Eochadha & Baron
[2024] FedCFamC1F 808
•27 November 2024
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:
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eochadha & Baron has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine the Response to an Initiating Application of Mr Baron (“the husband”) filed on 3 April 2024, as amended on 8 August 2024, seeking that the Initiating Application of Ms Eochadha (“the wife”) filed on 5 February 2024, as amended on 26 July 2024, to be permanently stayed.
By way her Amended Initiating Application the wife seeks orders adjusting property between she and the husband pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) and ancillary relief by way of declaration as to the legal and beneficial ownership of a real property at D Street, Suburb E NSW (“the Suburb E property”), orders implementing that determination to transfer that property in specie to the wife, and in the alternative relief pursuant to s 106B of the Act to set aside a disposition made by the husband in favour of his adult children, Ms B Baron and Ms C Baron (“the second and third respondents”), who are the legal owners of the Suburb E property. The second and third respondents are mandatory and necessary parties to this proceeding because the relief sought by the wife directly affects their rights and interests.
The second and third respondents, by way of their Response to an Initiating Application filed on 3 April 2024, seek that the wife’s Initiating Application to be dismissed. They were excused from, and did not participate in, the hearing of the husband’s application for a permanent stay.
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.
The husband contends that in July 2019 the third respondent told him that she had seen the Suburb E property for sale and that she and the second respondent were interested in purchasing it. In her affidavit, the wife said that prior to the purchase, the husband told her:
“I want to purchase somewhere comfortable for us to stay when we are in Sydney to spend time with my mother”. [The husband] also said to me: “I want you to treat Sydney like our home. Please renovate it and furnish it the way you would feel comfortable like you did for us in [Region P and City Q]”.
In mid-2019 the husband said that he transferred $3.6 million to the second respondent.
A short time later, the Suburb E property was purchased at auction. The wife said that it was purchased for over $3 million. The second and third respondents were recorded as the purchasers. The settlement was completed in late 2019. The husband contends that the property was acquired legally and beneficially by the second and third respondents. The wife contends the property was purchased by the second and third respondents on trust for the benefit of the husband.
In early 2020 the husband sent an email to the builders undertaking renovations to the Suburb E property, in which the wife was copied into, and said:
My wife […] & I bought [the Suburb E property] at the front a few months ago from the previous owner who’d lived here for 37 years ! So we are considering a major “gutting“ of the apartment
However we live in [Country G] & travel to Syd[ney] every couple of months , & whilst we’d like to commence the renov[ation] exercise sooner than later ,we are at the same time in no rush as the place is comfortable & meets our current needs
We are returning to [Country G shortly] & back again [a month later] for a couple of weeks
(As per the original)
In early 2020 the wife sent an email to T Company, who were undertaking the renovations on the Suburb E property, and in which the husband was copied into, and said:
Thank you for your email below. I have included on this email, our daughter [the second respondent] who will be helping us project manage our renovations.
Our next trip has been scheduled for [two weeks from now]. We will be in touch shortly to schedule our next meeting with you and designer.
Best [sic] regards,
[The wife]
The wife contends that in early 2020 she was first informed that the Suburb E property was purchased in the names of the second and third respondents.
In early 2020 the husband and his sister purchased a property at U Street, Suburb V NSW for $1.02 million as tenants in common in unequal shares. The husband has a 76.5 per cent interest in that property. The husband’s sister currently resides in that property.
In about mid-2020 the husband gifted the wife Country G currency $280,000 which she applied to the mortgage of the Suburb O property. The husband contends that he also paid another Country G currency $35,000 for renovations to that property.
In mid-2020 the husband and the wife commenced to occupy the Suburb O property.
The husband contends that the wife last travelled to Australia in late 2022.
The husband spent time in Australia between late 2023 and early 2024.
In early 2024 the husband and the wife attended a couples’ counsellor and agreed to a divorce.
A short time later, the husband and the wife attended a pre-mediation conference with a practising lawyer and mediator in Country G.
Two days later, the husband filed a Writ for Divorce and ancillary proceedings pursuant to the Women’s Charter 1961 (Country G) (“the Women’s Charter 1961”) in the Family Courts in Country G.
