Draper & Corwin

Case [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…

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AGLC
Draper & Corwin [2022] FedCFamC1F 626
Case
[2022] FedCFamC1F 626
Decision Date

CaseChat Overview and Summary

The court was presented with a dispute between a husband and wife, both citizens of the USA and Australia, over the jurisdiction for their parenting, divorce, and financial proceedings. The wife sought to have the proceedings determined in Australia, while the husband preferred to have the divorce and financial proceedings heard in the USA. The court had to decide whether Australia was a "clearly inappropriate" forum for the proceedings. The husband argued that Australia was an inappropriate forum because a divorce in Australia would prevent the financial proceedings from being heard in the USA, due to a jurisdictional requirement in the USA that all issues, including financial matters, must be resolved before a divorce is granted.

The court considered various factors to determine the appropriate forum, including the order in which the proceedings were instituted, the stage reached, and the costs incurred; the ease of enforcement of orders in either country; the connection of the parties and their marriage with each jurisdiction; and the ability of the parties to participate in the proceedings on an equal footing. The court found that Australia was not a "clearly inappropriate" forum for the proceedings, as both countries recognized each other's orders, and the wife's ongoing litigation costs in Australia could be ameliorated by determining the entirety of the parties' litigation in Australia. The court proposed to make orders in the terms sought by the wife, allowing the proceedings to be determined in Australia.

The husband's application for enforcement of a specific order was dismissed, as the order did not require the wife to sign any documents in relation to the husband's withdrawal of his application in the USA proceedings. The court found that the wife had understood that family law proceedings in the USA could be withdrawn in a similar manner to that of the Australian court, without requiring the wife's input. The husband's assertion that this was not the case was not supported by evidence or argument.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.