Draper & Corwin
[2022] FedCFamC1F 626
Federal Circuit and Family Court of Australia
(DIVISION 1)
Draper & Corwin [2022] FedCFamC1F 626
File number(s): MLC 4817 of 2020 Judgment of: HARTNETT J Date of judgment: 24 August 2022 Catchwords: FAMILY LAW – DIVORCE – Forum – Jurisdiction – Whether Australia is the appropriate forum to determine divorce and financial proceedings – Discretionary issue – Whether the parties divorce proceedings, including any potential financial matters, should be determined in the Federal Circuit and Family Court of Australia (Division 1) or in J State, C County in the United States of America – Where it is agreed the proper jurisdiction and forum for the parenting proceeding is in Australia – Where the parties are divorced under religious law – Where the husband alleges that there are financial claims between the parties that can only be determined in J State in the United States of America – Where there are existing parenting proceedings in Australia – Australia not an inappropriate forum – Divorce to be determined in Australia.
FAMILY LAW – ENFORCEMENT – Where the Applicant sought that Order 2 of the orders of 21 April 2022 be enforced – Where the order only granted permission for the Applicant to withdraw proceedings – Where there was no order for the Respondent to do any acts or sign any documents – Application dismissed.
Legislation: Family Law Act 1975 (Cth) s 39, 121
Family Law (Child Abduction Convention) Regulations 1986
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 5.09
[J State] Domestic Relations Law ss 170, 230
Cases cited: Deslandes & Deslandes [2015] FamCA 913
Henry v Henry [1996] HCA 51
Hughes & Hughes [2014] FamCA 12
Penhall & Gibbens [2021] FedCFamC1F 6
Trbovich v Trbovich 112 A.D.3d 1381, 1382, 997 N.Y.S.2d 855, 857 (J State State Appellate Division, Fourth Department 2014)
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
Division: Division 1 First Instance Number of paragraphs: 66 Date of hearing: 15 June 2022 Place: Melbourne The Applicant: Litigant in person Counsel for the Respondent: Mr Tatarka Solicitor for the Respondent: KCL Law Counsel for the Independent Children's Lawyer: Ms Buchanan Solicitor for the Independent Children's Lawyer: V M Family Lawyers ORDERS
MLC 4817 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DRAPER
Applicant
AND: MS CORWIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARTNETT J
DATE OF ORDER:
24 August 2022
THE COURT ORDERS THAT:
1.The Amended Application in a Proceeding filed by the applicant husband on 11 May 2022 is hereby dismissed.
2.The Application for Enforcement filed by the applicant husband on 30 May 2022 is hereby dismissed.
3.Such applications arising from the breakdown of the parties’ marriage, namely any adjustment of property and financial matters and parenting arrangements for the parties’ child, X born in 2018, be heard and determined by the Federal Circuit and Family Court of Australia (Division 1).
4.Order 3 of the orders made 21 April 2022 is hereby dismissed.
5.The wife’s Application for Divorce file number… be listed in the Federal Circuit and Family Court of Australia (Division 1) on a date to be fixed following the transfer of the matter by Chief Justice Alstergren from Federal Circuit and Family Court of Australia (Division 2) to Federal Circuit and Family Court of Australia (Division 1).
6.The husband do all acts and things and file all necessary documentation to withdraw his applications for divorce and for parenting and property orders in the B Court of J State, C County.
7.The case management hearing before Justice Hartnett on 25 August 2022 at 9.30am be vacated.
8.Otherwise all extant applications, parenting and property be listed for trial management hearing before Justice Hartnett on 12 September 2022 at 9.45am.
9.All questions of the wife’s costs in relation to the Application for Enforcement filed 18 May 2022 and Amended Application in a Proceeding filed 11 May 2022 be reserved for determination in chambers.
10.By 4.00pm on 7 September 2022 the applicant husband and respondent wife file and serve any written submission in support of any application for costs arising out of or incidental to the Application for Enforcement filed by the husband on 18 May 2022 and the Amended Application in a Proceeding filed by the husband on 11 May 2022.