The husband said that in early 2024 his solicitors in Country G wrote to the wife by way of email informing her that he had commenced divorce proceedings and that she could elect to accept service of “the divorce papers” by way of email, or to have them personally served upon her. The husband said that the wife did not respond to that email.
On 5 February 2024, the wife commenced these proceedings in the Federal Circuit and Family Court of Australia (Division 2).
On 6 February 2024 the wife was served personally with the husband’s Country G Court documents at the Suburb O property.
On 12 February 2024 the husband was served personally with the wife’s Initiating Application filed in Division 2 at the Suburb E property.
In early 2024 the wife filed a Memorandum of Appearance in the Country G Court indicating her wish to defend against the Writ for Divorce as filed by the husband.
Two weeks later, the wife applied by summons to stay the Country G proceedings. Four weeks after this, the Country G proceedings were listed for a case conference.
On 4 April 2024 the Division 2 proceeding was transferred to this Court.
On 26 April 2024 the wife filed an Application in a Proceeding in this Court seeking interim spouse maintenance and for the husband to pay her a lump sum litigation funding of $150,000 or in the alternative for him to pay a dollar-for-dollar litigation funding order. That interlocutory application has not been determined. Its further progression is awaiting the determination of this application.
In early 2024 the Country G proceedings were listed for a further case conference.
On 13 May 2024 these proceedings were listed for directions before a judicial registrar. On 13 May 2024 the proceedings were also listed for case management hearings before Schonell J.
In mid-2024 the Country G proceedings were listed for a further case conference and directions. The wife’s anti-suit injunctive relief in that forum was listed for hearing in late 2024.
The orders sought by the wife in her Amended Initiating Application filed on 26 July 2024 are:
1. That there be a declaration that the Second and Third Respondents hold on trust for the Respondent Husband the property situate at [the Suburb E property] registered in the joint names of [the second and third respondents] ([Suburb E] property).
2. By way of implementation of Order 1 herein, the parties shall do all acts and things necessary to cause the transfer of the [Suburb E] property to the sole name of the Respondent Husband, at the Respondent Husband's costs, such that the Second and Third Respondents shall sign all documents presented to them by the Respondent Husband and the Respondent Husband shall do all other things necessary for such transfer.
3. That upon the [Suburb E] property being transferred to the Respondent Husband pursuant to Order 2 herein, the Respondent Husband shall forthwith do all acts and things and sign all documents necessary to discharge any and all encumbrances secured against the [Suburb E] property (if any) at his cost and thereafter cause the transfer of the [Suburb E] property to the sole name of the Applicant Wife, such that the Respondent Husband shall sign all documents presented to him by the Applicant Wife and the Applicant Wife shall do all other things necessary for such transfer.
4. That in the alternative to Orders 1 to 3, pursuant to Section 106B of the Family Law Act 1975 (Cth), the Court set aside the transaction whereby the husband purchased the [Suburb E] property in the joint names of [the second and third respondents] and the parties forthwith do all acts and things and sign all documents necessary to cause the [Suburb E] property to be registered in the Applicant Wife's sole name at the Respondent Husband's cost, and with the Respondent Husband to do all acts and things and sign all documents necessary to discharge any and all encumbrances secured against the [Suburb E] property (if any) at his cost.
5. That the Applicant Wife and the Respondent Husband otherwise retains all other assets, liabilities and financial resources currently standing in each of his / her sole name.
6. That leave be granted to the Applicant Wife to amend and further particularise final orders sought upon the Respondent Husband providing full and frank disclosure.
7. That the Respondent Husband pay the Applicant's costs of and incidental to these proceedings.
(Emphasis removed)
On 30 July 2024 the matter was listed before Schonell J for case management. Orders were made facilitating the preparation of single expert opinion evidence pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) as to the relevant law of Country G concerning divorce and the power of the Country G Courts to make orders consequent to the granting of the divorce as to spousal maintenance and division of matrimonial assets between the husband and the wife.
In mid-2024 the husband proposed to enter consent orders in Country G providing that he not move USD$5 million of funds from his Country G portfolios pending determination of his ancillary causes in that forum. The wife did not agree to those proposed orders. In his affidavit filed on 11 November 2024, the husband said:
37.I undertake to this Honourable Court that I will not transfer the funds in the [X Bank] portfolios, save for the regular distribution of my pension, pending the outcome of the ancillary proceedings in [Country G]. I understand the effect of this undertaking and that if I breach it, I can be found to be in contempt and punished.
