Garrett & Cowell

[2007] FamCA 778

FAMILY COURT OF AUSTRALIA

GARRETT & COWELL [2007] FamCA 778

FAMILY LAW – PROPERTY - Application by husband to dismiss property proceedings brought by wife in Australia – Parties reside in Switzerland and court proceedings instigated in Switzerland – Test of clearly inappropriate forum – Husband’s application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Garrett

RESPONDENT: Mr Cowell

FILE NUMBER: SYF 3566 of 2006

DATE DELIVERED: 16 July 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 16 February 2007

WRITTEN SUBMISSIONS RECEIVED: 30 March & 20 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Hudson Henning & Goodman

Orders

1. The husband’s Application in a Case filed 16 October 2006 at the Sydney Registry of the Family Court of Australia is dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3566  of 2006

Ms Garrett

Applicant

And

Mr Cowell

Respondent

REASONS FOR JUDGMENT

[The parties to these proceedings are divorced but for convenience and ease of identification they will be referred to hereafter as ‘husband’ and ‘wife’ respectively]

Proceedings

1. By an application filed in this court on 3 August 2006 the wife seeks orders for property settlement. The application is brought pursuant to s 79 of the Family Law Act 1975 which governs property settlement consequent upon the breakdown of marriage. Pursuant to its provisions, the court may not make an order altering the interests of parties in property unless it is satisfied that, in all the circumstances, it is just and equitable to do so. In considering what order (if any) should be made, account must be taken of the matters referred to in s 79(4). The approach to that is well established: first, the parties’ property [whether owned jointly or separately and including superannuation entitlements] is identified and valued; secondly, an evaluation is made of their contributions as described in s79(4)(a) - (c); thirdly, consideration is given to the effect of a proposed order on the earning capacity of either; fourthly, evaluation is made of matters referred to in s 75(2) so far as they are relevant and adjustment made to their contribution entitlement accordingly; and finally, the outcome is reviewed overall against the requirement for it to be just and equitable (eg. Ferraro and Ferraro (1992) 16 Fam LR 1).

2. The husband responded to this application by filing two applications.  One was an Application in a Case filed 16 October 2006 in which he sought an order that her application be dismissed and costs.  The other was an Application for Final Orders filed 27 October 2006, also seeking its dismissal and costs. 

3. The first is the application now being determined though the outcome of that will have a bearing upon the fate of the second.  The order sought is dismissal rather than a permanent stay but, however worded, it is common ground the decision required is whether the wife’s proceedings for property settlement should be permitted to continue to be heard in this court; more particularly, whether this court in Australia is a clearly inappropriate forum in which to determine the parties’ property settlement. 

4. The onus of establishing that is on the husband who seeks that ruling. 

5. To place the decision in context, a brief account will be given of historical matters related to the parties’ relationship and property, court events here and in Switzerland will be outlined, and reference will be made to the law that governs the test to be applied to the facts before discussing and weighing the relevant considerations and expressing a conclusion. 

Evidence

1. The evidence relied upon by the wife is:

   ·wife’s affidavit filed 11 December 2006

   ·wife’s financial statement filed 3 august 2006

   ·wife’s further affidavit filed 2 February 2007

   ·affidavit of her lawyer in Switzerland, Christine Bouteiller, filed 11 December 2006.

2. The evidence relied upon by the husband is:

   ·husband’s affidavit filed 16 October 2006

   ·husband’s financial statement filed 6 November 2006

   ·husband’s affidavit filed 17 January 2007

   ·affidavit of his lawyer in Switzerland, Michael Salzer, filed 9 February 2007

   ·affidavit of Mr Salzer sworn 14 February. 

3. The wife contends the second affidavit of Mr Salzer is worthy of little or no weight given its unsupported conjecture and hearsay content. 

4. There is inadmissible material in all the affidavits, including argument and submission amongst other things, and not just Mr Salzer’s second affidavit.  But the matter has proceeded by way of summary hearing with no testing of any of the evidence and so it all remains for consideration though questions of weight do arise with respect to inadmissible passages. 

