Fertig & Bosque
[2024] FedCFamC1F 634
•12 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fertig & Bosque [2024] FedCFamC1F 634
File number: MLC 6891 of 2024 Judgment of: MCNAB J Date of judgment: 12 September 2024 Catchwords: FAMILY LAW – JURISDICTION – Ex tempore reasons – Whether the Court is a clearly inappropriate forum – Where the father resides in Country B – Where the mother and children reside in Australia – Where the Court finds that this Court is not a clearly inappropriate forum. Legislation: Family Law Act 1975 (Cth) ss 4, 39, 69E, 79 Cases cited: Henry & Henry [1996] HCA 51
Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
Whung & Whung [2011] FamCA 137
Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 12 September 2024 Place: Melbourne Counsel for the Applicant: Mr Mellas Solicitor for the Applicant: Pearsons Lawyers Pty Ltd Counsel for the Respondent: Mr Foo Solicitor for the Respondent: Wiin Lawyers ORDERS
MLC 6891 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FERTIG
Applicant
AND: MR BOSQUE
Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Husband be restrained by injunction from continuing, issuing or proceeding with his application for divorce, property division and parenting orders in Country B.
2.The Wife’s costs be reserved.
3.The matter be listed before the Hon. Justice McNab for directions hearing on 15 October 2024 at 9.30am by Microsoft Teams.
4.By 4.00pm on 10 October 2024, each party email chambers a proposed Minute of Orders they seek to rely upon at the directions hearing on 15 October 2024.
AND THE COURT NOTES THAT:
A.The parties are not required to attend the direction hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fertig & Bosque has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCNAB J
By an Amended Initiating Application filed by the wife on 12 August 2024, the wife seeks orders restraining the husband from taking any further steps in proceedings issued by him in Country B in relation to matrimonial property and parenting proceedings. The parties are both citizens of Country B. They married in Country B in 2003 and separated in Australia on 26 April 2024. The wife was born in 1983, aged 41 years, and the husband was born in 1977, aged 46 years. The parties have four children.
BACKGROUND
The parties commenced residing in Australia in late 2021 on a Provisional Visa (“the Provisional Visa”). The wife wishes to continue to reside in Australia and is eligible to apply for permanent residency in 2025. She is not currently employed and has the care of the four children aged 20, 17, 11 and 8. The parties applied for the Provisional Visa in 2019, and it was granted in 2021. The three younger children are at school and the eldest graduated from university in 2024. The wife says that her and the children have lived in a property at C Street, Suburb D (“C Street property”) since 2022 save for a five-day period in May 2024.
The parties’ application for permanent residency required the parties to invest $1.5 million in a business bond in Australia, which has been complied with, and for that sum to continue to be invested for the period of the Provisional Visa.
In 2022, the parties purchased the C Street property, for the sum of $1.2 million. That property is registered in the parties’ joint names.
In 2016, the husband's sister and niece incorporated a company, E Pty Ltd, in Australia with the husband’s sister and brother holding shares in the company on trust for the parties at that time. In 2022, the wife became the sole director of the company. She owns 55 percent of the shares, with the husband owning 45 percent.
In mid-2022, that company purchased a business and changed its name to F Pty Ltd. That company now holds 100 percent of the shares in G Pty Ltd.
The company F Pty Ltd had five employees but ceased operating in early 2023 and the business accounts currently have a total balance of $3,600 in cash.[1]
[1]Applicant’s Affidavit filed 10 September 2024 at [49]-[53].
In about early 2023, the husband returned to Country B after a dispute with the wife. He then flew to Australia for a month and a half in mid-2023 before returning to Country B. The husband visited Australia again in early 2024 and the wife gives evidence that this was an unsuccessful attempt to reconcile.
The husband returned to Country B on 26 April 2024 which the wife lists as the date of separation. The husband returned to Australia in mid-2024 for a period of time to attend a relative's wedding but returned to Country B shortly thereafter and has remained there since. The wife, as said earlier, continues to reside in Australia.