11.By 4.00pm on 21 September 2022 the applicant husband file and serve any written submissions in reply to any application for costs.
12.By 4.00pm on 28 September 2022 the respondent wife file and serve, if any, further written submissions in reply to the submissions of the husband.
13.Submissions as to costs should be limited to 5 pages.
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 Draper & Corwin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
Introduction
At the hearing on 15 June 2022, the issue before the Court was whether the Court is the appropriate forum to hear the parties’ divorce and extant property proceedings. Procedural matters giving some context appear below.
On 18 March 2020, the husband commenced divorce proceedings in the B Court of J State, C County. He also sought financial and parenting orders. On 26 March 2020, the wife was served with a summons titled “Action for Divorce” in relation to those proceedings.
In April 2020, the husband applied for a religious Bill of Divorce. On 30 April 2020, the wife received the Bill.
On 19 August 2020, and in the Melbourne Registry of the Court, the husband filed an Initiating Application for Final Orders seeking parenting orders in relation to the child of the marriage, X (“X”), born in 2018. X is aged nearly four years. Relevantly, in paragraphs 2 and 3 of the final orders as sought by the husband:
2.Within 28 days of the date of final orders being made, or if prevented by reason of travel restrictions and if the mother and [X] are ineligible for any exemptions therefrom, then forthwith upon the mother and [X] becoming so eligible, the mother do all acts and things to return to [J State] in the United States of America with [X].
3.Upon the mother’s return with [X] to [J State], there be such arrangements in relation to [X] as may be agreed between the parties, and failing agreement, as may be determined by a court of competent jurisdiction in [J State].
On 3 September 2020, the wife filed a Response to Final Orders seeking parenting orders and orders restraining the husband from taking any further steps in the family law proceedings in the B Court of the J State, C County, number … (“the J State Proceedings”).
On 7 September 2020, the extant final parenting orders applications of each of the parties were adjourned for final hearing. The husband did not seek Orders 2 and 3 as set out in paragraph [4] above, but rather consented to a dismissal of those orders sought. Otherwise interim orders were made, relevantly, by consent that:
3. Until the adjourned date of this matter, the father be restrained from:
3.1taking any further steps in the family law proceedings in the [B Court] of the J State [C County] number […]; and
3.2commencing or continuing any other legal proceedings in the United States of America against the mother for parenting orders or any other orders howsoever in relation to [X], including her residence in Australia or authorising or abiding same.
On 2 December 2021, the wife filed an Application for Divorce in the Federal Circuit and Family Court of Australia (Division 2).
On 19 April 2022, the wife filed an Amended Response to Final Orders seeking property orders such that each party retain their own superannuation and funds in their bank accounts, and that each party indemnify the other against all liabilities in their sole name. She otherwise sought no adjustment of property interests.
On 21 April 2022, relevantly, by way of interim order, the wife sought a determination as to forum both as to property proceedings between the parties and the divorce proceeding. The husband sought that I grant leave for the husband to withdraw any application filed by him in the B Court of the J State, C County, number … for parenting and/or custody orders in respect of X. That was an order then made by consent of the parties. Otherwise, I ordered on an interim basis that Order 3 as contained in paragraph [6] above continue in operation, and by consent for there to be a stay of the wife’s Application for Divorce.
The forum application of the wife, as contained in her Amended Response filed 21 April 2022, was adjourned to a further hearing. Orders made in respect of that hearing included:
10.The forum hearing will proceed in person, save that the Husband is permitted to attend via Microsoft Teams, as is any witness of the Husband who resides in the United States of America.
11.Any witness of the Wife who resides in the United States of America is also permitted to attend via Microsoft Teams.
