Ferrier-Watson v McElrath
[2000] FamCA 219
•24 March 2000
[2000] FamCA 219
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No. ALE 7 of 1999
EA 40 of 1999
AT SYDNEY File No. SY 10032 of 1997
BETWEEN:
BEVERLEY FLORENCE FERRIER-WATSON
Applicant/Appellant Wife
- and -
DENNIS ALLAN McELRATH
Respondent Husband
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: Finn, Holden and Jerrard JJ.
DATE OF HEARING: 9 and 10 August 1999
DATE OF JUDGMENT: 24 March 2000
Appearances:
Ms. Cotter-Moroz and Mr. Ash of Counsel (instructed by Ramrakha Jenkins, Solicitors, of Second Floor, 64 Castlereagh Street, Sydney, NSW 2000) on behalf of the Appellant Wife.
Mr. Connor of Counsel (instructed by Abbott Tout, Solicitors, of Level 42, MLC Centre, 19 - 29 Martin Place, Sydney, NSW 2000) on behalf of the Respondent Husband.
APPEAL SUMMARY
MATTER: FERRIER-WATSON and McELRATH
NUMBER: EA 40 of 1999, ALE 7 of 1999 (SY 10032 of 1997)
CORAM: Finn, Holden and Jerrard JJ.
DATE OF HEARING: 9 and 10 August 1999
DATE OF JUDGMENT: 24 March 2000
CATCHWORDS: JURISDICTION OF THE FAMILY COURT - FORUM - Henry v. Henry (1996) 185 CLR 571 - "clearly inappropriate forum" - DOMICILE
This was an appeal by the wife from an order made by Moss J. on 29 April 1999 pronouncing a decree nisi of dissolution of the marriage of the parties. The wife also appealed against a declaration made by the trial Judge that the husband was domiciled in Australia as at the date he filed his Form 4 application for divorce, and also against orders dismissing her application that the husband's application for dissolution of marriage be dismissed or permanently stayed, and an order that the wife pay the husband's costs of the proceedings.
On 15 September 1998 the husband filed in Australia an application for divorce. On 30 October 1998 the wife filed a Response objecting to jurisdiction, and an application in Form 8 seeking the dismissal of the husband's application for a divorce, a declaration that the husband was domiciled in Fiji at the date of that application, and in the alternative (in the event the Court determined it had jurisdiction to determine the husband's application), a permanent stay of proceedings in this Court on that application.
The evidence in relation to the husband's domicile was that he is a United States citizen, and holds a valid US passport. Since 1970 he has lived in Fiji, where he married the wife on 4 October 1970. The parties have two children, M born 28 January 1973, and C born 4 January 1974. The wife lives in Fiji, and is a citizen of that country. In late 1993, the parties were in disagreement about their children's futures, and the husband ceased to live in the family home. He stayed elsewhere in Fiji, and in September 1994 began sharing a residence in Lautoka, Fiji with his present partner.
The husband visited Australia about 100 times between 1990 and 1998. On 14 September 1998, he took a four months' lease of a residence in Sydney, and in November 1998 obtained a six month extension. In an affidavit sworn for the purposes of the proceedings before the trial Judge, the husband attested to an intention to buy his own residence when able to, and to an intention that Australia be his permanent home. The husband's new partner and her son live with him in Sydney. The husband's various incoming passenger arrival cards showed USA and Fiji as his country of residence. In his application for divorce, however, the husband ticked the boxes appropriate for a declaration that he regarded Australia as his home, and intended to live permanently in this country. He had a New South Wales driver's licence.
The wife commenced proceedings in the High Court in Fiji on 29 August 1997, seeking orders for judicial separation and a property settlement. After service upon her of the husband's present application for a divorce, followed by service of the notice of discontinuance of the application for a review, she instituted proceedings by summons dated 23 November 1998 in the High Court in Fiji seeking, inter alia, a declaration that the husband was domiciled in Fiji, and a Mareva injunction. On 19 February 1999, the High Court in Fiji made Orders and Directions in those proceedings.
Her affidavit evidence before the learned trial Judge was that she did not seek herself a divorce in Fiji, as opposed to a decree of judicial separation, because of an apprehension of social stigma in Fiji attaching to her as an applicant for divorce. She gave evidence that she would not oppose any application for divorce which the husband might make in Fiji on the ground of a five year separation. There was conflicting evidence before the trial Judge about the effect which the granting of an Australian divorce would have on the wife's property settlement proceedings in Fiji.
The trial Judge noted that as the husband was neither an Australian citizen, nor had ordinarily resided in this country for one year immediately preceding the date of his application, he was required to prove that he had an Australian domicile on the date his application was filed. His Honour said that the husband had to prove on the balance of probabilities that while present in Australia, he formed the intention to make his home permanently in this country. His Honour then found that the husband had such an intention. Thus he found the husband to be domiciled in Australia and therefore entitled to apply for a divorce here. His Honour also found that Australia was not a clearly inappropriate forum for the conduct of the husband's dissolution proceedings and accordingly refused to stay those proceedings.
The wife's first main ground of appeal was that the trial Judge had applied an incorrect test to determine if domicile in Australia was established. In support of this ground, Counsel for the wife submitted that at common law, three matters were essential for the establishment of a domicile of choice, namely the capacity to do so, residence in that domicile of choice, and the intent necessary to make that residence one's domicile. The wife conceded that the husband at all relevant times did have the requisite capacity, and that it was open to the trial Judge to find that the husband had formed the requisite intention. Nonetheless, the wife argued that his Honour had failed to find, as required, that the husband had established a residence or resided in this country as at the date he filed his application for divorce (which finding was necessary to support a finding of domicile). Further, the wife argued, on the basis that Australia was a "clearly inappropriate forum", that the trial Judge erred in refusing to grant her application for a stay of the proceedings for a decree nisi for dissolution of the marriage.
HELD, per curiam, in dismissing the appeal in relation to the trial Judge's declaration as to the husband's domicile:
The Domicile Act is not a Code, and the common law applies as modified by that Act.
Residence for some period in a place or State can be an outward manifestation of a sufficient appearance of regarding that State as providing a permanent home. In the Full Court's view, the references to residence in the authoritative decisions to which it was taken were made in the context of the necessary proof of the required intention. The intention which the common law required to establish a domicile of choice was the voluntary fixing of a person's residence in a particular place with the intention of continuing to reside there for an unlimited time: Udny v. Udny [1866-75] LR 1SC 442 at 458. Domicile of choice was then the inference derived from that fact.
Residence in a country should be understood as the best, or very good, evidence of the required intention, but it is not the only means of proving or establishing it. It can be inferred amongst other things from the nature of the departure from another country, and the circumstances of the arrival in what is intended to be a new one.
HELD, per Holden and Jerrard JJ., allowing the appeal in relation to the wife's stay application, and re-exercising the discretion and granting the wife's stay application:
The trial Judge correctly identified the question for determination as being whether the Family Court of Australia was a clearly inappropriate forum for the determination of aspects of the parties' controversy involving their marital relationship. His Honour referred to the fact that there was but one divorce application on foot, being the one in this Court, the fact that the husband had given an undertaking to submit to the jurisdiction of the High Court in Fiji in the wife's property proceedings therein, and to the wife's having made a late undertaking not to oppose an application by the husband for a divorce in that Fijian Court. His Honour applied the test laid down in Henry (at CLR p. 587) as to whether this Court was a "clearly inappropriate forum", namely to determine whether or not a continuation of the proceedings in this Court would be oppressive in the sense of "seriously and unfairly burdensome, prejudicial and damaging", or vexatious in the sense of "productive of serious and unjustified trouble and harassment". His Honour held that a continuation of the proceedings here would not be oppressive or vexatious as described, because he had concluded that granting a divorce in this Court would not have an adverse effect on the continuation of the wife's property proceedings in the Court in Fiji.
It was clear that there was but one dispute between these parties, that being the marital relationship. That matter, with its various facets, was being litigated in Fiji before the husband filed proceedings here. The parties have property in Fiji, including shares in Fijian companies. The question of the husband's domicile is being litigated there, and that litigation was in process when the trial on the husband's application took place in this Court. It was not clear whether the Court in Fiji will be able to avoid having to determine itself the husband's present domicile in any event. The trial Judge and the wife's expert witness appeared to suggest that the Court in Fiji should be invited to declare as to the validity of the orders made here, and any application in those terms must be likely to result in the Fijian Court examining the husband's domicile. This would create the significant risk of orders being made in the two Courts based on inconsistent findings. In addition, the wife is intimately connected to the Fijian jurisdiction, and the husband has many connections with it. The parties married in Fiji and spent their marital years together there. They can participate in that jurisdiction on an equal footing.
The above-mentioned matters were not given adequate weight in the judgment under appeal and they are matters which in combination make this Court a clearly inappropriate forum at this time.
HELD, per Finn J., in dissent on the issue of the wife's stay application:
It was clear on an overall reading of his Honour's judgment that his essential reasons for concluding that the husband's dissolution proceedings in Australia could not be characterised as "being relevantly oppressive nor as being productive of serious and unjustified trouble and harassment" (and thus that Australia was not a "clearly inappropriate forum") were that:
· there was only one application pending for a divorce in circumstances where the husband was apparently the only party who wanted a divorce and where his Honour was satisfied that once the husband had been found by an Australian court to be domiciled here, he could not obtain a divorce in Fiji;
· the husband had undertaken that he would continue to submit himself to the jurisdiction of the Fiji court with respect to the wife's property settlement proceedings; and
· he was not satisfied that the grant of an Australian divorce would have an adverse effect on the continuation of the wife's property settlement proceedings in Fiji.
These were the issues which his Honour apparently considered significant in this case. It was not demonstrated that he was wrong in his identification of these issues and in the weight he placed on them in reaching his decision not to stay the husband's dissolution proceedings. It had also not been demonstrated that the other matters referred to by the High Court majority in Henry but which were not specifically referred to by his Honour would have altered the outcome of this case. Accordingly, the appeal against his Honour's orders dismissing the wife's application for a stay of the husband's dissolution proceedings and against the grant of the decree nisi should be dismissed.
