Garner and Garner

[2011] FamCA 927

FAMILY COURT OF AUSTRALIA

GARNER & GARNER [2011] FamCA 927

FAMILY LAW – PRACTICE AND PROCEDURE - Stay of proceedings

Family Law Act 1975 (Cth)
Foreign Judgments Act 1991 (Cth)

Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538
Oceanic Sun Line Special Shipping Co Inc. v. Fay (1988) 165 CLR 197
Henry and Henry 1995-6 185 CLR 571

APPLICANT: Ms Garner

RESPONDENT: Mr Garner

FILE NUMBER: SYC 2537 of 2009

DATE DELIVERED: 9 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING: Dealt with by written submissions

REPRESENTATION

COUNSEL SUBMITTING FOR THE APPLICANT: Mr Lethbridge SC with Ms Eldershaw

SOLICITOR FOR THE APPLICANT: GJ Gooden, Lawyer

COUNSEL SUBMITTING FOR THE RESPONDENT:
Mr Blackah

SOLICITOR FOR THE RESPONDENT: Beck Dunwoodie & Associates

Orders

1. The wife is to forthwith do all such things and execute all such documents so as to cause to be delivered to the Australian solicitors for the husband an effective document of transfer to the husband of her interest in the parties’ real estate property at E Town in Country B.  The said solicitors are to hold the said document in escrow pending an order as to its disposition by the court at East Vaud District Civil Court Country B (“the Country B Court”).

2. The husband is to forthwith do all such acts and things and execute all such documents to cause to be delivered to the Australian solicitors for the wife a memorandum of transfer in registrable form to the wife of all his right, title and interest in and to the property situated at C Street, D Town in the State of New South Wales, and the said transfer is to be held by the said solicitors in escrow to abide the order of the Country B Court as to its disposition.

3. On compliance with Orders 1 and 2 the proceedings between these parties are stayed pending the outcome of the proceedings between them in the Country B Court.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2537 of 2009

Ms Garner

Applicant

And

Mr Garner

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are ones in which the husband seeks a stay of proceedings commenced by the wife and continued pursuant to the provisions of an Amended Initiating Application filed in this Court on 27 January 2011.

2. In that application the wife seeks orders for the transfer of a certain property at D Town to her;  lifetime maintenance to be paid from the husband’s F Pty Ltd pension;  the husband’s obligation for maintenance to be secured against the husband’s interest in the property at E Town in Country B to be a first ranking mortgage;  security for maintenance including a requirement that the husband make provision for the payment out of his estate in the event of his death of a capital sum equal to the capitalised value of the wife's entitlement for life;  an indexing of the order for periodic payments with an option in the husband to capitalised portion.

3. The wife also seeks generally an order that the assets of the husband and the wife be divided between them in the portions of 60 per cent to the wife less the unencumbered value of the D Town property and the current capital value at the date of the order of the husband’s F Pty Ltd pension.

4. In response to the wife’s initiating application the husband sought orders that the proceedings commenced by the applicant be permanently stayed and costs.

5. The stay was sought in circumstances where the wife and husband have been actively involved in proceedings in Country B concerning their marriage and the division of their assets.

6. The wife opposes the stay on the basis that it is said by the wife that the husband has agreed to transfer the D Town property to her in any event; the husband denies that he has agreed to do so except in the context of a final property order and that it would be unjust and inequitable in the Court to order such a transfer other than in that context and certainly not unless there was a transfer to him of the rights the wife has in the certain property at E Town in Country B.

7. It has become clear on submissions that there is no current agreement between the parties for the exchange of these properties and the husband says he will not transfer the property to the wife save in the event that there is a final settlement of the matter which he says should be determined by the Country B Courts; the jurisdiction in which the parties have at considerable expense and at some length litigated prior to these proceedings.

8. The wife asserts that since she has been separated she has had the benefit of the property in which she resides.

9. The husband says it is by no means certain at this stage that the transfer of the property to her would be something that might not be in excess of the wife's entitlement to a division of assets under Country B law.

10. It seems generally accepted that such a division would be the nature of close to an equal division.

11. In support of his application for stay the husband asserts that orders of the Country B Court can be made binding on the husband for the transfer of Australian realty.

12. The wife asserts that that is not the case and that there are a number of issues arising as to enforceability; and even if the Country B Court had as suggested by the husband the power to order the execution of an Australian transfer document by someone on his behalf there is no evidence before the Court that those in charge of the registration of title to land would accept such a process as being valid.

13. The wife relies upon the provisions of the Foreign Judgments Act 1991 (Cth) (“Foreign Judgments Act”) as meaning that no foreign judgment in a matrimonial matter may be registered here under that Act.