The forum issue goes to the husband first filing a proceeding for a divorce, and for parenting and property orders in the J State proceedings in March 2020. The husband subsequently consented to an interim stay of that proceeding and sought to withdraw from the seeking of parenting orders in the J State proceedings. He filed proceedings for parenting orders in Melbourne, and is content to litigate in Australia the matter of what final and interim parenting orders should be made in respect of X.
The wife filed a divorce proceeding in Melbourne in December 2021. Both parties want a divorce and neither currently dispute the factual matters that would see a divorce granted in either J State or Melbourne. The husband objects to the Divorce proceeding being heard in Melbourne.
The wife is also content to litigate the making of parenting orders in Melbourne. She is also seeking that any property orders as sought by the parties be litigated in Melbourne. She claims there is no or little property of consequence at all held by either and/or both parties. There is no real property. The husband objects to litigating property matters in Melbourne but does not specify what precise property and/or debts he claims exist as between the parties.
One further issue for determination before the Court on 15 June 2022, was the husband’s Application for Enforcement filed 30 May 2022.
Material Relied upon
The husband relied upon:
(1)Amended Case Application filed 11 May 2022;
(2)Application for Enforcement filed 30 May 2022;
(3)Application for Final Orders filed 19 August 2020;
(4)his affidavit of 1 June 2022;
(5)his affidavit of 30 May 2022; and
(6)affidavit of Ms D filed 1 June 2022.
The wife relied upon:
(1)Further Amended Response to Final Orders filed 19 April 2022;
(2)Amended Response to a Case Application filed 31 May 2022;
(3)her affidavit filed 31 May 2022;
(4)her affidavit filed 19 April 2022; and
(5)affidavit of Mr E filed 31 May 2022.
The ICL did not rely on any additional material.
At the hearing on 15 June 2022, the husband initially sought to cross-examine the wife and Mr E. However, during the course of the hearing it was determined by agreement between the parties that the husband did not require to cross-examine the wife because the wife agreed that she had worked in J State for approximately four years prior to the parties’ marriage, and further agreed to the relevant background, as set out in paragraph [47] hereafter. As to Mr E, the husband did not provide Mr E with sufficient notice as to his intention to cross-examine him and accordingly, Mr E was not available to be called for that purpose. Indeed, the wife’s solicitors and counsel were not made aware of the husband’s desire to cross-examine Mr E until the early hours of the morning, being 1.03am, on the hearing date. The Court determined cross-examination would not be permitted given the husband’s failure to provide any real notice and/or reasonable notice to the witness that he was required for cross-examination. Additionally, the wife opposed leave being granted for cross-examination at an interim hearing on the basis of r 5.09(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). The Court did not discern any “exceptional” need for cross-examination to occur noting that:[1]
(2) Cross‑examination will be allowed at a hearing only in exceptional circumstances.
[1] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 5.09(2).
The wife, not surprisingly (given her objection) did not seek to cross-examine the husband or Ms D (“Ms D”), the husband’s attorney in J State.
Background
The husband was born in 1994 in J State and was aged 27 years at the hearing. The husband is employed as a paraprofessional. The husband lives in J State, in the United States of America (“USA”). He is a citizen of the USA.
The wife was born in 1994 and was aged 28 years at the hearing. The wife holds dual citizenship of the USA and of Australia. She is employed at F School and lives in a unit adjacent to her parents’ home in Suburb G in Melbourne. The wife is currently studying at K University.
The parties are religious and in 2018 had a religious marriage in J State. On 3 May 2018, the parties were married in a civil ceremony in Suburb H, J State. The parties separated in or around 22 December 2019, when the wife advised the husband that she wished to separate from him. At the time she was in Australia with X and the husband was in J State. The circumstances around the separation were not agreed between the parties.
In February 2020, the husband visited X in Melbourne.
In mid-2020, the State Central Authority, on behalf of the husband, commenced proceedings under the Family Law (Child Abduction Convention) Regulations 1986 (“Hague Convention proceedings”) seeking the return of X to the USA.
