Gallo and Gallo

[2013] FCCA 2307

FEDERAL CIRCUIT COURT OF AUSTRALIA

GALLO & GALLO [2013] FCCA 2307

Catchwords:
FAMILY LAW – Divorce – whether the court has jurisdiction to determine the application – respondent wife no longer within the jurisdiction – whether Australia is an “appropriate” or “inappropriate” forum – consideration of evidence available in this case – divorce granted.

Henry & Henry (1996) 185 CLR 571
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Gilmore v Gilmore (1993) FLC 92-353

Applicant: MR GALLO

Respondent: MS GALLO

File Number: BRC 5013 of 2013

Judgment of: Judge Coker

Hearing date: 5 November 2013

Date of Last Submission: 5 November 2013

Delivered at: Brisbane

Delivered on: 5 November 2013

REPRESENTATION

Counsel for the Applicant: Mr Hulett

Solicitors for the Applicant: Porter Hulett Lawyers

Respondent: No appearance

ORDERS

1. A divorce order be made, such divorce order to take effect and thereby terminate the marriage on the sixth day of December 2013.

IT IS NOTED that publication of this judgment under the pseudonym Gallo & Gallo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRC 5013 of 2013

MR GALLO

Applicant

And

MS GALLO

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. I have before me a contested application for divorce.  The applicant is Mr Gallo and I shall refer to him as the husband.  The respondent to the application is Ms Gallo and I shall refer to her as the wife.  The application for divorce was filed in the Brisbane registry of this Court on 26 June 2013 and was returnable, in the first instance, on 21 August 2013. 

2. The application set out in general terms the circumstances of the relationship including, of course, when the parties married and when they separated, as well as details in relation to the children of the relationship [X] and [Y], aged respectively 10 and 7 years at this time.  The application detailed the specific arrangements that the husband says were in place with regard to the parenting of the children and noted that the children were now residing with the mother in Northern Ireland, which was the place that the parties had originally met and married, though they did come to live in Australia in 2010.

3. The husband’s application indicates that the parties married on [omitted] 1999.  The material also indicates that they were in a relationship for a number of years prior to that.  It is perhaps not relevant other than with regard to proceedings that might otherwise be brought, but it is clear that the relationship was one of some significant duration as the parties did not separate until 2012 and, therefore, were certainly cohabiting for a period of 15 or more years. 

4. Separation appears to have occurred in April of 2012 and shortly after separation in Australia occurred, the wife moved to return to Northern Ireland with the children.  It is not exactly clear from the material that I have seen whether that was a unilateral action on the part of the wife or agreed between the husband and wife, but it certainly does not appear to be of any contest in relation to the proceedings.  What is in contest in respect of the matter, however, is whether the application for divorce brought by the husband should be determined in this Court. 

5. As I said, the application for divorce was filed on 26 June 2013 and, as best I can understand the material that is filed, on 9 August 2013 the wife, having been served with the application, filed a response to the divorce.  In part C, to that document, she notes in answer to the question:

   Do you want the Court to dismiss the Application for Divorce?  Yes.   

6. She then goes on at point 6, to detail why the application for divorce should be dismissed.  She says:

   There are existing divorce proceedings in Northern Ireland which were filed on 21^st June 2013.  The proceedings were commenced in advance of this application and it is the respondent’s position that the proceedings in Northern Ireland take precedence and therefore this Court has no jurisdiction. 

7. That is the totality of the response filed in relation to the proceedings and would, it would seem on the face of it, simply purport to suggest that as the proceedings brought by the wife in Northern Ireland were lodged earlier in time than the application filed by the husband, that there is by some exclusive right, a need only to consider the proceedings in Northern Ireland. 

8. With respect, that is clearly not the law and I shall come to that a little later in these reasons.  It is interesting and noteworthy, however, that whilst in the response the wife says that there are existing divorce proceedings in Northern Ireland, which were filed on 21 June 2013, the actual documents that are provided by the wife indicate that the divorce petition was received on 21 June 2013 and the use of the word ‘received’ seems pertinent, in light of the fact that subsequently documents under seal from the Courts of Justice in Northern Ireland are dated 2 July 2013. 

9. It is no doubt the case, that whilst the documents were lodged, the registry of the Court in Northern Ireland, like the registries of so many of the Courts throughout the word, are busy places of business and the date of receipt may not necessarily in any way reflect the date that the documentation is filed and becomes part of the Court record.  It is, therefore, as I have indicated, somewhat unreasonable to suggest that because documents were received by the Courts in Northern Ireland but not filed at a date prior to the filing of the proceedings in Australia that they should take precedence. 

10. Just as ludicrous an argument would be one to suggest that the divorce application filed in this Court, should take priority over a divorce application brought in the Northern Ireland courts, because the filing date rather than the lodgement or receipt date is to be accepted and, therefore, proceedings in this Court were first in time. 