Trial Judge's costs order set aside.
Costs certificates granted to the parties in relation to the costs of the appeal.
REPORTABLE
FINN J.:
INTRODUCTION
By her amended Notice of Appeal (filed on 9 August 1999), the wife, Beverley Florence Ferrier-Watson, appeals Orders 1, 2 and 3 of the orders made by Moss J. on 29 April 1999. By those orders, his Honour:
declared that as at 15 September 1998, the husband, Dennis Allan McElrath, was domiciled in Australia (Order 1);
dismissed both a "response objecting to jurisdiction" filed by the wife on 30 October 1998 and an application also filed by the wife on 30 October 1998 whereby she sought (amongst other things) that the husband's application for dissolution of marriage be dismissed or that the dissolution proceedings be permanently stayed (Order 2); and
granted a decree nisi of the parties' marriage (Order 3).
To the extent that leave may have been necessary to appeal Order 2 of his Honour's orders, there was no contest before us to such leave being granted.
The wife also appeals an order subsequently made by Moss J. on 30 June 1999, whereby the wife was required to pay the husband's costs of the proceedings before Moss J. which resulted in the making of the orders described in paragraph 1 above.
The background history to these proceedings is set out in the joint judgment of Holden and Jerrard JJ., and it is unnecessary for me to repeat that history.
APPEAL AGAINST THE DECLARATION AS TO THE HUSBAND'S DOMICILE
I agree with the conclusion of Holden and Jerrard JJ. that the appeal against Moss J.'s order (Order 1) declaring that as at 15 September 1998 the husband was domiciled in Australia should be dismissed, and I do so largely for the reasons given by their Honours.
THE APPEAL AGAINST THE REFUSAL TO STAY THE DISSOLUTION PROCEEDINGS AND THE GRANT OF THE DECREE NISI
However, unlike their Honours, I am not satisfied that Moss J. erred in refusing to stay the husband's application for a decree nisi of dissolution of marriage and in then proceeding to grant that decree.
The reasons of the trial Judge
At an early point in his reasons for judgment, Moss J. made the following findings regarding the proceedings which had already been initiated in Fiji by the wife when the husband filed his relevant application for divorce in Australia, which was on 15 September 1998:
"10.The [wife] initiated proceedings in Fiji in 1994 seeking spousal maintenance from the [husband] and subsequently in such proceedings Orders were made by the Court in Fiji on 10 April 1997 that the [husband] pay spousal maintenance to the [wife] at the rate, in the local currency, of $500 per week. This Order is still in force and there is evidence that the [husband] has from time to time been in arrears with relevant payments.
11.More importantly, in the present context, the [wife] has issued proceedings against the [husband] under the Matrimonial Causes Act of Fiji. Those proceedings comprise a petition for judicial separation and she also seeks Orders in respect of the parties' property. Those proceedings were commenced by the [wife] in August 1997 prior to the commencement of the [husband's] earlier and current proceedings in this Court."
His Honour then went on to make the following comments, which as he himself noted, are important:
"11. … It is important to note, in my opinion, that the [wife] has not sought an Order for dissolution of marriage in her proceedings in Fiji. The evidence before me makes it clear that this is a conscious decision on the part of the [wife]. The result is that there is no competing application before the Courts in Fiji. As the Matrimonial Causes Act of Fiji makes clear, proceedings for a Decree of Dissolution of Marriage can be instituted only by a person domiciled in Fiji. Thus a finding that the [husband] has acquired an Australian domicile would mean that he has no status to approach the Courts in Fiji seeking dissolution of the marriage in that country."
In his subsequent discussion (from paragraph 15 of his reasons onward) of the wife's application for a permanent stay of the husband's divorce proceedings, and having referred first to his own unreported decision in the matter of Gilmore (30 June 1992), Moss J. moved to a consideration of the High Court decision in Henry (1996) 185 CLR 571. In relation to Henry, his Honour first provided a summary of the facts in that case (paragraphs 17-18 of his reasons) and then (in paragraph 19 of his reasons) set out the following observations which his Honour considered important and relevant to the matter with which he was dealing from the joint judgment of Dawson, Gaudron, McHugh and Gummow JJ. (185 CLR 571 at 591 – 592):
“Proceedings between husband and wife with respect to the marital relationship
If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.
Although the appellant first brought proceedings against the respondent in Monaco for judicial separation and, only later, commenced proceedings for divorce, both proceedings were, in essence, proceedings with respect to their marital relationship. Clearly, it was the same marital relationship which was the subject of the divorce proceedings brought in Australia by the respondent. And although it may not be quite so clear, the property proceedings instituted by the respondent in the Family Court are but an aspect of his controversy with the appellant as to their marital relationship. It may have been otherwise if they were no longer married, but so long as their marriage subsists, their dispute with respect to property is a dispute as to the rights and obligations arising out of their marital relationship and those which should attend its dissolution. As such, it is properly to be seen as part of the controversy with respect to that relationship.
Considerations relevant to a stay of proceedings between husband and wife with respect to their marital relationship
Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. [50] As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy.
Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.”
Moss J. then (in paragraph 22 of his reasons) referred to the following three matters in relation to the present case and which he saw as constituting "significant differences" between it and the factual situation in Henry:
(1)that there was only one divorce application on foot, being the proceedings before him, and he thus concluded that there was "no competing application" in this regard in the High Court in Fiji;
(2)that the husband had given an undertaking that he would continue to submit himself to the jurisdiction of the High Court in Fiji in respect of the wife's property settlement proceedings in that court; and
(3)that the wife had adopted ("although very belatedly") the position that she would not oppose a divorce application made by the husband in Fiji on the ground of five years' separation.
In relation to the third matter, his Honour commented: "… its significance is not impaired by the fact that in the light of the finding as to the [husband's] domicile in the present proceedings" (that is, his Honour's finding that the husband was domiciled in Australia) "he could not bring such a proceeding in the High Court in Fiji".
His Honour then said (in paragraph 23 of his reasons) that taking the above three matters into account, and subject to the wife's submissions as to the impact, if any, that an Australian decree of dissolution would have on her property settlement proceedings in Fiji, the question was whether the Australian court was "a clearly inappropriate forum" for the husband's application for divorce.
In order to answer this question, his Honour said (in paragraph 24 of his reasons) that he considered it "helpful to return to Henry, and in particular to the following passage from the majority judgment (which comes at an earlier point in that judgment than the passages quoted above in paragraph 9 above) (185 CLR 571 at 587):
"In Voth [(1990) 171 CLR 538 at 564-565], this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, 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 (1988) 165 CLR 197 at 247]. It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, "the discussion by Lord Goff in Spiliada [[1987] AC 460 at 478] of relevant 'connecting factors' and 'a legitimate personal or juridical advantage' provides valuable assistance" [Voth (1990) 171 CLR 538 at 564-565]. In this regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being "where the case maybe tried 'suitably for the interests of all the parties and for the ends of justice' "[Spiliada [1987] AC 460 at 482, quoting Sim v Robinow (1892) 19 R 665 at 668, per Lord Kinnear]."
His Honour then (in paragraph 25 of his reasons) expressed the opinion which he stated to be subject to his consideration of the wife's further submissions concerning the impact of the grant of an Australian divorce on her property settlement proceedings in Fiji, that the continuation of the husband's proceedings in this Court could not "be characterised as being relevantly oppressive nor as being productive of serious and unjustified trouble and harassment".
His Honour then added (in paragraph 25 of his reasons):
"If the determination of the property proceedings by the High Court in Fiji, as distinct from this Court, is viewed by the [wife] as a "legitimate personal or juridical advantage" that advantage is not likely to be lost, particularly given the [husband's] undertaking. In any event, it would not necessarily follow at all, in my opinion, that merely because this Court grants a decree dissolving the marriage, it would subsequently allow the [husband] to have the property proceeding adjudicated in this Court in the face of a claim by the [wife] that in respect of those proceedings this forum is a clearly inappropriate one."
His Honour then (in paragraphs 26-34 of his reasons) turned to the question of the impact of the grant to the husband of a divorce in Australia on the wife's property settlement proceedings in Fiji. In this context, he first set out (in paragraph 26 of his reasons) the provisions of ss.92(1) and (5) of the Matrimonial Causes Act of Fiji which provide for the recognition in Fiji of divorces granted in a foreign country.
He then (in paragraph 27 of his reasons) referred to the fact that each party had adduced evidence as to the "relevant operation of the Fiji statute" in the event that he was to make a decree of dissolution, and that a Mr Patel (a barrister and solicitor practising in Fiji) had given evidence for the husband that the making of such a decree would have no adverse effect on the continuation of the wife's property proceedings in Fiji.
Then in relation to the evidence of the wife's expert witness, Dr Sahu Khan (also a barrister and solicitor practising in Fiji), his Honour recorded (in paragraphs 28-29 of his reasons) that Dr Sahu Khan when he had given evidence in earlier dissolution proceedings in this Court appeared to have been of the same opinion as Mr Patel, but that in his oral evidence in the hearing before his Honour, Dr Sahu Khan "appeared to adopt a markedly different position". According to his Honour, that position "if accepted, would entail holding that s.92 is incapable of having any operation in respect of pending proceedings in the Fiji High Court in circumstances where the pending application is for Orders for judicial separation and property settlement" (which is the present case). In relation to this proposition, his Honour commented that "[it] will be immediately evident from a reading of the relevant portions of s.92 that no such limitation is implied in such material".
However, notwithstanding that last comment, his Honour went on to endeavour to explain the basis of the proposition contended for on behalf of the wife, being that if a divorce was granted in Australia, that would remove any basis on which the wife could continue to seek a judicial separation and thus, it would seem, property settlement orders, in Fiji. (It is unnecessary for me to refer to his Honour's explanation in this regard.)
