Eochadha & Baron

Case [2024] FedCFamC1F 808

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Eochadha & Baron [2024] FedCFamC1F 808

File number: SYC 674 of 2024
Judgment of: CAMPTON J
Date of judgment: 27 November 2024
Catchwords: FAMILY LAW – JURISDICTION – PERMANENT STAY – Where the husband contends that Australia is a clearly inappropriate forum to hear and determine the wife’s relief pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) and related relief seeking declarations as to the beneficial interests held by the husband’s adult children in real property in Australia, and in the alternative pursuant to s 106B of the Act – Where the husband commenced proceedings in the Family Courts in Country G for divorce and ancillary relief for the division of matrimonial assets immediately prior to the wife commencing proceedings in this Court – Where the husband bears the onus of establishing that Australia is a clearly inappropriate forum to determine the dispute – Consideration of single expert evidence pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as to the law of Country G – Where the proceedings in the current respective courts do not involve the same parties and do not engage the same controversies – Where the Country G proceedings would require a separate claim in a different court in that forum – Where to order a permanent stay of the proceedings in this Court would have the effect of summarily determining parts of the wife’s relief – Where it is not established that Australia is a clearly inappropriate forum – Application for a permanent stay of these proceedings dismissed.
Legislation:

Family Law Act 1975 (Cth) Pt VIIAB, ss 39(4), 44(6), 75(2), 79, 79(4), 106B

Foreign Acquisitions and Takeovers Act 1975 (Cth)

Foreign Judgments Act 1991 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, r 7.26

Women’s Charter 1961 (Singapore) s 112, 112(2), 112(5)(c), 112(10), 114(1), 132, 132(1)(f)
Cases cited:

Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90

Henry v Henry (1996) 185 CLR 571; [1996] HCA 51

Obannon & Scarffe [2021] FamCAFC 33

OceanicSunLine Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55

Willmot v Queensland [2024] HCA 42

Yadu & Orgit [2022] FedCFamC1A 79
Division: Division 1 First Instance
Number of paragraphs: 84
Place: Sydney
Date of hearing: 25 November 2024
Counsel for the Applicant: Mr Williams KC with Mr Roberts
Solicitor for the Applicant: Lander & Rogers
Counsel for the First Respondent: Mr Kearney SC
Solicitor for the First Respondent: Dorter Family Lawyers & Mediators
Solicitor for the Second and Third Respondents: Did not participate

ORDERS

SYC 674 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BARON

Applicant
AND:

MS EOCHADHA

First Respondent

MS B BARON

Second Respondent

MS C BARON

Third Respondent

ORDER MADE BY:

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Eochadha & Baron [2024] FedCFamC1F 808
Case
[2024] FedCFamC1F 808
Decision Date

CaseChat Overview and Summary

In the case of Eochadha & Baron, the husband applied for a permanent stay of the wife’s proceedings under section 79 of the Family Law Act 1975 (Cth), seeking declarations as to the beneficial interests held by his adult children in real property in Australia. The husband argued that Australia was a clearly inappropriate forum for determining these proceedings and that Country G was a more appropriate jurisdiction. The wife, however, contested this application, asserting her right to the exercise of the court's jurisdiction and highlighting the legitimacy of her claims.

The legal issues before the court were whether Australia was a clearly inappropriate forum for these proceedings, and if the husband had established that the continued prosecution of these proceedings was oppressive, seriously and unfairly burdensome, prejudicial, or damaging. The court had to consider the principles of forum non conveniens and the relevant inherent or implied power to stay proceedings. The husband bore the onus of proving that Australia was a clearly inappropriate forum, and the court noted that a permanent stay should only occur in exceptional circumstances.

The court found that the husband had not established that Australia was a clearly inappropriate forum. It was noted that the Australian proceedings could more effectively provide a complete resolution to the entirety of the controversies between all parties. Additionally, the wife had a legitimate interest in the proceedings continuing in Australia, and to stay the proceedings would summarily determine her claims to certain property and litigation funding. The court also considered the availability of video conferencing and the fact that the primary witnesses were in Country G, but concluded these factors did not outweigh the need for a complete resolution in Australia. Therefore, the husband’s application for a permanent stay was dismissed.