14. An order for the transfer of realty is not a money judgment nor is it an action

    
    

    in personam for the purposes of section 11 of the Foreign Judgements Act because section (3)(i) expressly excludes from the definition of action

    
    

    in personam “a matrimonial cause or proceedings in connection with (a) matrimonial matters”.

15. It is further suggested by the wife that in any event were such an order to be made it would be an order given in a matrimonial cause or in connection with matrimonial matters and accordingly would not be recognised in Australia.

16. Whilst it might be thought practical to consider the operation of laws of contempt it is pointed out, and the Court considers correctly by those representing the wife, that such an order would only involve the imposition of a criminal sanction and would not advance the wife’s need to have a recognised transfer document executed.

17. It is proposed by the husband that this Court could make an order that he transfer the D Town property to the wife to take effect on the conclusion of the Country B proceedings and to conditionally stay the proceedings on that transfer being provided.

18. The wife however desires at this stage to deal with the D Town property and of course such a proposal would not permit her to do that.

19. The wife says she is prepared to transfer the E Town property to the husband but once again the husband asserts that that may not be an appropriate resolution of matters in accordance with the Country B Court order and so could result in prejudice accruing to him particularly having regard to the wife’s declared desire to deal with the property she would receive under such an arrangement.

20. The Court has considered the authorities in relation to forum and the law in this country was set forth in Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538.

21. Referring to Justice Dean’s decision in Oceanic Sun Line Special Shipping Co Inc. v. Fay (1988) 165 CLR 197 at 247.

22. The Court applied what has been described as a “clearly inappropriate forum test.”

23. His Honour Justice Dean said that the Court needed to be satisfied that “continuation of the Australian proceedings must be perceived in the sense of being” seriously or unfairly burdensome prejudicial or damaging or vexatious in the sense of being productive of serious and unjustified trouble and harassment.

24. In Henry and Henry 1995-6 185 CLR 571 their Honours Justices Dawson, Gaudron, McHugh and Gummow offered some criticism of the five-step test and adumbrated by the Full Court in Gilmore and Gilmore and said:

    it is prima facie vexatious and oppressive … 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.

25. The wife sought in 2006 orders of the Country B Court to preserve the marriage.  She sought orders in relation to the occupation of the Country B apartment.  Some three years prior to the commencement of the proceedings before this Court the wife has on three occasions invoked the jurisdiction of Country B Courts including an appellate court to oppose the husband’s divorce applications and to seek spousal maintenance.

26. The wife has consented to the appointment of the expert, Mr G and other experts.

27. It is asserted by the husband that some six witnesses will be required for the hearing in Country B.

28. The wife has instructed a Country B legal practitioner, both parties have incurred substantial costs in the Country B proceedings and it is asserted that as at

    
    

    31 December 2008 the wife’s legal costs in connection with Country B proceedings were a total of $426,000.

29. It is asserted that the Country B Court has the power to make orders with respect to the D Town property and there has been no assertion by the wife in the Country B proceedings that the proper law to apply is not Country B law.

30. It is asserted by the husband not gainsaid by the wife that the majority of the matrimonial property is located outside Australia.

31. It is clear that bringing the witnesses to Australia if that were to be required would be expensive, although modern technology could alleviate some of that cost.

32. The wife is currently receiving significant maintenance pursuant to orders of the Country B Court.

33. This is a marriage in which the Court is informed that the likely outcome of the Country B proceedings is an equal division of the matrimonial property.

34. It is a result which could be well within the range of results which either party might procure from this Court given that it is a long marriage, there are no infant children and both parties are retired.

35. The husband is servicing significant debt.

36. The wife has not sought to stay the Country B proceedings which seems to suggest that they remain on foot whilst the proceedings are also prosecuted here.

37. Although not determinative, it is noted that the Country B proceedings were commenced first in point of time and that the wife has participated fully in them.

38. The Court determines that it would be vexatious and oppressive in the circumstances of this case and that it would be seriously and/or unfairly burdensome, prejudicial or damaging and productive of serious and unjust cost to permit the Australian proceedings to continue.  However, having said that, the Court is mindful of the problems demonstrated in relation to the enforcement of orders which may be orders ultimately made by the Country B Court and accordingly, although the Court proposes to grant a stay, it will be conditional upon the husband executing a transfer in registrable form in favour of the wife to be delivered to the wife’s solicitors and held by them in escrow pending final order of the Country B Court as to its disposition;  the wife to execute like transfer of the E Town property to be delivered to the husband’s Australian solicitors and held by them in escrow pending final order of the Country B Court.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 9 December 2011.

Associate:

Date:  9 December 2011