5. Plainly there are a number of disputes about what happened at one point or another in the course of the parties’ relationship.  Given the summary nature of the hearing, the background to follow shortly is not to be construed as constituting findings on any disputed facts but merely to give sufficient setting for the decision required.  There is also dispute about other matters such as their past intent in moving to Switzerland, the wife’s future intentions with regard to her residence, and different interpretations are advanced about the conditions and meaning of their residential status in Switzerland, more particularly the wife’s.  It will be necessary to say something about these contentious issues later, in light of the evidence. 

Submissions

1. The matter has taken a somewhat unusual course.  At the hearing the evidence was identified and relatively brief submissions were made by counsel appearing for both parties.  But before delivery of judgment the wife dispensed with the services of her advisers and sought to re-open the case to make further submissions.  This was disputed and ultimately a ruling was made permitting her to do so and a timetable set for lodgement of further written submissions.  Those submissions form part of the court record and will not be repeated in any detail here. 

Parties’ background

1. The husband (45) is a professional with an postgraduate qualifications.  The wife (43) holds an honours degree and she completed postgraduate studies in 2001.  Both were born in Sydney and both are Australian citizens.  They met in 1995.  There is dispute about when they began living together – either May 1997 at H [husband] or December 1996 at L [wife].  They married on … August 2001 and the following month, September 2001, they moved to live in Switzerland by reason of the husband’s employment.  They separated in Switzerland on 10 April 2005.  They both continue to live there though there is argument directed to the wife’s intentions about where she will live in the future.  They were divorced [in Australia] in late August 2006. 

2. They have three children: S (9) born in August 1997, C (8) born in April 1999 and L (2) born in June 2005.  They are Australian citizens.  The wife has a daughter from a previous relationship: E (16) born in January 1991 who also lives with her.  At the time they moved to Switzerland E was aged 9, S 4, and C 2 ½ years.  L was born in Switzerland. 

3. Since moving to Switzerland and before their separation the parties made two return trips to Australia - in 2002 and April 2003.  Since the separation the wife has travelled, accompanied by L, once to Australia - in July 2006 for approximately one month during which her divorce application was heard.

   
   

   E returned to Australia in October 2005 to spend some time with her father.  

4. Before their departure for Switzerland there were certain property transactions in Australia.  A summary follows:

   (i)According to the wife, after they met the husband purchased a unit in L where he then lived.  She and her daughter regularly spent time there until December 1996 when they moved in.  She and her daughter moved back to her parents’ home while they searched for other premises to rent and the husband joined them after a tenant was found for the L unit. 

   (ii)In the meantime, according to the wife, in late 1996 they jointly inspected properties with a view to purchasing one as a family investment and in January 1997 they completed the purchase of a unit at C for $220,000.  It was agreed, so the wife contends, the title and mortgage would be in the husband’s name.  It was rented out.  The husband, on the other hand, contends he purchased the C property prior to the commencement of their relationship for $225,000 and that the wife was not involved in the research process.  He maintains the C property was valued at $272,825 when they began living together around May 1997. 

   (iii)In May 1997 they moved together into rented premises at O.  Their first child was born in August of that year.  The wife was responsible for the care of the children and continued with her university studies while the husband was employed full time. 

   (iv)In early 1998 [they differ about the timing] they jointly purchased a home at G for $421,000.  They also differ about the source of the deposit though the wife contends the 10% required was paid by the husband as to $30,000 from his savings and she paid $12,100 from her savings while the balance was borrowed by way of a U mortgage as to $335,000 and an I loan as to $35,636 in joint names.  They lived in this home until shortly before their departure for Switzerland in September 2001. 

   (v)The husband’s income was used to pay the mortgages on all three properties and the wife says her university stipend was used for household and family expenses.  There was a brief separation during 2000-2001. 

   (vi)In May 2001 the L property was sold for $435,000.  The proceeds were largely used to reduce mortgage debt though the debt was later increased to pay capital gains tax. 

   (v)The wife completed her doctorate thesis in August 2001 just prior to their departure for Switzerland. 

5. After they made the move to Switzerland the husband continued to be employed full time until his position was terminated in late 2004.  He was unemployed until he obtained another position in April 2005, around the point of their separation.  The wife, in the meantime, had obtained some part time work as a teacher. 

6. Since they have lived in Switzerland they have lived in various rented premises. 

7. Not long after their arrival they drew $20,000 from the loan account in Australia to purchase a motor vehicle.  They continued for a time to receive rent from both the C property and the G property. 