11. The real issue here is to determine whether, in fact, the jurisdiction of this Court should be invoked in relation to such proceedings.  I should note also in passing, though it is a little unusual, that the husband has filed an affidavit which was sworn on 21 August 2013 when the matter came before Registrar Kane of this Court, in relation to the application for divorce. 

12. In the affidavit, the husband deposes to the fact that the proceedings are on foot in two different jurisdictions and notes that the wife was served with his divorce application. But at least at 21 August 2013 and, as I understand the submissions by his legal representatives today, even to this time, the husband has not been formally served with the application or proceedings brought by the wife.  At paragraph 4 of his affidavit the husband says:

    Although my solicitor has been sent a copy of my wife’s proceedings I have not been served with them and I have not instructed my solicitor to accept service of them. 

13. I would expect that what has been indicated there, is that these are the proceedings that have been brought, and that it might be hoped that the parties could negotiate some resolution in relation to the matter.  That appears more particularly to be the case when it is noted, as it is the case here, that the husband has instructed legal representatives in Northern Ireland to involve themselves in resolution of issues that might be called, ancillary to the divorce. 

14. To that end I note, for example, that the material that has been filed by the wife seeks orders not only with regard to the divorce between the husband and the wife, but also seeks orders with regard to an order for maintenance, pending suit, as well as periodical payments and then goes on to seek orders with regard to a property adjustment order and an order in respect of any pension policy, fund, scheme, trust or provision, in which the husband has any entitlement. 

15. No doubt, such matters need to be the subject of negotiation and possible resolution and it is noteworthy that the statement of arrangements in relation to children makes reference to the fact that:

    Before you issue a petition for divorce try to reach agreement with your husband/wife, over the proposals for the children’s future. 

16. Quite clearly it is anticipated that there will be negotiation in relation to children’s matters and, with respect, it appears, from what I have heard in relation to this matter that it is also anticipated, and quite property so, that there would be negotiation in relation to property matters. 

17. The issue, therefore, at this time, relates simply to whether the divorce should be granted.  Registrar Kane on 21 August 2013 clearly noted that there was an issue of concern and that there needed to be information provided in respect of the proceedings.  To that end, the orders that she made pre-supposed that material would be filed which would, no doubt, address the issues that might give rise to concerns as to whether the divorce should be granted in this jurisdiction or not. 

18. First and foremost, she ordered that the respondent file and serve a notice of address for service in Australia within 21 days prior to the date for hearing and noted a little later in the orders that the matter was listed before a judge for directions at 10 am on 14 November 2013.  Of course, that date has been changed to today, but notwithstanding that, whether it was 21 days prior to 14 November or 21 days prior to today, 5 November 2013, is irrelevant, as no notice of address for service within Australia has been filed. 

19. Additionally the registrar ordered that the respondent, being the person who objected to the granting of the divorce, file and serve all affidavits to be relied upon at the hearing, 28 days prior to the date for hearing.  No material has been filed in relation to the matter, though, it should be noted that when indications were given that the matter was to be moved from 14 November 2013, a request was made for material to be filed and, as best as can be assessed in relation to the matter, the only response was an email from McGrady Scullion Solicitors of 5 November 2013 at 5.16 am, in which Ms Nicola Burns, solicitor, says: 

    Dear Sirs, please note that ancillary relief proceedings pertaining to this marriage are listed for FDR hearing on 30 January 2014.  Mr Gallo has instructed solicitors in this jurisdiction to act in these proceedings and we would, therefore, submit that this jurisdiction is seized at proceedings relating to the marriage.     

20. No doubt, Northern Ireland is seized of proceedings in relation to ancillary relief relating to matters with regard to property distribution and a consideration as well of matters in relation to spousal or child support, but there is nothing indicated in any of that correspondence that would suggest that the granting of the divorce in this jurisdiction or, in fact, in Northern Ireland would in any way preclude the conduct of ancillary proceedings in relation to other matters. 

21. It is trite to say but is true, that if as purported to be the case or at least by inference suggested to be the case from the short email that has been forwarded, that a divorce in Australia would affect the ancillary proceedings, then some information should have been provided in relation to what might or might not be the consequences or, perhaps, more particularly, the prejudice to the wife, if a divorce were granted in this jurisdiction. 

22. No information has been provided and it is, of course, clear that the onus in relation to setting out the prejudice or harm that might arise is something that is required to be provided by the wife.  To suggest that the fact that the husband has instructed solicitors in Northern Ireland to act in relation to the ancillary proceedings is sufficient to void any jurisdiction of this Court is, in my view, a bow far to long to draw in relation to the matter. 