His Honour went on to comment (in paragraphs 32-33 of his reasons) that even if this construction of the Fijian statute (contended for by the wife) was correct, it seemed to him that the problem could be overcome by the wife amending her proceedings in Fiji to seek, in lieu of a decree of judicial separation, a declaration of the validity of any decree of dissolution granted by an Australian court. His Honour further commented that such an amendment may, in any event, be necessary in order to have notice of the Australian decree brought before the Fijian court.
Shortly thereafter, his Honour concluded his reasons saying in relation to the stay issue:
"For the reasons given above the [wife's] application for a stay of the divorce proceedings must be refused".
Some preliminary matters
Before I consider the grounds of the wife's appeal against his Honour's refusal to grant a stay of the husband's dissolution proceedings, it will be useful to dispose of a couple of matters which were the subject of some controversy before us and which are important, in my view, to an understanding of his Honour's reasons for refusing to stay the husband's proceedings for an Australian divorce.
First, there was an issue before us as to whether or not it was common ground before his Honour that if the husband was found to have acquired an Australian domicile (by an Australian court for purposes of dissolution proceedings before it), he would have no status to obtain a divorce in Fiji. Whatever may have been the position of the parties or their representatives or their experts before his Honour, it is clear from a reading of paragraphs 11 and 22 of his Honour's reasons (see paragraphs 8 and 10 of this judgment) that his Honour was satisfied that once the husband was found to have an Australian domicile (as his Honour had so found), he could not bring proceedings for dissolution of the marriage in Fiji. None of the wife's grounds of appeal (which are set out below in paragraph 26) appear to challenge this finding by his Honour. For my own part, I have some reservations regarding the emphasis which his Honour placed on his own finding as to the husband's domicile. I will return to that matter at the conclusion of these reasons.
There was also an issue before us as to whether his Honour had actually made a finding on the important question of whether the grant of a divorce to the husband in Australia would have any adverse impact on the continuation of the wife's property settlement proceedings. It can, in my view, readily be implied from a reading of his Honour's reasons that while the evidence of the husband's expert that there would be no adverse impact was perfectly clear, his Honour considered that the evidence of the wife's expert (to the extent that it supported the contrary position) was far from satisfactory. In these circumstances, and bearing in mind that it was the wife who bore the onus of establishing that a stay should be granted, his Honour was in my opinion (and subject to matters raised on the appeal which I have yet to discuss) entitled to refuse the stay.
I consider it unnecessary to comment on the opinions expressed by his Honour (in paragraphs 32 and 33 of his reasons) in relation to alternate courses that might be open to the wife in the event that the grant of an Australian divorce would prevent her continuing her proceedings for judicial separation and property settlement in Fiji. At best these opinions expressed by his Honour (if correct) provide support for his effective conclusion that it had not been established that an Australian divorce would have an adverse impact on the wife's proceedings in Fiji. They do not undermine his essential conclusion.
The grounds of appeal relating to the refusal to grant the stay
The wife relies on the following four grounds of appeal in support of her appeal against his Honour's order dismissing her application for a stay of the Australian proceedings:
"5. That his Honour erred in failing to permanently stay the husband's application for dissolution of marriage on the grounds that it constituted an abuse of process in that Australia was at all material times a clearly inappropriate forum.
6.That his Honour erred in law in determining that since the wife had only sought judicial separation and property settlement, and has not sought an order for dissolution of marriage in her proceedings in Fiji, that there is no competing application before the Courts in Fiji.
7.That his Honour erred in law in the exercise of his discretion not to grant a stay, in failing to give any or any adequate consideration to the effect of a decree of dissolution by the local forum on the maintenance orders in favour of the wife made by the Fiji Court.
8.That his Honour erred in the exercise of his discretion not to grant a stay in that his Honour failed to take into account relevant considerations and/or gave grossly inadequate weight to other relevant considerations and/or gave weight to irrelevant considerations and/or mistook the facts or misunderstood the significance of certain facts established by the evidence as to:
(i)the jurisdiction of the Australian and Fijian Courts with respect to the parties and their marriage;
(ii)the recognition by the Australian and Fijian Courts of each other's orders and decrees;
(iii)the relative ease of enforcement, by the other forum, of orders made by either the Australian or Fijian Courts;
(iv)the forum which can provide more effectively for the complete resolution of the matters involved in the parties' controversy;
(v)the order in which proceedings were instituted;
(vi)the stages which various proceedings in Australia and Fiji have reached;
(vii)the costs that have been incurred in relation to proceedings in Australia and Fiji;
(viii)the connection of the parties and their marriage with Australia and Fiji;
(ix)the issues on which relief depends in Australia and Fiji;
(x)the legitimate personal or juridical advantage to the [wife] in having the Fijian Courts determine her property proceedings is not likely to be lost given the [husband's] undertaking to this Court to submit himself to the jurisdiction of the Fijian Courts."
Submissions in support of the grounds
These four grounds are, in my view, not as clearly drafted as perhaps they might have been. However, their essence would seem to be contained in the following four paragraphs from the written Summary of Argument of Counsel for the wife:
"4.2 A stay should be granted when 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: Henry supra.
4.3Henry (at p 591-92) is authority for the proposition that proceedings between husband and wife with respect to their marital relationship will ordinarily be concerned with the same controversy. This will be so even if the proceedings seek inconsistent remedies or outcomes. Further, that proceedings for judicial separation and dissolution are, in essence, proceedings with respect to the marital relationship. His Honour's finding that there is no competing application (AB1 p 17, paragraph 22) failed to take this into account and was erroneous.
4.4The majority in Henry (at 592-93) set out a non-exhaustive list of the matters to be considered relevant to a stay of proceedings between husband and wife with respect to their marital relationship. His Honour did not give due consideration or proper weight to the evidence in relation to these matters. His Honour ought have considered each of these matters, despite his Honour's findings (AB1 p17 paragraph 22) of certain significant differences between the present case and the factual situation in Henry.
4.5In addition to the three factual differences identified by his Honour (AB1 p 17 paragraph 22), the only other matters which his Honour appeared to have considered was whether there would (sic) any impact on the wife's property proceedings on Fiji if a decree of dissolution was granted by the court (AB1 from paragraph 26 on p18 - paragraph 34 on p 20). However, His Honour did not give any consideration to the impact of a decree of dissolution on the maintenance orders in favour of the wife made by the Fiji Court."
Discussion of the wife's submissions
The first of the above submissions (which would appear to be made in support of the first of the relevant grounds of appeal) does not, in my view, advance the wife's case. It is simply a re-statement of the statement made by the majority in Henry (quoted in paragraph 24 of his Honour's judgment and in paragraph 14 of this judgment) as to the appropriate test in determining whether to grant a stay of Australian proceedings in cases such as the present. Furthermore, it was a test which his Honour certainly purported to apply, and which, subject to the issue of the impact of an Australian divorce on the wife's property settlement proceedings in Fiji, he expressly found had not been met (see paragraph 25 of his reasons and paragraph 15 of this judgment).
As to the assertion (contained in the second of both the above grounds and submissions) that his Honour erred in his statement (made in both paragraphs 11 and 22 of his reasons) that there was "no competing application" in the Fijian court to the Australian dissolution application, it is true that the majority judgment in Henry (in the first two paragraphs of the passage quoted in paragraph 19 of his Honour's judgment and in paragraph 9 of this judgment) makes it clear that in cases (such as the present where a stay is sought of Australian proceedings where there are foreign proceedings pending) it is not necessary that an identical form of relief be sought in both the Australian and the foreign proceedings, but rather that both proceedings are "in essence, proceedings with respect to [the parties'] marital relationship".
However, it is difficult to imagine, given his Honour's close analysis of the decision in Henry, that he would have overlooked the point made (as it is over two paragraphs) in the High Court majority decision that it is not necessary that the Australian and the foreign proceedings be identical. Rather, it seems to me that his Honour intended to, and did in fact, place weight on the fact that there was no application for divorce on foot in Fiji. This was clearly an issue of significance to his Honour given the stress that he had earlier placed (in paragraph 11 of his reasons and see paragraph 8 of these reasons) on the fact that the wife had not sought a divorce in Fiji and on the finding that the husband, if found to be domiciled in Australia, would not be able to do so. Given these two matters, it is understandable that his Honour attached weight to the fact that in all the various proceedings between this married couple, there was only one application for dissolution of their marriage, being the one in Australia brought by the husband (who was the only one of the parties who apparently had an interest in having the marriage dissolved).
But even if I am wrong in my interpretation of his Honour's reasons and of the apparent significance which he placed on the fact that there was only one dissolution application pending, with the result that his Honour's finding that there was "no competing application" is in fact erroneous when read in the light of the majority decision in Henry, that consideration would not, at least by itself, be a sufficient reason for allowing this appeal. I say this because, in my view, there is nothing in the High Court decision which requires that where there are foreign proceedings pending, and proceedings in an Australian court are subsequently commenced with respect to "the same controversy", that the Australian proceedings must automatically be stayed - although it is clearly a very significant factor in favour of the grant of a stay. In relation to this issue of the commencement of proceedings in Australia in circumstances where proceedings are pending in a foreign court with regard to the same controversy, the High Court majority in Henry said as follows (at 591):
"It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue [See Moore v Inglis (1976) 50 ALJR 589; 9 ALR 509 and, on appeal, (1976) 51 ALJR 207]. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries [See McHenry v Lewis (1882) 22 Ch D 397; Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225; Hyman v Helm (1883) 24 Ch D 531; Cohen v Rothfield [1919] 1 KB 410; Ioanian Bank Ltd v Couvreur [1969] 1 WLR 781; [1969] 2 All ER 651; cf Australian Commercal Research & Development Ltd v ANZ McCaughan Merchant Bank Ltd [1989] 3 All ER 65], the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
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."
With respect to the complaint made on behalf of the wife that his Honour did not give any consideration to the impact of a decree of dissolution on the maintenance orders in favour of the wife made by the Fiji court (Ground 7 and paragraph 4.5 of the Summary of Argument), it needs to be noted that his Honour did, in outlining the history of the proceedings in Fiji, refer to the existence of the maintenance orders, and to the fact that payment had been in arrears from time to time (see paragraph 10 of his reasons quoted in paragraph 7 above). It is true that his Honour did not refer again in his reasons to these matters. However, we were not taken to any material which would establish what impact, if any, these matters would have had on the decision whether or not to grant a stay. Accordingly I do not consider this ground of appeal to have been established.