On 8 August 2024 these proceedings were listed for a compliance and readiness hearing before Schonell J. Further directions were made facilitating the preparation of evidence by the ch 7 single Country G law expert, Mr W.
The wife’s summons for anti-suit injunctive relief in the Family Courts was heard on late 2024. The hearing was not completed and was adjourned part heard to a short time later.
The ch 7 single Country G law expert prepared a report dated 16 October 2024. It is attached to his affidavit sworn on 21 October 2024.
On 25 October 2024 Schonell J listed the husband’s relief as the question of forum for hearing on 25 November 2024.
On 1 November 2024 questions were posed to the ch 7 single Country G law expert by each of the husband and the wife pursuant to r 7.26 of the Rules. The single expert provided answers to those questions on 22 November 2024, being Exhibit 1 (the husband’s questions and answers) and Exhibit 2 (the wife’s questions and answers).
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)
The husband accepted that the onus of proof rests with him in establishing that this Court is a clearly inappropriate forum (Henry at 579, 580 and 589; Voth at 556, 564, and 587; Bakshi & Mahanta (No 2) at [52]). In the event that the husband does not discharge that burden, the Australian proceedings are competent. If he establishes this Court is a clearly inappropriate forum, these proceedings should be stayed.
The husband and the wife both agreed that the factors relevant to the determination of whether this Court is a clearly inappropriate forum, as set out in Henry and Obannon & Scarffe [2021] FamCAFC 33, include:
(a)Factors of convenience and expense, such as the location of witnesses;
(b)Whether, having regard to their resources and understanding of the language, the parties are able to participate in the respective proceedings on an equal footing;
(c)The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;
(d)Whether the other potential forum will recognise Australian orders and vice-a-versa, and the ease of enforcement in each country;
(e)Which forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy;
(f)The order in which each of the proceedings were instituted, the stage which they have reached, and the costs incurred in each jurisdiction;
(g)The governing law of the dispute;
(h)The place of residence of the parties;
(i)The availability of an alternative forum; and
(j)Any legitimate juridical advantage to litigating in either jurisdiction.
The husband said that the wife had no real connection to Australia, and the conduct of their relationship had little connection with Australia. The wife gave evidence that the parties travelled to Australia “frequently” to care for the husband’s mother, and that, with the exception of travel restrictions due to COVID-19 in 2020 and 2021, the husband travelled to Australia for three to four months each year and spent approximately the same amount of time in Country G each year. The husband said that this evidence is “demonstrated to be false” by the movement records produced on subpoena by the Department of Home Affairs. In his Case Outline the husband included a table setting out the number of days spent in Australia by each of the husband and the wife from 2014 to 2024:
Husband Wife 2014 13 10 2015 28 9 2016 36 19 2017 85 28 2018 49 22 2019 67 34 2020 56 24 2021 153 66 2022 176 85 2023 42 0 2024 58 0 763 297
The husband submitted that “almost all” of the property interests of he and the wife are in Country G. I do not accept that submission. Included in his Case Outline was a contended list of his and the wife’s assets, liabilities, and superannuation interests, said to be sourced from his affidavit and the wife’s material including her financial statement. It comprises real property interests held legally and beneficially in Country G, real property interests in Country F and Australia, cash at bank, publicly listed shares, insurance policies, interests in a superannuation fund known as Superannuation Fund 1 of each of the husband and the wife, jewellery and other personalty. The additional property in dispute is the legal and beneficial interests in the Suburb E property.
I accept the single expert’s evidence that:
(a)The jurisdiction of the Country G Family Courts pursuant to the Women’s Charter 1961 to determine issues as to the divorce of the parties and as to spouse maintenance and the division of matrimonial assets between them is grounded from the husband being domiciled in Country G at the time of the commencement of the proceedings and being habitually resident in Country G for a period of three years immediately preceding the time of commencement of the proceedings. Those proceedings are to be determined by two-stage process divorce proceedings between the husband and the wife and then ancillary litigation as to the division of “matrimonial assets” pursuant to s 112 of the Women’s Charter 1961. A stand-alone action for spouse maintenance can be instituted prior to divorce.