The wife gave evidence that in mid-2024 an argument occurred between the parties and the wife alleges that the next day the respondent committed family violence and, as a result, the following day the wife made an application for a family violence intervention order with the order being granted in mid-2024 against the husband.[2]
[2]Applicant’s Affidavit filed 10 September 2024 at [25]-[31].
History of Proceedings
In May 2024, the husband filed an Originating Summons in the Country B Court in State H, seeking to dispense with requirements to attend mediation conducted by a conciliating body prior to filing a divorce petition.
On 7 June 2024, the respondent wife filed an Initiating Application in this Court seeking an alteration of property interests between the parties pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The wife sought for the application to be heard urgently, seeking orders that the husband be restrained from further proceeding in the Country B Court. The application for an urgent hearing was granted with the matter being listed on 13 June 2024 for interim defended hearing. The matter was then adjourned for a further interim defended hearing on 27 June 2024, where the matter was listed for a case management hearing on 13 August 2024. On 12 August 2024, the wife filed an Amended Application seeking parenting and property orders relating to property in Australia and Country B.
On 12 August 2024, the husband’s application in the Country B Court was listed for a case management hearing. The husband was ordered to withdraw his application and to apply for fresh proceedings to again seek leave to dispense with the requirement to attend conciliation.[3]
[3]Applicant’s Affidavit filed 10 September 2024 at [97].
On 13 August 2024, orders were made in this Court for the matter to be adjourned to determine whether Australia is a clearly inappropriate forum to hear the matter. There were orders made restraining the husband from either proceeding with or issuing fresh proceedings in Country B until the determination of the forum issue in this Court.
Notwithstanding these orders, the husband filed a fresh application in the Country B Court on 30 August 2024, which was listed for hearing on 13 September 2024. The wife deposes that she has not been served with that application.
Details of Property
In relation to the property held by the parties, the wife identifies property both in Australia and Country B. The property in Australia consists of the C Street property which has a value of E$1,300,000, the Business Bond, which was referred to earlier, in the sum of $1,500,000, a Commonwealth Bank of Australia term deposit account in the sum of $90,000 and various bank accounts with modest balances, which amount to E$2,500. The other assets in Australia relate to the value of the companies, F Pty Ltd and G Pty Ltd referred to above. The wife gives evidence that the G Pty Ltd’s assets consist of Motor Vehicle 1 valued at E$40,000.
The wife submits that the parties have around 20 properties in Country B, which are largely owned by the husband. The wife seeks orders in relation to four of those properties, which are, by her estimation, worth E$118,750, E$9,375, E$125,000 and E$131,250. Otherwise, she seeks orders that she retain the property in Australia, with the husband to retain the properties in Country B in his name, joint names, or with third parties and his interests in corporations in Country B. The wife summarises the value of the property belonging to the parties at [14] of her submissions. There is minor issue taken with the identification of the Country B properties, but that is not a matter of significance for the purposes of this application.
MATERIALS RELIED UPON
The wife relied upon:
(1)Affidavit of Ms J filed 10 September 2024;
(2)Wife’s affidavit filed 10 September 2024;
(3)Affidavit of Ms J filed 14 August 2024;
(4)Further Amended Initiating Application filed 12 August 2024; and
(5)Wife’s Financial Statement filed 7 June 2024.
The husband relied upon:
(1)Affidavit of Ms J filed 10 September 2024;
(2)Husband’s affidavit filed 27 August 2024; and
(3)Affidavit of Ms J filed 14 August 2024.
The affidavits of Ms J are affidavits where she gives evidence of the operation of Country B law, in particular, property proceedings in Country B. There were no objections taken to her evidence and it has been relied upon by each party.
RELEVANT LAW
The issue for determination in this proceeding is whether Australia is a clearly inappropriate forum for the parties’ dispute given that there is an application in Country B filed by the husband as well as an application filed in this Court by the wife.