Finally, there is the complaint (contained in Ground 8) that his Honour failed to give either consideration or proper weight to the "non-exhaustive list" of matters which the majority in Henry considered relevant to a stay of proceedings between husband and wife with respect to their marital relationship. It was submitted in support of this ground that in addition to the question of the impact on the wife's property settlement proceedings in Fiji of an Australian divorce, the only matters which his Honour took into account were the three matters which he saw as differentiating this case from Henry (being that there was only one divorce application on foot; that the husband had given an undertaking that he would continue to submit himself to the jurisdiction of the Fiji court with respect to the wife's property settlement proceedings; and that she would not oppose a divorce application made by the husband in Fiji on the ground of five years' separation).
Again it is true that his Honour did not list and discuss all of the matters to which the High Court majority drew attention in the last two paragraphs of the passage from their judgment quoted in paragraph 9 of this judgment. However, his Honour did include those paragraphs in his own judgment (at paragraph 19), and so it must be assumed that he was mindful of those matters in preparing his judgment. Moreover, in my view, it cannot be asserted that there was necessarily any obligation on the trial Judge to consider expressly each of the matters referred to by the High Court majority. Rather, as was said by the majority in Henry (at 593), "the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved". Certainly the list of factors provided by the High Court provides great assistance in identifying relevant factors to be taken into account when deciding whether or not to grant a stay, and there would as a general rule be value in trial judges addressing those matters, provided of course those matters are relevant and there is evidence about them.
It is somewhat puzzling as to why his Honour considered it necessary to distinguish the facts of this case from those in Henry and then to place the weight which he seems to have done on the points of difference. However, I do not consider that that approach ultimately undermined his judgment.
It is clear to me on an overall reading of his Honour's judgment that his essential reasons for concluding that the husband's dissolution proceedings in Australia could not be characterised as "being relevantly oppressive nor as being productive of serious and unjustified trouble and harassment" were that:
· there was only one application pending for a divorce in circumstances where the husband was apparently the only party who wanted a divorce and where his Honour was satisfied that once the husband had been found by an Australian court to be domiciled here, he could not obtain a divorce in Fiji;
· the husband had undertaken that he would continue to submit himself to the jurisdiction of the Fiji court with respect to the wife's property settlement proceedings; and
· he was not satisfied that the grant of an Australian divorce would have an adverse effect on the continuation of the wife's property settlement proceedings in Fiji.
These were the issues which his Honour apparently considered significant in this case. I am not satisfied that he was wrong in his identification of them and in the weight he placed on them in reaching his decision not to stay the husband's dissolution proceedings. It has also not been demonstrated to my satisfaction that the other matters referred to by the High Court majority (and listed in the wife's final ground of appeal) but which were not specifically referred to by his Honour would have altered the outcome of this case. Accordingly, I would dismiss the appeal against the relevant orders, being Orders 2 and 3 of 29 April 1999.
Before concluding, there is one matter that I consider requires mention. The hearing before Moss J. and indeed his Honour's reasons seem to have proceeded on the basis that he should first make a finding as to whether or not the husband was domiciled in Australia and if he so found, then he should consider whether a stay should be granted on the basis that Australia was "a clearly inappropriate forum". In this regard at the commencement of his reasons for judgment (paragraph 2), his Honour recorded the fact that on 30 October 1998 the wife had filed an application seeking a declaration that the husband was domiciled in Fiji at the date of filing his application for a dissolution (in Australia) and that in the event a finding was made that the husband was domiciled in Australia at the relevant date, then the wife sought to have the dissolution proceedings permanently stayed. This was certainly the alternative nature of the relief sought in the wife's application filed on 30 October 1998 (see at Appeal Book p.63) and which was re-stated in the written submissions of her Counsel provided to his Honour at the conclusion of the hearing (see Appeal Book p.182).
It will be recalled that subsequently in two places in his reasons (at paragraphs 11 and 22), his Honour referred to the fact that a finding that the husband had acquired an Australian domicile would mean that he had no status to approach the courts in Fiji for a dissolution of his marriage. It seems clear that his Honour then relied on this matter as a reason for concluding that Australia was not a clearly inappropriate forum for the determination of the husband's dissolution application (see paragraphs 22-25 of his reasons).
Although a finding that an applicant for divorce is domiciled in Australia is a necessary preliminary finding for the grant of a divorce (if that is the head of jurisdiction relied on by the applicant) by the Australian court, there must, in my view, be some question as to whether such a finding can be made as a declaration (as his Honour indeed purported to do in Order 1 of his Orders of 29 April 1999) on its own, separate and apart from the grant of the decree nisi. I say this because there is no provision in the Family Law Act 1975 for the making of declarations as to domicile, nor is there any general power to make declarations, with the only provisions for declarations being under s.78 (existing title or rights in respect of property) and under s.113 (validity of marriages, dissolutions or annulments). (See in this regard Duroux v Martin (1993) FLC 92-432 at 80,406.).
Thus, if the finding of an Australian domicile is but one aspect of the determination of the dissolution proceedings and with no independent standing of its own, there would seem to be an issue as to whether the effect of that finding on the husband's status to bring dissolution proceedings in Fiji could provide a reason for staying the Australian dissolution proceedings. In other words, the Australian proceedings may need to have been determined before reliance could be placed on the effect in Fiji of one of the findings necessary for that determination. It may be therefore that the issue of the husband's domicile, while of course relevant to his status to bring dissolution proceedings in Fiji, was incapable of being a consideration in the determination of the application to stay the Australian proceedings.
But even, if for the reasons just discussed, his Honour was wrong to have regard to the effect of his finding of an Australian domicile on the husband's standing to apply for a divorce in Fiji, the balance of his reasoning for refusing the stay (which I summarised in paragraph 36 above) would, in my view, support his refusal to grant the stay.
COSTS MATTERS
Given that Holden and Jerrard JJ. would allow the appeal against Orders 2 and 3 of his Honour's orders of 29 April 1999, I would agree with them that in those circumstances the appeal against his Honour's costs order of 30 June 1999 should be allowed.
Again, given the result of these appeals, I agree with their Honours' proposed orders in relation to the costs of the appeals.
HOLDEN AND JERRARD JJ.:
This appeal is by the wife, Beverley Florence Ferrier-Watson from an Order made on 29 April 1999 pronouncing a Decree Nisi of dissolution of the marriage of the appellant and Dennis Allan McElrath, which marriage took place on 4 October 1970 at Nadi in Fiji. The substantive Orders sought in the Amended Notice of Appeal filed by leave on 9 August 1999 seek the setting aside of the Decree Nisi and certain other Orders made on 29 April 1999, the setting aside of a subsequent Order for costs made on 30 June 1999, a declaration that the husband was domiciled in Fiji on 15 September 1998, and the dismissal of the husband's application for divorce.
That declaration sought from this Court is explained in part by certain of the Orders of the learned trial Judge made 29 April 1999, which were as follows:
"The Court orders -
1.That it be declared that as at 15 September 1998 the Applicant was domiciled in Australia.
2.That each of the two applications filed herein by the Respondent on 30 October 1998 be dismissed.
3.That in respect of the Applicant's application for dissolution of marriage filed herein on 15 September 1998 there be a declaration pursuant to s 55A of the Act that there are no relevant children and that there be pronounced a decree nisi of dissolution of marriage in respect of the marriage of the parties".
The Orders made referred to the wife's application of 30 October 1998 because on that date she filed a Response objecting to jurisdiction (AB 60), and an application in Form 8 (AB 62) seeking the dismissal of the husband's application for a divorce, a declaration that the husband was domiciled in Fiji at the date of that application, and in the alternative a permanent stay of proceedings in this Court on that application. This last Order was sought should the Court find that it had jurisdiction to hear the husband's divorce. For good measure, the wife's application of 30 October 1998 contended that the husband was bound by "the finding he is not domiciled in Australia and this Court has no jurisdiction in the matter".
This last contention was a reference to the husband having attempted unsuccessfully to divorce the wife in earlier proceedings in the Court. Those proceedings were instituted by an application the husband filed on 9 December 1997. On 4 February 1998 and 14 June 1998 respectively, the wife filed the like objections to jurisdiction and applications for dismissal as she did in these subsequent proceedings on 30 October 1998. Reasons for judgment were published on 12 August 1998 and the application was dismissed. The application was dismissed because Loughnan JR found that the husband had not established that he had an Australian domicile on 9 December 1997 (AB 158). Since the husband was neither an Australian citizen nor had been ordinarily resident in this country for one year immediately before that date, s. 39(3) of the Family Law Act 1975 meant that the husband was not entitled to institute those proceedings under the Act. Loughnan JR made a further finding that the husband, who had a domicile of origin in the USA, had acquired a domicile of choice in Fiji in 1970-71, or at some time soon thereafter (AB 155) and that if that domicile of choice in Fiji had subsequently been lost, it had in any event been re-acquired prior to 9 December 1997 (AB 157).
On 18 August 1998, the husband filed an application for a review of the Orders and Reasons of Loughnan JR, which Orders and Reasons were part of the Appeal Book in this matter. On 14 October 1998, the husband purported to file, without leave, a notice of discontinuance of that application for review. Leave to discontinue was granted by Loughnan JR on 10 November 1998. The husband pursued instead his fresh application for a divorce filed 15 September 1998, the subject of these proceedings, and filed four (4) weeks after the first one had been dismissed.
THE HUSBAND'S DOMICILE
The evidence relevant to the husband's domicile can be summarised as follows. The husband was aged 65 at the date of the hearing. His evidence was that he is a United States citizen, and holds a valid US passport. He has not lived in that country since 1970, although he has visited there. The visits were primarily for business purposes.
