedings may be in personam does not necessarily mean that the ensuing orders are in personam. Dr Dickey notes by way of example:
“…proceedings for dissolution of marriage are in personam, though an order dissolving the marriage is in rem. Orders in rem are orders which concern status. They are binding against the whole world. Orders which are in personam are orders which are simply binding as between the parties. A property order under section 79 is binding solely between the parties to the proceedings, and not against third parties."
If it were eventually proved that there was any money in the bank accounts apparently owned by the wife and based in Country B – and if it were proved that a just and equitable order made by this Court required the wife to transfer some of those funds to the husband – that would not pose a problem. This Court could make an order requiring the wife to transfer cash to the husband from a bank account in Country B. The s 79 proceedings and an order along those lines are both in personam.
At one stage during the proceedings on 30 August 2022, the Court was referred (by counsel on behalf of the husband) to annexure G9 of Mr G’s affidavit. That is apparently a translation of a screenshot noting a company named V Pty Ltd. The person in charge is stated as the wife and the registered address is an address in City F. The total capital seems to be 500,000 Country B currency. The Country B currency appears to be the basic unit of the currency. 500,000 Country B currency equates to over A$20,000. I am uncertain as to the point being made on behalf of the husband concerning the company – except, I suppose, that the company’s registered office is in City F.
I've had regard to the evidence relating to apparent insurance policies owned by the wife in Country B. It is hardly compelling evidence. A s 79 order made in Australia could, if necessary, easily cover any insurance policies that may have been cashed in (by the wife) in Country B. It remains unclear as to what precisely has occurred in that regard.
Both parties have already spent in excess of A$50,000 in these proceedings. I am uncertain whether that relates to parenting and property. I was not taken to any particular submission or evidence about it – beyond the submission made by Mr Gordon drawing the Court's attention to certain cost notices. It was noted on behalf of the husband that the likely costs in Country B were to be less than A$10,000 each. Again, that is not a compelling argument – in the absence of evidence to confirm that the entirety of the dispute between the parties could be litigated in Country B. I am referring here again to the question of the “add backs” highlighted on behalf the wife.
I reject the submission made on behalf of the husband that the evidence discloses that the whole of the property can be dealt with by proceedings in Country B. There is no evidence from Mr G in relation to the very significant potential add backs referred to in the evidence of the wife. There is an absence of evidence concerning how the Country B Court would treat the add backs argued for on behalf of the wife (possibly comprising as much as A$2 million). What is known is that in Australia a judgment can be delivered that will be able to finalise all outstanding matters and issues involved in the parties’ controversy concerning matrimonial property. Certainly, that is the situation having regard to the current state of the evidence and the submissions made on behalf of the parties.
To the extent that there were any submissions made on behalf of the applicant that a failure to grant a stay would be oppressive or vexatious for the husband – I reject those submissions. It is helpful to refer back to the actual wording used by Deane J in Oceanic Sun (at 247) that the word "oppressive" should be understood as meaning – "seriously and unfairly burdensome, prejudicial or damaging". Deane J went on to say that the word "vexatious" - “should be understood as meaning productive of serious and unjustified trouble and harassment."
I have examined all of the material which is in evidence in this application. I have taken into account the written (comprising some written schedules handed up on behalf of the husband) and the oral submissions. I am of the view that these property proceedings in Division 1 of the Federal Circuit and Family Court of Australia should not be stayed on forum non conveniens grounds. The applicant has not shown that the continuation of the property proceedings in Australia would be oppressive or vexatious in the sense that those words were used by Deane J in Oceanic Sun. It cannot be said that the applicant has shown that this Court in Australia is a clearly inappropriate forum. I want to point out that I have not referred to each and every submission made by the parties. I have not referred to each and every piece of evidence referred to by the parties. I am well aware of all of the facts and all of the submissions made. The case was heard in Court on Tuesday, 30 August 2022. This decision is being handed down today, Friday, 2 September 2022. I am well aware of all the arguments both ways. I do not consider that there are enough factors to lead this Court to a conclusion that this forum is clearly inappropriate (to use the wording contained in Nygh’s Conflict of Laws 10th Edition). Indeed, there are significant factors pointing to the conclusion in this case that this Court is an appropriate forum. This is particularly so because of the issue of the add backs pressed on behalf the wife totalling as they do – potentially A$2,000,000.
I do not consider that it can sensibly be suggested[8] that proceeding in this jurisdiction would be oppressive or vexatious (having regard to the evidence and the arguments put forward on behalf of the parties).
[8] To borrow an apt phrase from de Jersey CJ in Virgtel v Zabuski [2006] Qd. R. 81.
Accordingly, the application for a stay is dismissed and this property case will be listed for Case Management Hearing before me at 10:00am on 13 October 2022.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 2 September 2022
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