(b)The Family Courts of Country G will not consider contributions made during cohabitation prior to marriage in the division of “matrimonial assets” unless those cohabitation or pre-cohabitation assets are “transformed” into “matrimonial assets”. Issue exists between the husband and wife as to whether such transformation of specified items of property has occurred. The wife identifies that if the Country G proceedings go ahead, then any disputes as to pre-marriage contributions during the period of the “de facto relationship” between the husband and the wife may, subject to leave, be open to be the subject of separate claims in this Court pursuant to Pt VIIAB of the Act, subject to establishing the geographical requirements to ground jurisdiction and, potentially, leave pursuant to s 44(6) of the Act. I take the point no further.
(c)The Family Courts can make orders in personam for the transfer of real property (immovable property) outside of Country G in the division of matrimonial assets, but only as between parties to the marriage (s 112(5)(c) of the Women’s Charter 1961).
(d)Pursuant to s 132(1)(f) of the Women’s Charter 1961 the Family Courts have power to set aside a disposition of property made within three years preceding the date of the application. Both parties accept that the three-year time limitation is absolute and cannot be abridged or extended in any way. Additionally, s 132 is applicable to dispositions of property with the intent to deprive the other spouses’ rights in relation to that property. Hence, the relevant indicia for relief pursuant to s 132 are only the date and intent of the disposition. On the husband’s own evidence, he transferred $3.6 million to the second respondent in mid-2019. Given the Country G proceedings commenced in early 2024, the wife is out of time to pursue any remedy under s 132 of the Women’s Charter 1961 to achieve its setting aside of the disposition. That relief is not available.
(e)If a party (here, the wife) asserts, subject to contest, that the other party (here, the husband), has a beneficial interest in “immovable” property held by a third party (here, the Suburb E property), that property does not fall within the definition of “matrimonial assets” in s 112(10) of the Women’s Charter 1961 and hence the Family Courts do not have power by way of the Women’s Charter 1961 to hear the claim as to the rights and ownership of that property. The husband denies he has any beneficial interest in the Suburb E property. I find that as the husband and the wife are not on the legal title of the Suburb E property, that property is not amenable to the Women’s Charter 1961.
(f)Any interest of the husband or wife in the Suburb E property, if determined in Country G, would need to be determined by the High Court of Country G upon application by way of a separate civil suit to have “the rights in that property determined” seeking a declaratory judgment “regarding the proprietary rights on that property”.
I find, as opined by the single expert, that there are multiple layers of complexity in pursuing such remedy, in a different court to the current Country G litigation, being:
(a)That while the High Court of Country G has jurisdiction to make a declaratory judgment on the proprietary interest in immovable property situated in Country G, the general rule is that the High Court of Country G does not have the jurisdiction to determine the title to any immovable property situated outside that forum.
(b)An exception to this general rule is that the High Court of Country G can assume jurisdiction where the claim is in equity, known as “the personal equities exception”.
(c)A claim for a declaration as to the husband’s beneficial interest in the Suburb E property is “likely” to constitute a claim in equity, falling within the personal equities exception.
(d)The High Court of Country G would apply New South Wales real property law and equitable principles to the declaratory claim, if made.
(e)An additional uncertainty exists, being that if the personal equities exception is invoked and the High Court of Country G assumes equitable jurisdiction over the matter, the High Court of Country G may nevertheless decline to exercise the jurisdiction on the basis of forum non conveniens. Whilst the ch 7 single expert identified the applicable forum test, he did not opine as to it’s likely determination in the High Court of Country G. There is no evidence as to whether the second and third respondents, anticipated to each be a necessary party to any Country G High Court cause, would concede jurisdiction in that forum.
(f)The proceedings pursuant to the Women’s Charter 1961 in the Family Courts would be stayed until the High Court cause was concluded.
The expert explicitly caveated that his opinion is on the assumption that the wife’s application, if made, to the High Court of Country G, was “limited to determining the Husband’s beneficial interest in the [Suburb E] Property and does not require the Country G High Court to determine the legal ownership of the property”. I do not accept the submission of the husband that the words “does not require the [Country G] High Court to determine the legal ownership of the property” should not be read as being a preclusion that the High Court cannot determine the legal ownership, but instead it should be read as meaning that the beneficial interests can be determined without a requirement to determine the legal ownership. I find that, subject to a positive outcome for each of the identified variable considerations, if a declaration was made by the High Court of Country G, no order would be made implementing the declaration.