In 1970, he became a member of a USA-based partnership which proposed to develop over a 15 year period, a 625 acre property near Nadi, Fiji as a resort with hotels, a golf-course, a marina, and the like. He entered Fiji for that purpose, with a five (5) year authorisation to reside there as a company director, which authorisation was re-issued, when Fiji achieved independence in 1970, as a three (3) year authorisation. There have been renewals of that authorisation over the years, as the development initially proposed has gone well past the 15 years planned, and a related project has also been undertaken.
The parties married on 4 October 1970 in Nadi, and bought a house on a small acreage at Vuda Point, via Nadi. They had two (2) children, M born 24 January 1973, and C born 4 January 1974. By arrangement, both children were born in the United States, and both held US passports. At the date of the hearing, they lived and worked in Fiji. The wife lived in Fiji, and was a citizen of that country.
The parties continued to live in Fiji after their marriage. They separated for a period in that country in August 1985 and, on the husband's history of events, attempted a reconciliation there in March 1986, and separated again in Fiji in mid-1987. In September 1987, following a May 1987 coup, the wife brought the two children to Australia, and she stayed in this country until early 1988. She then returned to Fiji, where the husband had remained largely because of his business commitments. The children remained in a Sydney boarding school. The parties did not resume cohabitation, but kept separate residences in Fiji.
The husband took a lease of a three-bedroom residence in Kirribilli, Sydney in March 1990, and he intended at that time, to move his residence to this country. He joined the Essington Group of Companies as their executive director, and took steps to obtain approval to work and live permanently in this country. An economic downturn in Australia and Eastern Europe put an end to his plans to work here and in Europe for the Essington Group, and he formally left the Group in 1991. He became involved instead between 1991 and late 1993 in a major project in Fiji, the Sheraton Vomo Island Resort.
He lived at that time either at Vomo Island or in the matrimonial home at Vuda Point with the wife and their children, who had by then finished their schooling in Australia and returned to Fiji.
In late 1993, the parties were in disagreement about their children's futures, and the husband ceased residence at the Vuda Point home. He stayed elsewhere in Fiji, and in September 1994 began sharing a residence in Lautoka, Fiji with a new partner, Ms. Masi and her then two-year-old son, M. The husband puts the date of the parties' separation as being no later than 27 February 1994. His account did not explain his selection of that date.
The wife did not dispute this account in any significant way relevant to the husband's present domicile. On her view, the parties did separate in 1985, but resumed cohabitation that same year, and continued cohabitation until they finally separated on 27 February 1994. They had cohabited in Fiji from early 1991 until then.
The husband has visited Australia a good deal over the years. Paragraph 14 of his principal affidavit, filed 15 January 1999 (AB 67), described twenty visits here in 1990, sixteen in 1991, eight in 1992, twelve in 1993, nine in 1994, twelve in 1995, nine in 1996, eight in 1997, and between six and nine in 1998. On 14 September 1998, he took a four month lease of a residence in Bond Street, Sydney, and in November 1998 obtained a six month extension. He swore to intending to buy his own residence when able to, and to an intention that Australia be his permanent home. Ms. Masi and M live with him in the Bond Street residence, although M did not arrive in Australia until December 1998. The husband and Ms. Masi intend to marry as soon as they legally can. At the date of trial, Ms. Masi was pregnant. Ms. Masi also swore to an intention to make Australia her permanent home (AB 101).
Ms. Masi and the husband arrived in Australia on 8 September 1998, and she departed again on 17 September 1998, having returned to Fiji to be with M, who was still completing his year of school there (AB 426-7). She returned to Australia on 20 December 1998, and her incoming passenger arrival card contained a declaration on it that she intended to stay in this country for two months, and that Fiji was her country of residence (AB 534). These statements were consistent with the incoming passenger arrival card she filled out on 8 September 1998, where she also described Fiji as her country of residence, and an intention to stay in Australia for 25 days (Exhibit 2). In fact, she stayed nine days. The husband's incoming passenger arrival card, completed on 8 September 1998 (Exhibit 2, AB 525), contained the information that he intended to stay here for either one or two months, that the United States was his country of residence, and he was entering as a visitor or temporary resident.
The husband had described Fiji as his country of residence on incoming passenger cards in January 1998, February 1998, May 1998, June 1998, October 1998, and likewise on a departing passenger traveller card on or about 9 December 1998. The cards are reproduced in the Appeal Book between AB517 and AB530. On 4 December 1998, when entering this country, he described his country of residence as the USA (Exhibit 2, AB517). He did not complete the relevant portion of the card on his return here on 20 December 1998 (Exhibit 2, AB 519). In his application for divorce filed in this Court on 15 September 1998 (AB 52), the husband ticked the boxes appropriate for a declaration that he regarded Australia as his home, and intended to live permanently in this country.
His apparently inconsistent description of his country of residence, and intentions as to length of stay in Australia, were, as one would expect, the subject of cross-examination before the learned trial Judge. It appeared the fact that the husband would be moving in and out of whatever country he regarded as his domicile. On the evidence, the husband was lawfully present in this country at all relevant times and, although not holding approved status as a permanent resident, was applying for that status for himself, Ms. Masi and M. He then held a multiple re-entry visa, valid until September 1999. He had a New South Wales driver's licence.
THE WIFE'S PROCEEDINGS IN FIJI
The wife commenced proceedings in the High Court in Fiji on 29 August 1997, seeking Orders for judicial separation and a property settlement. Her evidence was that, when served with the husband's first application for a divorce, filed 9 December 1997 in this Court, she had instructed her Fijian lawyers not to pursue her proceedings in those Courts pending the outcome of the proceedings in the Family Court of Australia. At AB 434, she explained this as partly due to her financial inability to run two proceedings at the same time, and partly from a feeling that the Australian proceedings took precedence. She likewise stayed her hand in the Fijian Courts when served with the application to review the Order of 12 August 1998 of Loughnan JR. After service upon her of the husband's present application for a divorce, followed by service of the notice of discontinuance of the application for a review, she instituted proceedings by summons dated 23 November 1998 in the High Court in Fiji seeking, inter alia, a declaration that the husband was domiciled in Fiji, and a Mareva injunction. On 19 February 1999, the High Court in Fiji made Orders and Directions in those proceedings.
Her affidavit evidence before the learned trial Judge was that she did not herself seek a divorce in Fiji, as opposed to a decree of judicial separation, because of an apprehension of social stigma in Fiji attaching to her as an applicant for divorce. Her position was that she would not raise any objection based on the husband's lack of Fijian domicile to any application by him in the Fijian Court for a divorce. In cross-examination, she announced that she would not oppose a petition for divorce brought by the husband in an appropriate Court in Fiji (AB 457-458). That decision, she said, reflected the fact of their five years of continuously living separately and apart. This would entitle the husband, if domiciled in Fiji, to a divorce in Fiji provided that there was no reasonable likelihood of cohabitation being resumed (s. 14(m) of the Matrimonial Causes Act (Fiji) ("the Fijian Act")). She swore that her opposition to an Order for divorce by this Court was "(b)ecause he is not a resident in Australia", and that she thought "the whole purpose of him coming to Australia is to get this quick divorce" (AB 458).
Neither the summons filed in the Fijian Court nor the directions later given on it were exhibited before the learned trial Judge. However, the written submissions of both parties to the High Court in Fiji on that summons were exhibited before the learned trial Judge, being Exhibit "E-8", at AB 579-591 (wife's written submission dated 5 March 1999), and AB 592-597 (husband's submission dated 18 March 1999). In addition, the wife exhibited (Exhibit "E-10") her affidavit sworn 21 November 1998 in support of her summons dated 23 November 1998 in the Fijian Court, and the annexures to that affidavit filed in the High Court in Fiji (AB 601-709). Those annexures included the careful judgment of Loughnan JR on the husband's first divorce application in this Court. A perusal of Exhibits "E-8" and "E-10" makes it clear that the issue of the husband's domicile is being litigated in the High Court in Fiji.
The argument in the wife's written submission to that Court, in support of her claim for a declaration that the husband has a Fijian domicile, was based principally on the findings of Loughnan JR, and on submissions of res judicata and issue estoppel based on those findings. The only reference to matters of fact as to domicile in that submission was by way of invitation (AB 590) to the High Court in Fiji to adopt the facts found or recited in the judgment of Loughnan JR in this Court. The only reference in her affidavit ("E-10") filed in the High Court to matters of fact concerning the husband's domicile was her sworn statement in paragraph 19 thereof :
"THAT the correspondence between my Solicitors in Sydney and the Respondent clearly indicates that the Respondent intends to live permanently in Australia and in Sydney the Respondent is represented by the Solicitors by the name of Abbott Tout" (AB 603).
Not surprisingly, in this Court both the husband and the learned trial Judge thought this observation supported the husband's claim to an Australian domicile.
THE DECISION ON DOMICILE
The judgment under appeal noted that as the husband was neither an Australian citizen, nor had ordinarily resided in this country for one year immediately preceding the date of his application, he was required to prove that he had an Australian domicile on the date his application was filed (s. 39(3)(b)). In the circumstances, the learned trial Judge directed himself that the husband had to prove:
(O)n the balance of probabilities, that at the time he entered Australia on 8 September 1998, or no later than 15 September 1998 while present in Australia, he formed the intention to make his home indefinitely in this country : Domicile Act 1982, s. 10; Henry v. Henry (1996) 185 CLR 571 at 584-5" (AB 8).
After referring to the evidence, the learned trial Judge held as follows on the issue of domicile :
"There is no evidence of any significance placed before me by the Respondent which diminishes the evidence relied upon by the Applicant. In so concluding I do not overlook the written submissions filed on behalf of the Respondent subsequent to the hearing. Accordingly, I am clearly of the view that the Applicant has proved he arrived here on 8 September 1998 with the firm intention of making this country his home indefinitely and that that has continued to be his intention since then. The fact that his right of residence has been pursuant to conditions limiting his stay here does not prevent him from acquiring a domicile of choice in this country : Lim v Lim and Titcumb [1973] VR 370; and see Hyland v. Hyland (1971) 18 FLR 1, especially at 464-5. I hold that the Applicant was therefore domiciled in this country on the date his application was filed".