8. In September 2004, as noted earlier, the husband’s employment was terminated and he was unemployed for a number of months.  Around this time they decided to sell the G property and in December 2004 they sold it for $695,000.  There had been discussion beforehand about what would be done with the net proceeds of sale and it had been agreed some of the funds would be deposited to a trading account in the United Kingdom for the husband to undertake options trading.  The net proceeds amounted to $424,485 or thereabouts.  Of that, $130,000 was paid off the C mortgage.  Controversy arose over what should happen to the balance but the upshot appears to be that some of it was deposited to the husband’s account with Credit Suisse in Switzerland and a proportion of that made its way to an account with brokers in London.  It may be that some of the sale proceeds were used to cover living expenses during the husband’s unemployment. 

9. There is also controversy about whether or not there was an intention to use part of the sale proceeds to acquire a home in Switzerland.  The husband’s assertion of various inspections and offers is disputed by the wife but whatever the case, they have not acquired any realty in Switzerland, residential or otherwise. 

10. When their marriage was drawing to an end around April 2005 the wife transferred 185,000 Swiss francs from the husband’s Credit Suisse account to her own account.  She attributes this to her need to ensure she had funds as security for the family’s day-to-day living expenses in the light of a threat the husband had made to her about ending up with nothing.  She says she later informed him what she had done.  She transferred 5,000 francs back to his account when she learned he had not received unemployment benefits.  For his part, the husband gives an account of the difficulties he experienced at the time because of her unilateral action on the account. 

11. It was also around this time of separation that there was activity with the husband’s superannuation.  He had an entitlement with the AMP Superannuation Fund in Australia.  A letter of 8 April 2005 reflects an entitlement of $167,876.19 being rolled over from that fund to the Cowell Superannuation Fund.  However, it is the wife’s ‘understanding’ [there is no source identified] he did not deposit the funds into the Cowell fund and she says she does not know what he did with the money.  For his part, the husband says a cheque for the amount of his entitlement was sent to the wife’s parent’s home in Sydney where it remained for some months and it was eventually cancelled because it was not presented; so the funds were ‘returned’ to AMP, facts he alleges are known to the wife.  This, and other disputes about the history, cannot be resolved here. 

12. The wife also contends there was some dealing with the husband’s superannuation entitlements in a fund in Switzerland.  In April 2005 an amount of 47,494 Swiss francs was rolled out into an account with the Kantonalbank. 

13. When they separated in April 2005 the husband cancelled their Credit Suisse account and closed all credit cards leaving the rent and many bills unpaid, so the wife alleges.  The wife says she relied on the joint savings she had transferred earlier to her own account to meet expenses for herself and the children.  In July 2005 the husband sent to the wife for payment a land tax bill for $10,500 related to the G property.  It remains unpaid. 

14. In July 2005 the wife placed a caveat over the title of the C property.  The husband views this as unwarranted because there could be no cause for concern that he would sell or further encumber the property or take the proceeds out of Australia. 

Litigation history – Switzerland and Australia

1. Following separation there were unsuccessful negotiations for a short time about financial issues and the children’s arrangements.  But within weeks the husband instituted court proceedings in Switzerland.  Both parties provided a bundle of documents related to those proceedings.  Those provided by the wife are for the most part an English translation while those provided by the husband are in the German language.  They do not seem to be a complete set of the documents lodged in the courts there but that is of no real moment.  In what follows there may well be error in their description or interpretation, but it is a chronology sufficient for this decision. 

2. On 28 June 2005 the husband commenced court proceedings in Switzerland when he made a number of claims and in due course the wife filed documents also making claims [see Annexure A to the wife’s affidavit]. 

3. On 15 February 2006 a ruling was made by the Court President on those claims [see Annexure A].  The translated document sets out a summary of the (final) claims made by each party before recording the court’s ruling which covers matters such as the sole use of the apartment, furniture and provision of the motor vehicle to the wife; the grant to the wife of the care of the parties three children and rights of visitation to the husband; provision was made for the husband to sign an application to obtain L’s identification documents; provision was also made for the husband to pay for the upkeep of the three children, alimony to the wife, and to pay to the wife child allowances received by him for E.  Apart from the matters mentioned and the question of costs, there the ruling at 5.2 was -

   ‘5.2 It is established that the parties have given a mutual declaration that they will not leave Switzerland with the children permanently or for an extended period without informing the other parent in advance.’

   and a ruling at 9, which apparently governs the date on which property is evaluated for division and which, in turn, is linked to the dissolution of their marriage -

   ‘9. On the basis of Art. 176 Para. 1 No. 3 ZGB the separation of the matrimonial property is ordered with effect from 28.06.2005.’