To clarify, in addition to orders in relation to property, the wife also seeks orders in relation to parenting of the children under the age of 18. Whilst it has not been developed, and I do not hold the husband to this as it was done by way of submission and without him submitting to the jurisdiction here or having articulated his position in Country B, the husband submitted that the he may seek orders in Country B, if the matter were to proceed there, for the two younger children to reside with him in Country B. Again, that is not put as a final position. The jurisprudence and consideration in relation to the question that I must determine is well settled and I proceed on the basis that a litigant who issues proceedings in a court has a prima facie right to have proceedings determined unless the jurisdiction is a “clearly inappropriate forum”: Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55. See also: Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 where Deane J said:
7.The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him
I also refer to the High Court decision of Henry v Henry [1996] HCA 51, which has been referred to in authorities in this jurisdiction including Whung & Whung [2011] FamCA 137 at [43], which conveniently sets out the following matters that arise for consideration in an application such as this.
1.No question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage.
2.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.
3.It will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
4.Other considerations include the order in which the proceedings were instituted.
5.Other considerations include the stage which the proceedings have reached.
6.Other considerations including the costs that have been incurred.
7.It will 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.
8.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.
9.It will be relevant to consider “the general circumstances of the case”, taking into account “the true nature and full extent of the issues involved.”
Turning to the question of jurisdiction, there is no issue regarding this Court having jurisdiction to hear the parenting and property applications. In that regard, I refer to s 4(1)(ca) and s 39(4) of the Act. In relation to parenting, I refer to section 69E(1)(a) and (c) of the Act. In relation to the jurisdiction of the Country B court, there was some issue raised in the wife's written submissions as to whether the Country B Court had jurisdiction as it was said there was a dispute as to whether the wife was domicile in Country B. However, that was not pressed with any force before me.
It appears that the Country B Court does have jurisdiction to deal with matters that are raised, both in relation to parenting and property. In that regard, I refer to [8] and [12] of the report of Ms J dated 6 August 2024 and annexed to an affidavit sworn by her on 8 August 2024. In that report, Ms J gave evidence as to jurisdiction referring to s 3(1) of the Country B marriage and divorce legislation (“marriage and divorce act”) which she says provides that it:
8.…shall apply to all persons in [Country B] and to all persons domiciled in [Country B] but are resident outside of [Country B].
Ms J continues that s 3(2) of the marriage and divorce act provides that:
8.…a citizen of [Country B] is deemed, until the contrary is proved, to be domiciled in [Country B].
The Country B Court’s power to make a Decree of Divorce arises under section 48(1) of the marriage and divorce act which Ms J deposes to being:
9.1.the marriage has either been registered or deemed registered under the [act] or was contracted under a law providing that, or in contemplation of which, the marriage is monogamous; and
9.2the domicile of the parties to the marriage at the time when the petition is presented is in [Country B].
At [10] and [11] of her report, she states that:
10.While Section 48(1) [of the marriage and divorce act] refers to the domicile of parties i.e. of both the husband and wife, [Country B] continues to apply the common law rule of the wife acquiring a domicile of dependence of the husband upon marriage, which remains until the marriage is lawfully dissolved.
11.Accordingly, the only person’s domicile that is of relevance in divorce proceedings is the husband’s domicile.
It appears that there is no issue as to jurisdiction of the Country B Court on the basis of that opinion.
As to the issue of the enforceability of orders, at [72]-[74] of her report, Ms J stated:
72.In [Country B], a foreign Court Order can be registered in [Country B] pursuant to the [a reciprocal enforcement act]. However, this Act limits the registration of judgments to a list of reciprocating countries, and it is only applicable for the registration of monetary based judgments.
73.Under this Act, an Australian Court Order will not be registerable in [Country B] as Australia is not a reciprocating country under the Act.
74.There are currently no other reciprocal agreements between [Country B] and Australia with regard to the division of assets. As such, [Country B] will not enforce an Australian Court Order on asset division of properties located in [Country B].
Similarly, at [68]-[71], Ms J states in relation to granting orders and in respect of assets situated in Australia that:
68.A [Country B] Court can deal with foreign assets by making orders in personam against the spouse who is a party to a [Country B] proceeding and is within jurisdiction or at least subject to the jurisdiction of the [Country B] Court.