The husband submitted that the transaction or disposition subject to controversy in this proceeding is the payment of funds to the daughters in mid-2019, not the application of those funds, and implicitly not the Suburb E property. The wife submitted that this would be an “extraordinarily narrow conception” at this stage of the proceedings of the range of relief sought, in circumstances where the second and third respondents have not put on any evidence or information and as such the wife and the Court does not know with precision how those funds have been applied other than by inference to the acquisition of the Suburb E property.
The husband submitted that upon determination in Country G as to whether the husband (or the wife) “has a beneficial interest” in the disputed immovable property outside Country G “such beneficial interest will be taken into account in determining the division of matrimonial assets of the parties by the Family […] Court”. This in turn leads to the conclusion that the wife will not be prejudiced in the division of matrimonial assets in the Family Courts because the cash value of the husband’s interest, if established, in the Suburb E property, can be considered and “taken into account” in that division because he has sufficient current cash to meet the value of the Suburb E property, contended by the wife to be valued at $6.2 million. To some extent, this submission is hollow. The wife seeks the sole legal and beneficial ownership of the Suburb E property in specie as a product of her current application in this forum. Her case is not limited to a consideration of its value in the division of matrimonial assets.
I do not accept the husband’s submission that the nature of the assets which are the subject of dispute, including the alteration of property interests and spouse maintenance, are such that all issues can be considered and determined in Country G. The wife’s claim in this forum is to achieve the legal and beneficial interest in the Suburb E property by way of alternate avenues, either by way of equitable principles applicable in New South Wales or by way of s 106B of the Act, the latter operating irrespective of intention, both having the adjunct directed to the legal title of the Suburb E property. I find that the current litigation in Country G and the necessary future additional separate litigation in Country G cannot determine all issues between the parties in this proceeding, as is the circumstance in this forum, and they cannot be identified as not dissimilar causes of action. They are not between the same parties and are not with respect to the same controversy (Henry at 591–592). The controversy between the wife and the second and third respondents is with respect to the Suburb E property and whether it is held on trust for the husband, and the controversy between the wife and the husband is as to property adjustment, and spousal maintenance.
The chronology of the institution of each set of proceedings is recorded earlier in these reasons. It does not necessarily follow that the Australian action should be stayed even if it was begun immediately after the Country G action. There is merit in the wife’s submission that the Australian proceedings “cannot be considered oppressive in the Voth sense”.
The wife’s costs notice filed on 21 November 2024 records she has incurred costs in these proceedings of $109,230. The husband’s costs notice filed on 22 November 2024 records he has incurred costs in these proceedings of $100,600. As to the costs of the proceedings in Country G, the single expert opined:
If the proceedings in relation to the division of matrimonial assets and maintenance were contested, the legal fees may amount to about [Country G currency] $50,000 for each party if the proceedings took about a year to conclude. If the proceedings took a longer period of about 2 years, the legal fees may range from [Country G currency] $100,000 to [Country G currency] $150,000. The extent of legal fees will depend, for example, on the complexity of the issues, whether there are applications for discovery and interrogatories, the length of the hearing, and the seniority of the lawyers appointed.
The litigation in the Country G Family Courts remains in its infancy subject to determination of the wife’s anti suit summons. The ch 7 single expert opined that the estimated time frame for the finalisation of a contested division of assets and maintenance hearing is approximately one year to one and a half years, and for the separate issues proceeding in the High Court of Country G as to the third-party rights as to the real property is approximately one year to one and a half years, excluding any appeal, a total of up to three years. The litigation is yet to meaningfully progress in Australia. In the event it does progress, it would be estimated to be concluded in 12–18 months from the current time. Both proceedings are conducted in English. Each party can participate on an equal footing subject to, dependent upon this determination, and potentially the wife’s Application in a Proceeding filed on 26 April 2024 for litigation funding and spouse maintenance is ready to proceed to an interim hearing. I accept the single expert’s opinion that the Country G Court is not seized with jurisdiction to make orders as to litigation funding.