As a result, the court ordered the husband to file a Further Amended Response to an Initiating Application and a Financial Statement, listed the proceeding for further directions before a senior judicial registrar, and provided for the opportunity to apply for costs. The case will proceed to determine the wife’s claims and the beneficial interests held by the husband’s adult children in the real property in Australia.

Orders

Orders of the court

SYC 674 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BARON

Applicant

AND:

MS EOCHADHA

First Respondent

MS B BARON

Second Respondent

MS C BARON

Third Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

27 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The Response to an Initiating Application filed by the husband on 3 April 2024, as amended on 8 August 2024, is dismissed.

2. On or before 18 December 2024 the husband file and serve a Further Amended Response to the Amended Initiating Application of the wife filed on 26 July 2024 and a Financial Statement.

3. The proceeding be listed before a senior judicial registrar for case management on 20 January 2025.

4. Should a party make an application for costs of or incidental to the husband’s application for a permanent stay, they are to file and serve within 28 days of the date of these orders an Application in a Proceeding specifying the orders sought as to costs and any affidavit in support thereof. In that event, orders will be made in chambers as to the filing of any Response to the Application in a Proceeding for costs and affidavit in support thereof, together with outlines and written submissions, with the costs application to be listed on a date to be fixed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, the husband’s application for a permanent stay is refused and his Response to an Initiating Application filed on 3 April 2024, as amended on 8 August 2024, is dismissed. Orders are made for the husband to file a further Amended Response to an Initiating Application and a Financial Statement, for the proceedings to be listed for further directions before a judicial registrar by way of the court management pathway, and as to the filing of material (if any) as to costs.BACKGROUND The husband was born in Australia in 1952 and is currently 72 years old. He is an Australian citizen and a Country F citizen. In 2000 he became a permanent resident of Country G. The wife was born in 1961 and is currently 63 years old. The wife has dual Country G and Country H nationality. The parties commenced cohabitation in Country G in 2014, were married in early 2018, and separated on 26 January 2024. There are no children of the relationship. The wife has one child from a previous relationship who is now an adult. In 2002 the husband established J Group, an entity that was based in Country G and had offices in Country K and Country L. In 2003 the husband purchased a real property at Suburb M (“the Suburb M property”) in Country G. In 2006 the wife purchased a real property at N Street, Suburb O, Country G (“the Suburb O Property”). In 2014 the parties commenced cohabitation in Country G. In 2016 the husband sold J Group. The husband:(a)Purchased a real property in Region P, Country F for approximately EUR450,000. He did not give evidence as to the date of acquisition. The wife contends it was purchased in late 2017.(b)Purchased a real property in City Q, Country F for approximately EUR720,000. He did not give evidence as to the date of acquisition. The wife contends it was purchased in 2018.(c)Owned two apartments at Suburb S in Region R, Australia (“the Region R properties”). Neither the husband nor the wife gave evidence as to the date of the acquisitions. The husband contends that the Region R properties were sold in 2021. The wife contends that they were sold at different times from each other, in 2017 or 2018. In November 2017 the husband sent an email to his mother, forwarded to the wife, in which he said:Mum…Secondly, I fully understand how you feel about [sic] leaving your home [in Region R] where you had great views & your little garden outside… But now we will be seeing you in Sydney [sic].[The wife] & I are looking to buy something close to [the second respondent] so that you can come to spend time with us there… After their marriage in Country G in 2018, the parties had a wedding celebration in Australia a short time later. Sometime in 2018 the husband retired. In paragraph 40 of his affidavit sworn on 16 May 2024 the husband said he sold the Suburb M property in 2019. At paragraph 60 of that affidavit, he said that it was sold in 2018. In May 2019 the husband transferred $100,000 to each of his adult children, the second and third respondents.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The husband anticipates that his witnesses would include accountants, commercial lawyers, private bankers, and former employees of J Group, all of which are in Country G. The wife submitted that nevertheless, “[i]n an age of video conferencing, and hearings being conducted online, the location of some potential witnesses would not be weighty”. The wife identified that the primary witnesses in the Australian proceedings would be the husband and the wife, who are in Country G, and the second and third respondents, who are in Australia. The wife said that the likely expert valuations of real properties in Australia, Country G, and Country F is a “neutral factor” given overseas valuations will need to be conducted irrespective of where the proceedings are conducted. There is merit to this submission.CONCLUSION The husband has not established, in the Voth sense, that the continued prosecution of these proceedings is oppressive in the sense of them being seriously and unfairly burdensome, prejudicial, and damaging. On a consideration of the above factors, and specifically because:(a)This proceeding can “more effectively” provide a complete resolution to the entirety of the controversies between all the parties;(b)In Country G, a separate proceeding would need to be brought to determine in part, but not completely, the controversy between the wife and the second and third respondents;(c)To permanently stay the Australian proceedings at this time would summarily determine the wife’s claim to the Suburb E property in specie and as to litigation funding; and(d)The wife has established that there are legitimate juridical advantages to her of this proceeding;I find that Australia is not a clearly inappropriate forum. The husband’s application for a permanent stay of these proceedings will be dismissed. Directions will be made for the husband to file an Amended Response to an Initiating Application and a Financial Statement. Both parties sought costs of the application for permanent stay. No evidence was identified on that subject matter or opportunity provided to make submissions on it. Directions will be made providing that opportunity should any party seeks costs. The proceeding will be listed before senior judicial registrar for case management including the filing of points of claim and defence at to the claim made to the Suburb E property and the listing of the wife’s Application in a Proceeding filed on 26 April 2024. For all of the above reasons I make the orders as set out herein.