69.In making orders in personam, the Court can include the value of the foreign assets into the pool of matrimonial assets within [Country B] and order a division based on that pool, without making orders requiring the transfer or sale of foreign assets.
70.Such orders can be made on the basis that the full force of the [Country B] Courts’ coercive powers can be brought to bear on the party who remains resident within the jurisdiction to compel compliance.
71.Courts may in their discretion decline to make order in rem over foreign assets if there are concerns on whether the orders can be effectively enforced, especially where parties are not in [Country B].
(footnotes omitted)
At [75] Ms J states:
75.Any party seeking to enforce a foreign judgment in [Country B] in respect to his/her share of matrimonial assets, will have to file fresh civil proceedings under common law remedies, the Australian Court Order being evidence of the rights of the parties. The foreign judgment itself provides the cause of action. However, this is only applicable if the Australian Court Order was for a specific sum i.e. the division expressed in the form of payment of money, by reason of the following:-
75.1To enforce a foreign judgment by way of common law, certain pre-requisites must be met. Firstly, the foreign judgment must be an in personam judgment that is final and conclusive. Secondly, the judgment must be for a specific sum. Thirdly, it must have been given by a court of competent jurisdiction.
(footnotes omitted)
CONSIDERATIONS
It is submitted on behalf of the wife, that the issues in relation to dealing with assets in Country B, if orders are made by Australian courts, is not an issue of significance. This is put because the only adjustments that she seeks is in relation to the property interests in Australia. In respect of the property interests in Country B, the wife simply seeks to retain the properties which are registered in her name and there is no need for any enforcement proceedings. She also submits that the properties that she seeks orders to in relation to Country B, comprise only a small proportion of the total pool of property in that country.
As a result of discussions with counsel for the husband through the course of the hearing, I asked him to articulate what orders were being sought by the husband in the proceeding. I accept that this was done on the run, over the telephone and through an interpreter at times and the husband will not be held to matters that he raised, however, the husband did indicate that he would be seeking orders in respect of property in Australia, and this raises real issues as to whether the court in Country B is able to make effective orders in relation to the assets held in Australia, which represent a significant portion of the assets.
Whilst it is a rough calculation, based on the calculations provided in the wife's affidavit, which are in part estimates of the value of assets in Country B, whereas the value of the assets in Australia are more settled, the value of the total assets that she seeks is around $3,317,260.23, with the total asset pool of about $7.5 million. It is not apparent that the Country B court is in a position to deal finally with all matters or to effectively enforce all the orders that the husband seeks.
As canvassed above, the husband indicated that he would seek orders for the adjustment of the property in Australia. In relation to the C Street property, he seeks an order that he be entitled to 50 per cent of those assets. As to the bond, he also seeks 50 per cent. He seeks an order that the CBA term deposit be in his name. In relation to the F Pty Ltd, he seeks orders in relation to fifty-fifty division, which would involve an adjustment, and as with the G Pty Ltd, he seeks 50 per cent, which would also involve an adjustment. Whilst the applications have not been finally framed, it would appear that the issues with enforcement might be more significant for the husband, given the nature of the orders that he seeks and in circumstances where the wife is not seeking an adjustment to the properties that are held in Country B in her name.
Counsel for the husband submitted that the registration of the foreign judgments in Country B and the issues around enforcement are not a major issue and he makes reference to the doctrine of res judicata as coming to the aid of the husband in [23] and following in his helpful written submissions. I do not think that the doctrine has application to the matters that I must now determine. It may be applicable if proceedings commenced in Country B, were determined in Country B after a final hearing and then the wife then sought to issue proceedings in Australia in relation to the same subject matter. However, that is not the case that pertains here, and it seems like a submission that is made in relation to a different set of circumstances than the Court is dealing with here. I have certainly had regard to that submission, but do not believe that it is presently relevant or applicable.