The substantive law that will govern the matrimonial dispute will be whichever forum determines the spouse parties’ property rights. The husband submitted that the considerations in making a spouse maintenance order pursuant to s 114(1) of the Women’s Charter 1961 are “similar” to those set out in s 75(2) of the Act, and that the considerations as to property alteration in s 112(2) of the Women’s Charter 1961 are “similar” to those as set out in s 79(4) of the Act. The wife submitted that there is a “substantive divergence” in the principles applied in Country G and Australia, being specifically that Country G does not recognise the wife’s contributions to the relationship when the parties were cohabiting, but not yet married, which she submits was approximately 40 per cent of the length of the total relationship.
The husband identified juridical advantage in litigating in Country G as to the parties’ superannuation entitlements in Country G and matters relevant to the “property governed by the housing development board” in that country owned by the wife’s mother, contended to be beneficially owned by the wife. No party appears to seek orders in relation to either subject-matter. The husband contended that in the event his application for a permanent stay is unsuccessful, and if the proceedings continue in Australia, he may contend that there is no warrant for the adjustment of property between he and the wife pursuant to s 79 of the Act.
The wife submitted that there are four significant juridical advantages to her in litigating in Australia. They are:
58. Firstly, the parties were in a de facto relationship for almost four years before they married. The wife’s evidence from [19]-[24] is that she made significant financial and non-financial contributions (especially to the husband’s business) prior to their marriage. Such contributions in the period prior to marriage will be considered as part of the holistic assessment under s 79, but will not be considered in [Country G]. As the single expert explains at [12], “any contributions made during such period of cohabitation prior to their marriage is not relevant and will not be taken into account in determining issues of spousal maintenance and / or division of matrimonial assets.”
59. Secondly, the wife can pursue her claim under s 106B to set aside the disposition to the husband’s daughters in Australia, whereas she is out of time to pursue such a claim in [Country G].
60. Thirdly, the second and third respondents can participate in proceedings in Australia, but they cannot participate in the [Country G] proceedings. The single expert opined at [57]-[60] that the wife would need to commence separate civil proceedings against the husband’s daughters seeking a declaration that the [Suburb E] property is matrimonial property.
61. Finally, the wife has filed an Application in a Proceeding in this Court seeking interim litigation funding. As the single expert makes clear at [16] “It is not possible for parties to obtain an order for litigation funding for divorce proceedings in [Country G]…”
The wife submitted that there is a real issue as to whether the property of the parties and contributions prior to the date of marriage will be “taken into account” in the Country G proceeding, as such property will only be considered if it has been “transformed” into a matrimonial asset. She submitted that this was identified as the subject of substantial issue between the husband and the wife in the Country G proceedings.
Each party touched upon the wife’s necessity to obtain approval from the Foreign Investment Review Board to own real property in Australia. The wife provided substantial material to support the view that if orders were made that the legal title in the Suburb E property be transferred to her, she would not require approval from the Foreign Investment Review Board because the property would have been acquired by devolution by operation of law. The various sections of the Foreign Acquisitions and Takeovers Act 1975 (Cth) and Guidance Notes will not be repeated here.
The single expert opined, and I find:
The [Country G] courts will recognise and enforce monetary judgments made by a superior court which are final and conclusive. The Federal Circuit and Family court of Australia (Division 1) being a superior court, may have its final orders registered pursuant to the Reciprocal Enforcement of Foreign Judgments Act 1959 or pursuant to the Maintenance Orders (Reciprocal Enforcement) Act 1975 in relation to maintenance orders of which Australia is a reciprocating country.
The wife identifies that she does not seek a monetary judgment in this forum.
The wife submitted that it is uncertain whether a judgment and orders from Country G would be enforceable in Australia. She said that the judgment from Country G may not be enforceable in Australia by way of the Foreign Judgments Act 1991 (Cth) if made by the Family Courts because it is not a superior court. As I understand it, she concedes that a judgment of the High Court of Country G may be enforceable. This factor will depend on the character of the order and the Court in which it is made.
The husband cited Yadu & Orgit [2022] FedCFamC1A 79 for the proposition that foreign orders could be enforced in this forum, despite there being a permanent stay of these proceedings.
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.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 27 November 2024
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