Shortly after, 2020, the wife was served with an Application under the Family Law (Child Abduction Convention) Regulations 1986 by the State Central Authority.
Some months later in 2020, Williams J granted leave for the State Central Authority to withdraw from the proceeding. This concluded the Hague Convention proceedings and preceded the husband’s final parenting orders proceedings in Melbourne (see paragraph [4] above).
On 22 December 2020, the husband filed an Application in an Appeal seeking an extension of time in which to file an Appeal in relation to the orders made 5 August 2020.
On 30 December 2020, the husband filed an Application in a Proceeding seeking a stay of the orders made 5 August 2020, 19 August 2020 and 7 September 2020 pending a decision on the appeal of orders of 5 August 2020 (see paragraph [6] above). The husband than filed two Amended Applications in a Proceeding (filed 6 January 2021). On 21 January 2021, the husband filed a further Application in a Proceeding seeking that Williams J recuse herself from the proceeding. On 27 January 2021, that application was adjourned pending the outcome of the appeal referred to in paragraph [27] above.
On 9 August 2021, the husband’s Application in an Appeal was dismissed.
On 4 October 2021, the husband’s recusal application was adjourned for final hearing on 18 March 2022 with orders made for the parties to attend a Family Dispute Resolution Conference.
On 4 October 2021, the wife received notification from her attorney in J State that the husband had taken steps in the J State Proceedings. On 7 October 2021, the wife’s solicitors sent the husband a letter reminding him of the injunction contained in orders of 7 September 2020, which it was said prevented him from taking in further steps in the J State Proceedings. Ms D, the husband’s J State attorney, responded with “the injunction has expired. Please read the document”. It is the wife’s evidence that a copy of the transcript of the hearing on 27 January 2021 was sent to the husband’s solicitors on 8 October 2021, with the wife’s solicitors claiming that the transcript made clear the injunction orders remain in full force and effect.
On 18 March 2022, Williams J ordered that the matter be adjourned to a date to be fixed before another judge.
On 30 March 2022, the husband filed an Application in a Proceeding seeking to vary the injunction made by consent by Williams J on 7 September 2020.
On 3 May 2022, the wife’s solicitors corresponded with the husband seeking that the husband advise the wife of what was in issue in relation to outstanding property matters, as asserted by the husband in the hope that the parties could progress “the matter in [the] most efficient and cost effective manner possible”.[2] It was the wife’s evidence that the husband responded with “any questions regarding the divorce and financial proceedings in the [B Court] of [J State] should be addressed to [Ms D]”.[3] The wife’s solicitor made a further request on 5 May 2022 that the husband indicate what the property issues between the parties were, noting that the forum had yet to be determined. The husband provided no details.
[2] Wife’s affidavit filed 31 May 2022, annexure TB-1.
[3] Wife’s affidavit filed 31 May 2022.
Legal principles
Pursuant to s 39(3) of the Family Law Act 1975 (Cth) (“the Act”) divorce proceedings may be instituted in the Court provided that either party is an Australia citizen; domiciled in Australia; or is ordinarily resident in Australia and has been a resident for 1 year. Pursuant to s 39(4) of the Act, the parties to a marriage may institute proceedings, including parenting and property orders proceedings, if either party is an Australia citizen; is ordinarily resident in Australia; or is present in Australia at the date of filing.
It is a fact not disputed by either party that the wife was at liberty to bring proceedings in the Court. Further, it is not disputed that the Court can adjudicate divorce, property and parenting orders applications between the parties. Likewise, the B Court in J State possesses jurisdiction in these matters.
There is also no dispute that the parties have been separated for over 12 months and the wife asserts they otherwise satisfy the legislative requirements for a divorce order to be obtained under the Family Law Act 1975 (Cth). That is also the wife’s prima facie right as an Australian citizen within the provisions of the Act to a divorce order.[4]
[4] Family Law Act 1975 (Cth) s 39(3)(a).