The next issue is the question of which forum can provide more effectively for the complete resolution of the matters involved in the parties' controversy. For the outline, it appears that the Australian court is plainly not an inappropriate forum in that respect, as it is strongly arguable that it can provide a more effective forum in terms of enforceability in relation to the financial aspects of the case. In relation to parenting, it also appears that it strongly favours Australia in that respect, given the children are resident here, they are going to school here, living with their mother here, and evidence in relation to their best wishes is likely to be obtained in Australia. Both counsel acknowledged the difficulties in enforcing parenting orders made by either Court in the other country. Both jurisdictions also have issues with enforcement of any property orders made in each jurisdiction but that does not lead to a conclusion that the Australian court is a plainly inappropriate venue to determine the disputes raised by the wife.
In relation to the institution of the proceedings, I refer to the narrative that I set out earlier. Whilst the husband did institute proceedings first in Country B, it appears they were affected by procedural defect and the husband has been required to refile and that also was an ineffective filing. There is no great advantage to either party in respect of this ground. In relation to the stage which proceedings have reached, there has been no substantive steps taken in either jurisdiction, the question of jurisdiction has been an issue here and no steps or substantive orders have been taken in Country B.
In relation to costs, there is evidence before the Court of the cost. The wife has deposed to having incurred costs of $67,942.95 in Australia[4] and a sum of money with her solicitors in Country B, together with a sum in relation to the costs of the expert, Ms J (which is included in the above sum of costs incurred in Australia). The applicant wife has been advised that it would cost her around $47,000 to $80,000 equivalent in Country B currency to litigate property proceedings in Country B.
[4]Applicant’s Costs Notice filed 11 September 2024.
The respondent husband has referred to costs he has incurred in Australia of $22,630 with future costs of E$1,320 of disbursements in relation to 12 September 2024, estimated costs of mediation at E$6,600 and the cost of a final hearing of E$55,000.[5] It would appear that proceedings might be cheaper in Country B, but the differential is not such as to weigh so heavily to give the effect that Australia is a plainly inappropriate forum.
[5]Respondent’s Costs Notice filed 11 September 2024.
In relation to the connection of the parties, I have outlined earlier the narrative of the parties migrating to Australia and their application for a Provisional Visa. The wife wishes to remain in Australia with the children. The husband expresses his desire not to live in Australia. He said he was not happy in Australia and wishes to remain in Country B but to come back to Australia to visit the children periodically.
Obviously there is a strong connection to Country B as a result of the parties residing there and living there for most of their marriage. However, the connection to Australia is not a fleeting one or a contrivance for the purposes of obtaining jurisdiction. The wife and the husband own property in Australia and they have invested $1.5 million in a business bond which provides a strong connection to this jurisdiction.
In relation to giving consideration and having regard to the resources of the parties, their understanding of language and their capacity and ability to participate in the respective proceedings on an equal footing, I am told that proceedings in Country B would be conducted in English and neither of the parties are fluent in English. Both parties required interpreters for the purposes of today's proceeding and consequently there is no particular advantage from a language perspective for the parties to conduct the litigation in Country B. The husband has the financial capacity to travel to and conduct proceedings in Australia.
The issue was raised that there is likely to be a dispute between the husband and the wife in relation to the wife's purported ownership of property in Country B and it was said that the properties that she has in her name were gifted to her, or the monies for the purchase of them was provided by the maternal grandfather who is still alive and there might be issues with him giving evidence in Australia. There is no reason raised as to why his evidence could not be accommodated by Microsoft Teams.
In delivering an ex tempore judgment, I bear in mind the statement of the plurality in Voth at [53] in these terms:
53.…There may well be circumstances in which the primary judge may conclude that it is desirable to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors and explaining why the local forum is or is not a clearly inappropriate one. Ordinarily, however, it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (i.e. "clearly inappropriate forum") grounds.
CONCLUSION
For these reasons, Australia is not a plainly inappropriate venue, and in those circumstances, I will make an order of the kind sought restraining the husband from taking further action in relation to the proceeding in Country B to prevent a multiplicity of proceedings.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 19 September 2024
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