23. It is noteworthy also that the legal representatives today for the husband have indicated that it is the case that the husband has filed material, or has rather, instructed solicitors to appear in Northern Ireland and, notwithstanding the granting of a divorce or not in this jurisdiction, intends to continue with the negotiations and, if necessary, determination of proceedings in Northern Ireland, with regard to the ancillary matters. 

24. I am comforted by that in relation to these proceedings, in particular as I note that these are, as was indicated in submissions provided, divorce simpliciter proceedings, in which no other relief with regard to either property or children’s matters are sought and that it is simply the issue of whether, in accordance with the law of this country, the husband and the wife have had a relationship which has broken down irretrievably and meet the criteria set out in the Australian legislation, with regard to the granting of a divorce so as to end their marriage. 

25. I have been much assisted by the submissions provided by the legal representatives for the husband.  In particular, I have been referred understandably to the decision of the High Court of Australia in Henry & Henry (1996) 185 CLR 571, where the Full Court of the High Court considered at some length issues with regard to an application for stay and, to all intents and purposes, that is what the wife is seeking in relation to these proceedings, where, in her response application, she seeks simply an order that the Northern Ireland proceedings take precedence over the proceedings in this jurisdiction and that clearly she says this Court, therefore, has no jurisdiction.

26. There are a number of distinctions that arise in relation to Henry’s case, but it is also of assistance to note those distinctions because, in my view, they in fact strengthen the position taken by the husband in relation to this matter.  In Henry’s case, the respondent, who was an Australian citizen, and had lived with the appellant to the proceedings in Germany and Monaco.  After separation, the respondent returned to Australia and then brought divorce proceedings as well as property proceedings. 

27. The appellant then applied to dismiss the Australian proceedings in favour of proceedings which were said to be already on foot in Monaco. 

28. There, the trial judge and the Full Court of the Family Court both allowed divorce proceedings to go ahead in Australia, notwithstanding the fact that the parties to the marriage had never lived together as husband and wife in Australia and the majority if not the entirety of their assets were outside of Australia.  What the Full Court considered in relation to the matter were issues with regard to the appropriate considerations in relation to determining whether or not the jurisdiction of the Australian courts was available, in relation to any determination.

29. To that end, the judges of the Full Court made comment in respect of a number of prior decisions of the Court, and in particular made reference to the decision in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, where it was noted that the test was a test of a “clearly inappropriate forum”. In Voth’s case, the Court established the proposition that a party who has properly instituted proceedings in Australia is prima facie entitled to have them considered in Australia, unless the Australian jurisdiction was the clearly inappropriate jurisdiction. 

30. To determine whether it was an inappropriate jurisdiction, consideration would need to be given to whether the proceedings were vexatious or oppressive to the other party to the proceedings. 

31. It should be noted therefore that there are a number of distinctions between Henry’s case, wherein it was determined that it was the inappropriate forum to be heard and the situation that arises here.  The parties in Henry’s case never lived together as husband and wife within the jurisdiction of Australia.  The majority, if not the entirety of their assets, were outside the jurisdiction of the Commonwealth of Australia. 

32. Here, the parties did reside together in Australia.  As appears unchallenged, the parties entered Australia in January of 2010 and continued to live here as husband and wife and in fact family unit involving the two children until separation, some two years and three months later. 

33. The husband has not left the jurisdiction, other than, of course, for the purposes of holiday or other business travel, and continues to maintain his residence in Australia.  The wife does not challenge that that was the case and also notes that the parties did, once living in Australia, purchase property and, if you like, fully involve themselves within Australian society, both as a family and as property owners. 

34. It is clearly distinguishable from the circumstances that arise in Henry’s case, in that there was that direct connection as a family unit in Australia, rather than was the case in the other determination.

35. It is also noteworthy that in Henry’s case, as I understand the particulars provided, the proceedings were commenced by the applicant after proceedings were commenced in Monaco, and with knowledge that such proceedings had been brought.  That was not the situation here, as is submitted and I accept, essentially the proceedings in Northern Ireland and Australia were commenced contemporaneously.  They were within a matter of a few days of each other, and, as I have indicated, if there is to be argument as to a distinction to be drawn between lodgement and filing, then in fact the filing of the proceedings and the application of the seal of the Court on 26 June 2013 is prior in time to the application of the seal of the Northern Ireland courts on 2 July 2013. But as I previously noted, that is not, in my view, the appropriate determinant, in relation to the proceedings. 

36. What is necessary is simply to consider whether there is a basis upon which it could be considered that Australia was an inappropriate forum for the determination of the divorce.  To do so, it is necessary to consider the legislative framework upon which an application for divorce is brought, and the legislation clearly provides that a decree for the ending or dissolution of a marriage can be made under the Act, when there is a personal connection by way of citizenship, domicile or ordinary residence, and then consideration of an appropriate finding available, that the parties have lived separate and apart for a period of at least one year prior to the filing of the application, as well as a determination that the marriage had broken down irretrievably. 