The issue is however, that the husband wishes that the divorce obtained by the parties emanate from the J State proceedings. Should this Court, in those circumstances, refuse to exercise its own jurisdiction.
The High Court in Henry v Henry [1996] HCA 51 held the test for determining the appropriate forum, as established in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 (“Voth”), is whether Australia is a “clearly inappropriate forum”. The onus resides with the party seeking to establish Australia as an inappropriate forum.[5] As summarised by Gill J in Penhall & Gibbens [2021] FedCFamC1F 6 the test requires:[6]
…a consideration of whether the conduct of the proceedings in Australia would be vexatious or oppressive, being seriously and unfairly burdensome, under circumstances where parties have a prima facie right to conduct proceedings where they have regularly invoked the jurisdiction (Henry & Henry (1996) 185 CLR 571 at 587 (“Henry”), citing Voth (1990) 171 CLR 538 and Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197) …
[5] Henry v Henry [1996] HCA 51, at 588 -589.
[6] Penhall & Gibbens [2021] FedCFamC1F 6.
Further as observed by the High Court in Henry:[7]
It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.
[7] Henry v Henry [1996] HCA 51, at 591.
In determining whether Australia is a “clearly inappropriate” forum, in the general circumstances of the case, taking into account the true nature and full extent of the issues involved,[8] the Court must consider the following non-exhaustive factors in respect of the competing forums:[9]
[8] Henry v Henry [1996] HCA 51, at [40].
[9] Deslandes & Deslandes [2015] FamCA 913; Henry v Henry (1996) 185 CLR 571 at 592-593; Hughes & Hughes [2014] FamCA 12.
(a)if both have jurisdiction, whether either or each court will recognise the other orders and the ease of enforcement in either country;
(b)which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy;
(c)the expense and convenience in the context of the location and availability of witnesses including the location of the parties themselves;
(d)the order in which the proceedings were instituted, the stage which they have reached, and the costs that have been incurred;
(e)the governing law of the dispute;
(f)the availability of an alternative forum to hear the matter;
(g)the connection of the parties and their marriage with each of the jurisdictions and the issues on which relief may depend in those jurisdictions;
(h)whether, having regard to their resources and their understanding of language, the parties are able to participate in respective proceedings on an equal footing; and
(i)any legitimate juridical advantage to litigating in either jurisdiction.
Consideration
It is the husband’s position that the parenting orders proceeding should occur in Australia, but that the parties’ divorce and financial proceeding should be heard in J State. It is the husband’s case that a divorce in Australia would preclude him from having the parties’ financial proceeding heard in J State. That, for him, is the real crux of the matter.
Section 170 of the J State Domestic Relations Law relevantly states that:
§ 170. Action for divorce. An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
…
(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.
(Emphasis added)
Both parties seek a divorce and neither challenge the jurisdiction of Australia or the USA to grant such divorce. Each country’s orders will be recognised by the other. It is agreed between the parties that orders made in Australia can be enforced in J State.
The wife’s position is that there is no significant financial or property matters going to necessary orders as between the parties and that the parties’ divorce should occur in Australia. Further, it is her evidence that the husband has failed to outline what financial issues he claims remain outstanding that must be determined in J State. Counsel for the wife submitted that the only claim the husband had made to date was what the husband claimed as having to “clean up” the parties’ J State apartment when the wife left.
The husband submitted that it would not be fair for him to provide currently what are the specific assets and/or liabilities of the parties beyond his allegation in the J State proceedings that “the parties have debts and liabilities” in relation to which he seeks an equitable distribution.[10] The husband further submitted that there is nothing which requires him to specify his financial claims in the Court, and that if the wife wanted information as to those claims, she could contact his J State attorney. It was the husband’s position that the parties’ assets, debts and totality of their property is located in J State. The wife maintained that the parties did not have property assets of any significance in J State and certainly nothing that could not be dealt with in Australia.