That finding was much attacked by the appellant wife. The amended grounds of appeal contended :
"1. That his Honour erred in law in pronouncing a decree nisi of dissolution of marriage in respect of the marriage between the parties, in that his Honour wrongly found that on 15 September 1998 the husband was domiciled in Australia.
2.That his Honour erred in effectively treating s 10 of the Domicile Act 1982 (Clth) as a code regulating the requirements to be considered in determining the acquisition of a domicile of choice, in that his Honour failed to take into account the requirement of residence, which at common law the court is obliged to consider.
3.That his Honour erred in treating Henry v. Henry (1996) 185 CLR 571 as being authority for the proposition that s 10 of the Domicile Act 1982 (Clth) exclusively regulates the requirements to be considered in determining the acquisition of a domicile of choice as referred to in 2 above.
4. That his Honour erred in finding that the applicant has acquired a domicile of choice in Australia as at 15 September 1998 in that his Honour failed to take into account relevant considerations and/or gave grossly inadequate weight to other relevant considerations and/or gave weight to irrelevant considerations and/or mistook the facts or misunderstood the significance of certain facts established by the evidence as to:
(i)the length of the applicant's residence in Fiji when compared to the length of his residence in Australia;
(ii)the nature of the applicant's Australian visa compared with his Fijian visa;
(iii)the applicant's substantial ongoing business interests in Fiji and shareholdings in Fiji when compared with no such interests in Australia;
(iv)the declarations made by the applicant to the Australian Immigration authorities;
(v)the lease entered into by the applicant on 14 September 1998;
(vi)the motivation of the applicant in actions he had taken after 9 December 1997.
(vii)the statements made by or on behalf of the respondent in documents filed in the High Court of Fiji".
No submissions were made in respect of the matters in Ground 4(i) - (iii) inclusive, or (vi) and (vii). The submissions on Grounds 1 - 3 had a common substance and theme namely that the learned Judge had been misdirected as to the law, and had applied an incorrect test to determine if domicile in Australia was established. The submission made conceded that if the test applied was the correct one, then on the evidence led it was open to the Court to find as it did. That concession effectively disposes of Ground 4 and in any event the concession was correct. The trial Judge heard the parties cross-examined in a case in which intent was a critical issue, and he made findings open on the evidence.
The submission on misdirection centred on the proposition that at common law three (3) matters were essential for the establishment of a domicile of choice. These were submitted to be the capacity to do so, residence in that domicile of choice, and the intent necessary to make that residence one's domicile. The submission conceded that the husband at all relevant times did have the requisite capacity, and it was also conceded, albeit reluctantly, that it was open to the learned trial Judge to find that the husband had formed the requisite intention. It was submitted that the Judge had failed to find, as required, that the husband had established a residence or resided in this country as at 15 September 1998, and that such a finding was necessary to support a finding of domicile of choice.
Both Counsel referred to a good deal of authority on this point, and to various of the provisions of the Domicile Act 1982 (Commonwealth). We intend no disrespect to the helpful submissions made when we refer to some only of that authority. We agree with the submission that the Domicile Act is not a Code, and that the common law applies as modified by that Act. This conclusion follows from, inter alia, s. 11 of the Act, which includes the legislative remark :
". . . the rules of common law relating to domicile as modified by this Act . . . ".
We respectfully note that this is also the position described by Dr. Nygh in his work "Conflict of Laws in Australia" (5th ed. at p. 173). However, nothing in the judgment under appeal asserts to the contrary and the submission that the learned Judge treated the Act as a Code depends solely on the submission that the common law required a finding the Judge had not made, namely that the husband had established a residence here as at 15 September 1998.
The learned trial Judge did in fact find, in para. 12 of the judgment under appeal, that the husband :
"has rented premises in Sydney and resides in those premises with his de facto wife and child"
and that finding was clearly open to him. The Judge also referred in the passage earlier cited to the husband's right of residence in this country being pursuant to conditions limiting his stay, which conditions did not deprive him of the capacity to acquire a domicile of choice in this country. The authorities the learned Judge cited for this last proposition were not submitted to be in any way incorrect. The references to the husband's residence in para. 12 of the judgment might suggest that if there is a discrete requirement of residence at common law before there can be an acquisition of a domicile of choice, which requirement has not been modified by the Domicile Act, then the learned Judge had actually made all the findings that were necessary and sufficient.
However, the principal argument on appeal was that there was such a discrete requirement, and that the findings made fell short of it. Furthermore, residence as such was not identified as a necessary finding by the Judge in either of the two critical passages already cited in this judgment. We consider the submission correct that the learned trial Judge neither identified nor regarded the fact of residence as a discrete requirement, and the only question is whether he was correct.
At page 174 of his text on "Conflict of Laws", Dr. Nygh adopted the description of domicile given by Holmes J in Williams v. Osenton (1914) US 619 at 620 :
"The very meaning of domicile is the technically pre-eminent headquarters that every person is compelled to have in order that certain rights and duties that have attached to it by the law may be determined".
He went on to note the two (2) assumptions underlining that statement. One is that each of us must have a domicile, and the second is that we cannot simultaneously have more than one. Dr. Nygh wrote, at p. 177 of his text, as follows :
"The rules relating to the acquisition and loss of domicile varied at common law with each type of domicile. Some domiciles are acquired independently of volition, others are acquired as a result of the exercise of conscious choice, while the domicile acquired at birth occupied a peculiar and privileged position at common law.
A domicile of origin is that domicile which is ascribed to each individual at birth by force of law.
A domicile of dependence, sometimes called a domicile by operation of law, is the domicile of a person who lacks the capacity to acquire domicile for him or herself and whose domicile is determined by reference to that of another person such as a husband or parent. At common law, married women, minors and persons lacking the necessary mental capacity fell into this category.
A domicile of choice is a domicile which a person of independent capacity acquires as the result of a voluntary choice of a new place of residence".
Section 10 of the Domicile Act provides that :
"The intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his home indefinitely in that country".
The description of the relevant intent was described by Dr. Nygh in the same terms (at p. 181 of his work), wherein he wrote :
"A person acquires a domicile of choice in a country by being lawfully present there with the intention of remaining in that country indefinitely. The two elements of physical presence and intention must occur at the same time. Thus a migrant travelling to Victoria does not acquire a domicile of choice merely by intending to settle in that state. Nor would residence in Victoria, however long, by itself be sufficient if it were not accompanied by the necessary intention. However, the moment the migrant sets foot in Victoria with the intention of settling there, a domicile of choice in that state accrues. Provided the intention can be proved to exist the length of presence in the state is immaterial. It need be no more than a split second : Miller v. Teale (1954) 92 CLR 406. . . . ".
Dr. Nygh went on :
"At common law the mental element required to obtain a domicile of choice was the intention to remain in a country for an indefinite period without a fixed determination to move at any future time".
The absence of any reference to a requirement of residence in the domicile of choice, whether as a place of residence or as a state or combination of circumstances, will be noted. This term appears in neither the Domicile Act nor in Dr. Nygh's description of the requirements at common law. References to residence do appear extensively in the case law to which we were taken by both Counsel, but we think, with respect, that the appellant is in error in focusing on that particular term rather than the context in which it appears in each of the authorities to which we were taken.
We observe that the Domicile Act 1982, in s. 10, specifies the intention necessary to acquire a domicile of choice. That section focuses attention on the intention to make one's home indefinitely in the country in which the domicile of choice is said to have been acquired. That provision does not in terms require proof that the home to be made existed at the time the necessary intent was formed, or that that home had existed for any stipulated length of time, or for long enough to be described by the term "residence".
Absence of conditions in those last-mentioned terms accords with the experience of the many people who came to this country after the Second World War. Many left behind family members in war-ravaged countries, and came here to begin new lives. Many would have said what were feared to be final goodbyes when setting off for these shores but, on the appellant's contentions, application of the present laws of the Commonwealth to the many people who were in that situation would deny them the description of an Australian domicile of choice on their arrival in this country.
On the appellant's primary argument, this would only occur when "residence" was first established, irrespective of how fixed and determined the goal of a life here was upon the immigrant's arrival. We think that these considerations point to a fundamental flaw in the appellant's attack on the test of what is necessary to establish a domicile of choice.
While we agree with the submission that the observations in Miller and Teale (supra) are not specific authority for the point for which they are cited by Dr. Nygh at p. 181 of his work, namely that if the intention to remain indefinitely exists when lawfully present in this country, then the length of that lawful presence is immaterial, we nevertheless respectfully consider the point made by Dr. Nygh to be correct. In Miller and Teale, the circumstances were that the parties had married in New South Wales on the same day as an Order Nisi for dissolution of the respondent's prior marriage was made absolute in Adelaide in South Australia. The respondent wife had lived and worked in New South Wales for some years before her second marriage, and in the words of the judgment at 410 had been :
"outwardly manifesting sufficient appearance of regarding that State as providing her permanent home".
The judgment held that, until the Order Nisi in South Australia was made, she lacked the capacity to acquire her own domicile of choice, but that (at 414) :
"At the moment when the incapacity was terminated by the order absolute for dissolution her domicile changed so as to accord with the facts".
It will be seen that in that case the relevant party had lived for some considerable time in the relevant State or country before acquiring legal capacity to make that place her domicile of choice, which she acquired the very second she had the capacity to do so. This is somewhat the reverse of the situation posited by Dr. Nygh, but we consider that he is correct in any event, and that focusing on the intention of a newly-arrived immigrant accords with the common law.
We consider, with respect, the passage already cited from 410 of the judgment in Miller and Teale puts the fact of residence in its proper perspective. Residence for some period in a place or State can be an outward manifestation of a sufficient appearance of regarding that State as providing a permanent home. In our view, the references to residence in the authoritative decisions to which we are taken were made in the context of the necessary proof of the required intention. The intention which the common law required to establish a domicile of choice was the voluntary fixing of a person's residence in a particular place with the intention of continuing to reside there for an unlimited time (Udny v. Udny [1866-75] LR 1SC 442 at 458 : judgment of Lord Westbury). Domicile of choice was then the inference derived from that fact : (Udny at 458). As Street CJ observed in Schache v. Schache ([1931] SRNSW 633) at 635 :
"Residence in a country is prima facie evidence of an intention to reside there permanently . . . ".