37. All of those factors are available in relation to the proceedings, and as was noted by Brennan J in Henry’s case, so long as there is a connection with the requirements of the Family Law Act, then it matters not which proceedings were commenced first in time. It is noteworthy that whilst Brennan J made those comments in relation to the matter, he provided a dissenting opinion which led to his determination that the appeal should be upheld in relation to the proceedings.

38. The majority, however, also gave a decision in relation to the matter, but on slightly different grounds.  In the majority decision, the comment was made more particularly about the consequences of the proceedings brought in two different jurisdictions, and whether in fact there was a prima facie right to have one jurisdiction prevail over the other. 

39. Interestingly, however, the majority, though disagreeing with Brennan J in relation to the appeal being upheld, spoke about the need, as I commented previously, for there to be evidence before the Court of any prejudice that might arise, in relation to proceedings being continued in one jurisdiction or the other.  Comment was made by the majority to the decision of the Court previously in Gilmore v Gilmore (1993) FLC 92-353, where it was noted that there was an onus on the applicant for a stay to demonstrate why Australia is the clearly inappropriate forum.

1. No such information has been provided whatsoever in relation to this matter other than, as I said before, the bland statement that there was an FDR hearing listed for the 30 January 2014 and that therefore, as there was an appearance by the husband in relation to the matter, that the jurisdiction of the Northern Ireland courts takes priority over the jurisdiction of this Court. 

2. There is no presumption in my view that can be raised in relation to this matter, and more particularly, it is of course clear that the onus to convince the Court or satisfy the Court that that might be a matter prejudicial to the wife has not been provided, in relation to the proceedings.  It is important that those considerations be looked at in relation to this matter because, as I noted previously, the legal representatives for the husband indicated that this matter was, at least before this Court, an application for divorce simpliciter. 

3. No other orders were sought in relation to the matter and, in accordance with the law of this country, the husband is entitled to proceed with the divorce, unless there were proper grounds to preclude that divorce.  Issues of prejudice, whether the proceedings were brought on the basis of being vexatious or oppressive need to be addressed, but they can only be addressed in circumstances where the wife has outlined the material that she relies upon, so as to convince the Court that it is not proper to exercise the jurisdiction with which it is vested.

4. I am satisfied that there is no information before me which would suggest that there is oppression of the wife or prejudice specifically in relation to the proceedings brought in Northern Ireland.  

5. As I noted previously, the indication from the bar table was that the husband acknowledged that there were ancillary proceedings in Northern Ireland and that he had instructed legal representatives to represent him in relation to those ancillary proceedings.  More particularly, the legal representatives for the husband here noted that the husband did not seek in any way to suggest that the granting of the divorce, if it were to be granted in this jurisdiction, would be used as some means to preclude further resolution of ancillary proceedings in Northern Ireland.  Rather, it is simply an application brought by the husband to conclude the marriage between he and the wife. 

6. Noteworthy, also, is the fact that the husband seeks simply to bring the action to an end in a straightforward and, one would think, inexpensive way.  To do so here, will bring the matter to a close, at least insofar as the divorce is concerned.  It will involve little or no expense for the wife, it being the case that apart from two items of correspondence and a filing of a two page response, there have been no expenses incurred in this jurisdiction.  To stay the proceedings as sought by the wife or to find that there is no jurisdiction in this Court can have enormous consequences, both financially and, one would think, emotionally for the husband. 

7. Firstly, he would be required to defend the proceedings brought in Northern Ireland, because whilst here there is no fault sought to be relied upon in relation to the dissolution of the marriage in Australia, other than the fact that the relationship has broken down irretrievably, that is not the case in the application that is brought in Northern Ireland.  The wife seeks an order that the husband pay the costs of the proceedings and, more particularly, details in the material that is filed, some form of distress or duress brought to bear upon her, as a result of what she says were the factors that led to separation. 

8. As I understand the material filed by the husband, he denies such allegations, and if that is the case, then it would clearly be necessary for him and the wife to incur significant further expense in relation to the contest of an issue which, in this jurisdiction, is simply not relevant at least insofar as the decree of divorce is concerned. 

9. For the reasons that I have given therefore in relation to this matter, I am satisfied that this Court is appropriate and does have the appropriate jurisdiction for the determination of these proceedings and that, in accordance with the legal requirements of the Family Law Act, the husband has the appropriate domicile or residence within the country to bring proceedings, that there is the appropriate connection with Australia for a divorce application to be heard, and more particularly, I find that the marriage between the husband and the wife has broken down irretrievably and that it is appropriate that an order for the divorce be granted, and I so order.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Coker

Associate: 

Date:  15 January 2014