[10] Exhibit R1
It is common ground that:
(a)the wife lived in J State for four years before the parties were married;
(b)the wife resided and worked in J State from around 2014; and
(c)the parties met in 2017 and were married in early 2018.
Ms D, the husband’s J State attorney, provided unchallenged evidence that there was no impediment to the parties divorce proceeding being heard in J State pursuant to s 230 of article 13 of the J State Domestic Relations Law (which is contained in Chapter 14 of the Consolidated Laws of J State).
Mr E, a J State matrimonial and Family Law attorney for the wife, provided affidavit evidence that if the proceeding were to occur in J State it would be “at best problematic and unnecessarily (and extremely) expensive, and, at worst, impossible.”[11] Mr E further noted his hourly fee was $825 USD and his retainer fee was “at least $25,000 - $30,000” USD. It was Counsel for the wife’s position that it would be a costly exercise for the parties to have their divorce proceedings heard in J State, particularly in circumstances where the parenting proceedings are to continue in Australia costing the parties two sets of legal fees. I note the wife is incurring considerable legal expense in Australia but that the husband is a self-represented litigant. It was the husband’s evidence that he could obtain legal aid in the USA “should [he] need to”. The husband, however, was not in receipt of any legal aid in the USA in respect of Ms D’s legal fees at the present time. Further, despite the husband’s submission that it would be financially inequitable for him to have to be involved in proceedings in Australia without the benefit of a grant of legal aid, he has filed parenting proceedings in Australia and is content to proceed as a litigant in person. I note the wife is not in receipt of legal aid in Australia.
[11] Affidavit of Mr E filed 31 May 2022, annexure DN-1.
The governing law in J State, as stated in paragraph [43] above, requires the parties to settle all outstanding property and parenting matters before a divorce will be granted.[12] Thus, the parties will have to wait for the parenting proceedings in Australia to conclude and then for the orders to be formally recognised in J State before being able to obtain a divorce order. The parties agree upon that fact.
[12] Trbovich v Trbovich 112 A.D.3d 1381, 1382, 997 N.Y.S.2d 855, 857 (J State State Appellate Division, Fourth Department 2014).
The governing law for divorce and property proceedings in this Court is set out in Part VI (Divorce and nullity of marriage) and Part VIII (Property, spousal maintenance and maintenance agreements) of the Act. The Act does not preclude the Court from granting a divorce order and/or from making final property orders in circumstances where parenting proceedings are outstanding.
The J State Proceedings have been stayed since 7 September 2020 to date. Neither party has taken any steps, or in the husband’s case no substantive steps, in that proceeding to date. In Australia the various proceedings before the Court (as set out above) have been ongoing since May 2020. Both parties have filed many documents and attended numerous hearings before the Court.
It is the husband’s evidence that in or around December 2020, the husband became a self-represented litigant in this Court. However, I note that the husband’s previous solicitors were on the Court record as the legal representatives of the husband until the hearing on 7 March 2022. There is no evidence before the Court as to the husband’s payment, if any, of any incurred legal costs in Australia and nor is there evidence going to the quantum of any legal fees outstanding.
On 14 June 2022, the wife filed a costs notice to the effect that to that date the wife had spent $105,701.60 in fees and disbursements in the parenting proceedings; $22,935 remained outstanding in costs and disbursements; and it was estimated that the total fees and disbursements up to and including final hearing would be $176,000. This estimate did not include costs in respect of any property proceedings. The wife also incurred fees in the sum of $208,163.70 in relation to the Hague Convention proceedings.
Both parties have incurred costs in relation to the J State proceedings. There was no evidence before the Court as to the amount of those costs to date. Further, the husband placed no evidence before the Court as to the source of payment of his J State attorney.