Ratio Decidendi

Legal Principle Established

At the hearing of this dispute on 25 November 2024, both the husband and the wife attended in Sydney person.CONSIDERATION It was uncontroversial that this forum has jurisdiction to hear the s 79 property adjustment between the husband and the wife (s 39(4) of the Act) and associated relief sought as to the Suburb E property. The husband applies for a permanent stay of these proceedings, on the basis that this Court is a clearly inappropriate forum. The wife identifies that she has regularly invoked the jurisdiction of this Court and has prima facie right to insist upon its exercise. The issue for determination is whether these Australian proceedings continue. The husband’s case is that the wife’s litigation pursuant to the Act is little more than “forum shopping”. He submits that the wife has no connection with Australia except by way of the Suburb E property. He cites that it is not her case that she wishes to live, or has any capacity to reside, in Australia. The husband identifies the risk of inconsistent findings if the same issues are the subject of differing determinations according to different regimes in both Australia and Country G, asserting that the evidence establishes that the wife ought to be precluded from asserting her rights arising from the cohabitation and marriage in this forum. Both parties identified relevant inherent or implied power of this Court to stay proceedings by application of well settled principle on the grounds of forum non conveniens as identified by the High Court in OceanicSunLine Special Shipping Co Inc v Fay (1988) 165 CLR 197 (“Oceanic Sun Line”), Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”) and in the context of family law litigation and the particular suit pending elsewhere, identified the expanded principles in Henry v Henry (1996) 185 CLR 571 (“Henry”). In Voth, the High Court adopted the test of Deane J in Oceanic Sun Line (at 247), that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be 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”. Oceanic Sun Line makes clear (at 247–248), as repeated in Voth (at 554), that the power should be exercised with great caution and only in a clear case. In this case, the husband does not seek a temporary stay of these local proceedings to allow factual or other issues to be determined in Country G. He seeks a permanent stay of these proceedings. The High Court has recently identified that the order of a permanent stay should only occur in exceptional circumstances (Willmot v Queensland [2024] HCA 42 at [15]). Both parties identified what was clearly said by the Full Court in Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90 (“Bakshi & Mahanta (No 2)”):51Despite some earlier suggestion that the local court should engage in some analysis of the foreign litigation (for example Henry at 592–593; Navarro at [64]), it now appears settled that the focus is on the inappropriateness of the local court. The focus is not upon the appropriateness or comparative appropriateness of the foreign forum, but on assessing whether there are enough factors indicating that the local forum is clearly inappropriate, in which case a stay should be granted: Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; Navarro at [166] citing Martin Davies et al, Ngyh’s Conflict of Laws in Australia (LexisNexis Butterworths, 8th edition, 2010) at [8.29] (repeated in the 10th edition). Australian courts should not concern themselves with an assessment of the comparative procedural or other claims of the foreign forum: Voth at 558; Henry at footnote 68; Navarro at [29]; Zhu & Xie [2021] FedCFamC1F 86 at [10]. As Deane J put it in Oceanic Sun Line at 242, “the clear inappropriateness of the local forum may justify dismissal or a stay. The mere fact that some foreign tribunal would represent a ‘more appropriate’ forum will not”.(Emphasis added)