And, at 636 :
"Domicile is a question of fact to be determined by the circumstances of each particular case".
We think reference to these three of the many cases cited is sufficient to establish our judgment that residence in a country should be understood as the best, or very good, evidence of the required intention, but it is not the only means of proving or establishing it. It can be inferred amongst other things from the nature of the departure from another country, and the circumstances of the arrival in what is intended to be a new one.
In the instant case, the husband relied upon a number of circumstances and his sworn intention. He was cross-examined, and the learned trial Judge was satisfied of the existence of the intent specified in the judgment. The Judge applied a test supported by authority and commonsense. The conclusion reached was admitted to be open on the evidence, that being the concession the appellant made in argument. The contention made on her behalf to the learned trial Judge that the Court was in some way bound by the finding of Loughnan JR of a Fijian domicile of choice as at December 1997 was abandoned on appeal. The learned Judge had concluded correctly that that unreviewed finding could not be put in issue in these proceedings, which he observed to be concerned with the present and different issue, namely the identification of the husband's domicile on 15 September 1998. It follows that Grounds 1 - 4 of the wife's appeal should be dismissed, and the declaration in Order 1 under appeal, that the husband had an Australian domicile on 15 September 1998, will stand.
THE STAY APPLICATION
There remains the wife's application to stay the husband's application for a divorce. The learned trial Judge heard argument on it, and ruled adversely to the wife. She has been granted leave, without opposition, to appeal the dismissal of that application.
The trial Judge quoted at length from a statement of the relevant principles on such applications, appearing in his own decision at first instance in Gilmore v. Gilmore (36 (1992) unreported). Those principles, as stated by his Honour, were approved in the Full Court judgment in that case on appeal ((1993) FLC 92-353 at 79740). In his Honour's view, the subsequent disapproval of other portions of that particular Full Court judgment by four (4) Judges of the High Court in Henry v. Henry (1996) 158 CLR 571, did not extend to the holding in Gilmore that the trial Judge had himself identified correctly the applicable principles. His Honour therefore cited in his judgment in the instant case some 15 paragraphs from his earlier judgment in Gilmore.
The paragraphs quoted show that the learned Judge has a well-informed understanding of, and interest in, the topic. However, certain of his own observations in the paragraph numbered 6 in the paragraphs quoted from Gilmore at first instance were to the same effect as propositions put forward by the Full Court in Gilmore, and subject to adverse or qualifying comment in Henry. These include the observation that a party who has regularly invoked the jurisdiction of the Court has a prima facie right to insist upon its exercise.
The learned trial Judge also referred in detail to the judgment itself in Henry, describing the factual background of the case, and citing the following important passages, which appear in that judgment at CLR 591-3 :
"If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies, and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to their martial status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.
Although the appellant first brought proceedings against the respondent in Monaco for judicial separation and, only later, commenced proceedings for divorce, both proceedings were, in essence, proceedings with respect to their marital relationship. Clearly, it was the same marital relationship which was the subject of the divorce proceedings brought in Australia by the respondent. And although it may not be quite so clear, the property proceedings instituted by the respondent in the Family Court are but an aspect of his controversy with the appellant as to their marital relationship. It may have been otherwise if they were no longer married but so long as their marriage subsists, their dispute with respect to property is a dispute as to the rights and obligations arising out of their marital relationship and those which should attend its dissolution. As such, it is properly to be seen as part of the controversy with respect to that relationship.
Considerations relevant to a stay of proceedings between husband and wife with respect to their marital relationship.
Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy.
Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties in the marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case taking into account the true nature and full extent of the issues involved".
The passages quoted by the learned trial Judge from his own earlier remarks in Gilmore showed that his Honour had correctly identified the question as being whether the Family Court of Australia was a clearly inappropriate forum for the determination of aspects of the parties' controversy involving their marital relationship. His Honour referred to the fact that there was but one divorce application on foot, being the one in this Court, the fact that the husband had given an undertaking to submit to the jurisdiction of the High Court in Fiji in the wife's property proceedings therein, and to the wife's having made a late undertaking not to oppose an application by the husband for a divorce in that Fijian Court.
His Honour then posed to himself the question of whether or not this Court was a clearly inappropriate forum, and returned to the judgment in Henry (at CLR p. 587) for the appropriate test. This was whether or not a continuation of the proceedings in this Court would be oppressive in the sense of "seriously and unfairly burdensome, prejudicial and damaging", or vexatious in the sense of "productive of serious and unjustified trouble and harassment". His Honour held that a continuation of the proceedings here would not be oppressive or vexatious as described.
The learned Judge so held because he had concluded that granting a divorce in this Court would not have an adverse effect on the continuation of the wife's property proceedings in the Court in Fiji. There was affidavit (AB 105) and oral evidence (AB 403-5) to that effect before the learned Judge from Mr. Anu Patel, a Barrister and Solicitor of the English and Fijian Bars, who has practised in Fiji for 24 years. His affidavit also advised that the husband's Australian domicile would disentitle him to apply for a divorce in Fiji, as s. 11(2) of the Fijian Act (which Act is largely identical to the Matrimonial Causes Act 1959 (Commonwealth)) provides that proceedings for a decree of dissolution of marriage shall not be instituted under the Fijian Act except by a person domiciled in Fiji.
Evidence was led by the wife which challenged the proposition put by Mr. Patel, namely evidence from a Dr. Mohammed Sahu-Khan that the wife's property proceedings in Fiji would be adversely affected by a divorce granted in Australia (AB 478-482 and 488-492). Dr. Sahu-Khan, a Barrister and Solicitor of Fiji, relied for that contrary opinion upon the definition of a "matrimonial cause" in s. 2 of the Fijian Act, and on the provisions of sections 55, 86 and 87 of that Act. The substance of his evidence was the opinion that the grant of a divorce in Australia would leave the wife with no proceedings on foot in Fiji to which she could attach her application for property orders. This position was said to result from the definition of a matrimonial cause in s. 2 of the Fijian Act, which included as a matrimonial cause proceedings with respect to "settlements" only when those latter proceedings were ones in relation to concurrent, pending or completed proceedings as defined in s. 2(a) or 2(b) of the Fijian Act. Those described in s. 2(a) are proceedings, inter alia, for decrees of judicial separation or dissolution of marriage. Dr. Sahu-Khan considered that the grant of a divorce in Australia would put an end to the application for a decree of judicial separation in Fiji. These propositions relied upon by Dr. Sahu-Khan in his evidence in chief were not put to Mr. Patel in the latter's cross-examination, and did not appear in Dr. Sahu-Khan's affidavit.
Dr. Sahu-Khan's opinion expressed before the trial Judge was the opposite of an earlier opinion he had expressed before Loughnan JR in that proceeding, and a transcript of his evidence on that earlier occasion was made Exhibit "E-11" in the proceedings below. Exhibit "E-11" records Dr. Sahu-Khan (AB 715, 717 and 718) as swearing that he could not say that an Australian divorce would have any impact on the wife's property claim in Fiji. The witness appeared unwilling to admit the extent of his change of stance before the learned Judge.
The learned trial Judge did not make any findings resolving the conflict of opinion on this significant point, and suggested instead that a practical way around the problem that Dr. Sahu-Khan foresaw for the wife, was that she amend her proceedings for a decree of judicial separation to seek instead a declaration by the High Court of Fiji as to the validity of a decree of dissolution by the Family Court of Australia. The learned Judge considered that this would bring her proceedings within the relevant definition in s. 2(b) of the Fijian Act, which section defines as a matrimonial cause "proceedings for a declaration of the validity of the dissolution of a marriage".
His Honour thought such an application for a declaration probably necessary in any event, in the absence of any means identified to his Honour of proving the fact of an Australian decree in a Fijian Court. This last matter, with respect, is an evidentiary issue, and we see nothing at all attractive in the proposal that one national Court be asked to pass judgment upon the validity of Orders made in another national Court. This is a position that Courts of different states and nations strive to avoid. We consider, with respect, that to invite that result is an error of law, and we do not think this suggestion was a satisfactory way in which to deal with the conflicting views in evidence on the effect of a divorce granted in Australia on the wife's property application in Fiji.
The reference to proof or establishing the fact of an Australian decree in the Fijian Court is a reference to s. 92 of the Fijian Act. That section (set out in the judgment below) relevantly provides in s. 92(2) that a dissolution of marriage in accord with a foreign law shall be recognised as valid in Fiji where, at the date of institution of the proceedings resulting in the dissolution, the applicant party was domiciled in that foreign country. Section 92(5) provides that the Court in considering the validity of a dissolution effected under a foreign law may treat as proved any of the facts found by a court of the foreign country.
This section was also the subject of some apparently inconsistent opinions by Dr. Sahu-Khan. His submission (Exhibit "E-8") to the High Court in Fiji in respect of the wife's summons filed 23 November 1998 included the proposition (at AB 587) :
"Under the Matrimonial Causes Act Fiji recognises the decree for dissolution of marriage made by a foreign Court (section 92). Therefore, it must logically follow that a decision on an issue in the foreign Court will also be recognised by Fiji.
In any event, under the principles of res judicata and issue estoppel this Honourable Court would recognise the decision of a foreign Court".
This submission was advanced in support of the claim that the findings of fact of Loughnan JR constituted an issue estoppel, or res judicata, and were enough to establish as valid the wife's claim for a declaration in the High Court in Fiji that the husband was domiciled in Fiji.
Notwithstanding that submission to the High Court in Fiji, Dr. Sahu-Khan's affidavit and oral evidence to the Family Court of Australia was that the Court in Fiji would not automatically recognise an Australian decree as valid, and that :
"There is nothing to stop our courts before they recognise that dissolution to determine the issue of domicile again" (AB 487).