There is no evidence as to what, if any, witnesses the parties would require for a property proceeding in J State. I note that the wife and her parents reside in Victoria, Australia. The husband and his parents reside in J State, USA. Each of the parties are supported to some extent by their respective parents. Both parties, however, earn an income. It is the wife’s evidence that the husband resides with his parents. The wife resides in self-contained accommodation at her parents’ home in Suburb G, which she pays weekly rent. The wife’s parents are assisting the wife in the payment of her legal costs. I am satisfied in the circumstances that the parties would be on a fairly equal footing to have the property proceeding heard in Australia together with the divorce proceeding, which is a discreet and limited issue.
X resides in Victoria and attends preschool here. There would be some obvious difficulty for the wife, given that fact, in travelling to J State, if required, if the proceedings were to occur in J State.
The parenting proceeding is being litigated between the parties in Australia. The legal costs occasioned to the wife are considerable. The ongoing nature of those costs can be ameliorated by the determining of the entirety of the parties litigation, being also the divorce and competing property applications, in Australia.
Conclusion
In the circumstances as discussed herein, I am satisfied that having the proceeding determined in Australia would not “be vexatious or oppressive, being seriously and unfairly burdensome, under circumstances where parties have a prima facie right to conduct proceedings where they have regularly invoked the jurisdiction”.[13] I am further satisfied that Australia is not a “clearly inappropriate forum” and propose to make orders in the terms sought by the wife.
[13] Penhall & Gibbens [2021] FedCFamC1F 6 referring to Henry & Henry (1996) 185 CLR 571 at 587.
Enforcement application
The husband in his Enforcement Application sought that Order 2 of the orders made 21 April 2022 be enforced as follows:
1.That as per orders No. 2 of 21 April 2022, within 48 hours [the] respondent sign [a] stipulation consenting to remove any and all custody and parenting relief in the case titled [Mr Draper] v. [Ms Corwin], Index No. […] that is currently pending in the [B Court] of [J State], [C County].
2.That in the event that enforcement order is violated [the] respondent suffer penalties for contravention of said orders.
Order 2 of the orders made 21 April 2022, the Order was as follows:
The Father is permitted to withdraw any application filed by him in the [B Court] of [J State], [C County] number 51394/20 in respect to parenting and/or custody orders as sought by him in respect of the parties’ child [X] (“[X]”) born [in] 2018.
(Emphasis in Original)
The Order does not place any obligation or requirement on the wife to sign any documents in relation to the husband’s withdrawal of his application in the B Court of J State. Rather, the Order is a permissive order which allowed the husband to withdraw his application noting that pursuant to Order 4 of the orders made 21 April 2022 the husband was otherwise restrained from taking any further steps in the proceedings in the B Court of J State, C County, No….
At the time of the hearing on 21 April 2022, the husband did not inform the Court or the other party or provide any indication that the wife would be required to sign any documentation in relation to his withdrawal of his application in the J State proceedings as to the parenting orders component. Further, in his Application in a Proceeding filed 5 April 2022, the husband merely sought to change the orders of 7 July 2020 to enable him to withdraw the cause of action related to the custody and parenting matters in the J State proceedings.
Counsel for the wife submitted that the wife had understood that family law proceedings in the J State could be withdrawn in a similar manner to that of this Court, being the filing of a Notice of Discontinuance or Notice of Withdrawal, and did not require the wife’s input. The husband has now stated that this is not the case.
The Application for Enforcement is hereby dismissed.
I will order that the husband file the necessary documentation in the B Court of J State, C County to withdraw his applications therein filed as identified in the foregoing and I am satisfied that the wife will assist in that regard, if required. Australia is the appropriate forum for the determination of the parties parenting and property matters, and their divorce.
Costs
The wife sought her costs of and incidental to the Application for Enforcement filed by the father on 30 May 2022 and her Amended Response to an Application in a Proceeding filed 31 May 2022 on an indemnity basis.
The husband sought dismissal of such application.
Neither party made oral submissions to the Court as to costs at the hearing, aside from the wife seeking the orders in accordance with her application as stated above and as set out in the wife’s material. As the matter has now been determined and the husband has been wholly unsuccessful, orders will be made for the filing of written submissions as to costs.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 24 August 2022
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