This statement was consistent with his evidence before Loughnan JR (Exhibit "E-11" - AB 713 and 718) that the decision of the Australian Court on domicile would be taken into account by the Fijian Court, but would not be decisive, and the Fijian Court would itself determine if the husband was domiciled in Australia (or perhaps Fiji). Like his Honour, Dr. Sahu-Khan suggested that there be an application for a declaration of the validity of any dissolution ordered by the Australian Court (AB 487), but the difference between them was that Dr. Sahu-Khan saw this as a positive means of having the Fijian Court determine the issue of the husband's domicile.
The learned trial Judge referred at paras. 28 and 29 of his Reasons for Judgment (AB 18 and 19) to these apparent inconsistencies between Dr. Sahu-Khan's description of the effect of s. 92 as part of Fijian law to the High Court in Fiji on the one hand, and to the Family Court of Australia on the other. However, his Honour there appears to have treated that evidence concerning s. 92 as part of the steps in Dr. Sahu-Khan's argument that a divorce here, if recognised in Fiji, would adversely affect the wife's property proceedings there. These seem to us to have been quite different questions, whose only common feature was that Dr. Sahu-Khan may have put forward self-contradicting submissions on each.
We observe that Dr. Sahu-Khan's more recent opinion that the Australian divorce would remove the basis for the wife's property proceedings must assume the Court in Fiji recognising the Australian Order. It appears to us that the learned trial Judge has rejected the appellant's submissions on s. 92 and held that the Australian order for dissolution would be recognised in the Fijian High Court. Neither the witnesses nor counsel before the learned trial Judge cited any Fijian authority on s. 92(2) and s. 92(5) in terms gives a Fijian Court a discretion as to acceptance of facts found in a foreign Court. We also note that the effect of his Honour's combination in paragraphs 28 and 29 of what we regard as two (2) distinct issues was that counsel made no submissions on appeal on the effect of a foreign divorce on the wife's property proceedings.
We consider that the evidence led showed there were proceedings in Fiji, about which there is an unresolved argument in this Court at first instance that the grant of a divorce here would deny the wife jurisdiction in the very Court to whose property orders the husband has agreed to submit. Further, the judgment under appeal invites litigation in Fiji on the validity of the Orders made upon that judgment. This involves the risk of Orders based on inconsistent findings in the Courts of both countries as to the husband's domicile. In Henry, the High Court applied to an application for a permanent stay of proceedings for divorce in this country the test settled upon by that Court in Voth v. Manildra Flour Mills Pty. Ltd. (1990) 171 CLR 538, namely whether or not the Family Court of Australia was a clearly inappropriate forum. In Voth, the majority therein had described that test as focusing on the advantages and disadvantages arising from a continuation of proceedings in the selected forum (at 171 CLR 558), and, in Henry, the majority wrote (at CLR 590):
"There are more compelling considerations in favour of a stay of the local proceedings if, as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings and the proceedings are between the same parties and with respect to the same issue or controversy".
We consider that the passages in the judgment in Henry, cited herein, make it clear enough that there is but one dispute between these parties, that being the marital relationship. That matter, with its various facets, was being litigated in Fiji before the husband filed proceedings here. The parties have property in Fiji, including shares in Fijian companies. The question of the husband's domicile is being litigated there, and that litigation was in process when the trial on the husband's application took place in this Court. It is not clear whether the Court in Fiji will be able to avoid having to determine itself the husband's present domicile in any event. Both the learned Judge and Dr. Sahu-Khan appear to agree that the Court in Fiji should be invited to declare as to the validity of the Orders made here, and any application in those terms must be likely to result in the Fijian Court examining the husband's domicile. As remarked, this creates the significant risk of Orders being made in the two Courts based on inconsistent findings. In addition, the wife is intimately connected to the Fijian jurisdiction, and the husband has many connections with it. The parties married in Fiji and spent their marital years together there. They can participate in that jurisdiction on an equal footing.
These matters described in our last paragraph are all ones which the High Court in Henry identified as reasons relevant to granting a stay of proceedings in this Court. We consider with respect that they were not given adequate weight in the judgment under appeal and they are matters which in combination make this Court a clearly inappropriate forum at this time. In the circumstances, and for these reasons, we consider that the learned trial Judge erred in law as described herein, and that the proceedings in this Court are vexatious in the sense of productive of serious trouble and harassment. We also think they are oppressive in the sense of seriously and unfairly burdensome. We refer to the following remarks of the High Court in Henry (at CLR 591) :
"It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words".
We have not reproduced the grounds of appeal relevant to the application for a permanent stay. Suffice it to say that ground numbered 3 contended Australia was a clearly inappropriate forum, and ground numbered 8 complained that the learned Judge erred in the exercise of his discretion to grant or not grant a stay, in that he failed to take into account relevant considerations, gave grossly inadequate weight to other relevant considerations, and/or gave weight to irrelevant considerations, and/or mistook the facts or misunderstood the significance of certain facts established by the evidence. Those facts so established were pleaded to include :
(i)the jurisdiction of the Australian and Fijian Courts with respect to the parties and their marriage;
(ii)the recognition by the Australian and Fijian Courts of each other's Orders and Decrees;
(v)the order in which proceedings were instituted;
(viii)the connection of the parties and their marriage with Australia and Fiji;
(ix)the issues on which relief depends in Australia and Fiji;
and we consider that his Honour did fail to give sufficient weight to those of the particularised matters which are described in paragraphs 57 and 58 herein. We also consider his Honour erred in law in not taking into account the undesirability of the course he proposed which would invite the Fijian Court to determine the validity of the proceedings in Australia. This means that the appellant has succeeded on Grounds 3 and 8 of her Amended Notice of Appeal, and that Orders No. 2 and 3 should be set aside.
The appellant at first submitted that this Court should re-exercise its discretion on the application for a stay, and then joined respondent in objecting to that proposal. The respondent had submitted that either party might want to file further material on that issue and the matter should be returned to the trial judge. It seems to us that if a stay be granted here, there is no reason that the husband cannot seek a declaration as to his domicile in the High Court in Fiji. If it is declared to be Fijian, the husband has standing to apply for a divorce in that Court. If it is declared to be Australian, his consequent inability to apply in Fiji for a divorce would be a good reason for lifting a stay granted here, since the husband would then be seeking a remedy from this Court which the Court in Fiji would recognise was not available to him in Fiji (see the remarks of Brennan CJ in Henry at CLR 580).
We consider the reasons giving for setting aside Orders 2 and 3 of the Orders of 29 April 1999 are sufficient reasons for exercising that discretion ourselves, and for ordering a stay of the husband's application in Form 4 filed 15 September 1998 until further Order.
THE APPEAL AGAINST THE COSTS ORDER OF 30 JUNE 1999
There was also before us an appeal against an order which Moss J. made on 30 June 1999 requiring that the wife pay the husband's costs of the proceedings before his Honour (on a taxation in default of agreement basis).
The grounds of the wife's appeal against the costs order, as set out in her amended Notice of Appeal filed on 9 August 1999, are as follows:
"10.That his Honour erred in law in the exercise of his discretion in ordering the wife to pay the husband's costs in that he:
(i)failed to give any or any adequate weight to the financial circumstances of the husband;
(ii)found that the husband had been "wholly successful" in light of his determination that the doctrine of issue estoppel arose from the prior adjudication of Loughnan JR as to the husband's domicile;
(iii)placed excessive reliance on one relevant factor namely that the husband had been wholly successful;
(iv)took into account the notion of unfairness as a relevant matter to which the court could have regard under s 117;
(v)failed to give any or any adequate consideration to the conduct of the husband;
(vi)failed to give any or any adequate consideration to the position of the wife in light of the prior adjudication of Loughnan JR as to the husband's domicile and the effect of the continuance doctrine of domicile contained in s 7 of the Domicile Act (CTH)"
It is true, as was contended on behalf of the wife, that a consideration of his Honour's reasons for making the costs order reveals that the essential reason why his Honour ordered that the wife should pay the husband's costs was that he regarded the husband as having been "wholly successful" in his applications for a declaration as to domicile (in Australia) and for a decree of dissolution of marriage.
While we have not interfered with his Honour's declaration as to the husband's domicile, we have concluded that his Honour was in error in granting the decree nisi of dissolution of marriage and that that decree should therefore be set aside. Thus the husband can no longer be said to have been "wholly successful" in his applications and the basis for his Honour's costs order no longer exists. Accordingly, that order should be set aside. In these circumstances, we are of the view that there should be no order for costs in relation to the proceedings before his Honour.
Given the view which we have taken of this matter, it is unnecessary that we comment further on the various other matters relied on by the wife in her challenge to his Honour's order with respect to costs.
COSTS OF THE APPEALS
At the conclusion of the hearing of the appeals, we invited and received submissions in relation to the costs of the appeals in the event either that the appeals succeeded or that they failed.
Given that the appeal against the orders of 29 April 1999 has succeeded in part, and that the appeal against the costs order of 30 June 1999 has succeeded, and in light of the submissions made to us, we propose to grant each party a certificate under either s.9 or s.6 of the Federal Proceedings (Costs) Act 1981.
ORDERS
That there be leave to appeal the orders of the Honourable Justice Moss of 29 April 1999.
That the appeal against the orders of 29 April 1999 be allowed in part.
That Orders 2 and 3 of the orders of 29 April 1999 be set aside.
That the husband's application for dissolution of marriage filed on 15 September 1998 be stayed until further order of the Court.
That the appeal against the order of the Honourable Justice Moss of 30 June 1999 with respect to costs be allowed.
That the order of the Honourable Justice Moss of 30 June 1999 with respect to costs be set aside.
That there be no order as to costs in relation to the proceedings before the Honourable Justice Moss on 18, 19 and 22 March 1999.
That the Court grants to the Appellant/Wife a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant in respect of the costs incurred by the Appellant in relation to the appeal.
That the Court grants to the Respondent/Husband a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent in respect of the costs incurred by the Respondent in relation to the appeal.
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Appeal
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Duty of Care
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Negligence
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Causation
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Damages
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4
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