4. There is material from the wife asserting failure by the husband to fully comply with the terms of these orders, which he disputes.  More particularly, the disputes surrounds compliance with the obligation to pay child allowances, maintenance and child support as well as payments from the husband’s bonuses [including disputes about the husband’s disclosure of relevant documents related to bonus payments].  The accuracy of one position or the other cannot be determined and no purpose is served in repeating the details of the case argued in their affidavits.  Quite apart from this area of dispute, they propound arguments about the magnitude of the financial provision the husband pays to the wife and whether it is above or below the Swiss ‘legal existence minimum’. 

5. On 8 May 2006 the wife filed an appeal against 15 February orders but later that month, on 31 May, she withdrew it and this was confirmed by the court on 19 June 2006, thereby rendering the ruling of 15 February absolute. 

6. On 29 May 2006, a couple of days before she withdrew her appeal, the wife filed an application for divorce in the Federal Magistrates Court in Sydney.  It was made returnable on 27 July 2006.  It is the husband’s evidence that prior to this he had repeatedly asked the wife to commence divorce proceedings with him in Switzerland [Swiss law requiring their joint participation, apparently, prior to the expiration of 2 years from their separation] and she did not do so. 

7. On 25 July 2006, at which time the wife was in Australia, the husband filed an application for marital property orders in the court in Switzerland and he sought at the same time an urgent interim injunction freezing the wife’s bank accounts.  No notice of the application was given to the wife at the time and the injunction was heard the following day on an ex parte basis. 

8. On 26 July 2006 the court made provisional orders granting an injunction freezing the wife’s account up to an amount of CHF 180,000.  The case presented by the husband to secure the order appears to be set out on the face of the ruling [see Annexure B to the wife’s affidavit].  Given the withdrawal of the funds from the Credit Suisse account had occurred some 15 months earlier and there had been proceedings for financial orders in the meantime, the face of the ruling suggests the basis of his claim for urgent ex parte relief was his fear that the wife would secretly remove the amount withdrawn the year before despite receiving regular alimony payments, or that she would use a significant proportion of the amount without due need thus putting in jeopardy the implementation of the settlement of matrimonial property. 

9. On 27 July 2006, while the wife was present in Sydney, her divorce application was heard.  The husband was represented and his counsel sought a notation on the court record to the effect that there was jurisdiction for the court to hear the wife’s application but it was not appropriate for property proceedings to be commenced in Australia.  A decree nisi was granted and that became absolute a month later. 

10. On 3 August 2006 the wife filed an application for final orders for property settlement in this court. 

11. On 25 August 2006 the proceedings that resulted in the orders of 26 July in the court in Switzerland came back to the court after the wife had filed her objections or defence on 23 August.  As the ruling of the Court President makes apparent [see Annexure C to the wife’s affidavit], an ‘amendment of the provisionary measure’ was thought appropriate.  However, it was said that since the alimony paid on a monthly basis [excluding bonus payments] do not enable the wife to fully cover the minimum living costs for herself and the children she has to partially rely on using her own assets and as the husband was seen as not prejudiced by a partial release of the funds since he ‘only predominantly and not entirely financed’ the initial source of the fund, an amendment was made.  The provisional order enabled the wife to withdraw a maximum of CHF 10,000 per 12 months and the balance remains frozen pending the resolution of their property dispute. 

1. On 5 September 2006 the husband filed a notice of address for service in this court in respect of the property proceedings instituted by the wife. 

2. On 6 September 2006 the husband filed an application in the court in Switzerland seeking recognition of the divorce granted in Australia and about ancillary issues including joinder with his property application filed 25 July.  As I apprehend it, the divorce and recognition of it in Switzerland would put him in a position to progress his property claim to conclusion. 

3. On 8 September 2006 orders were made by the court joining the two applications and directions were made for the wife to lodge her counterplea by 28 September 2006. 

4. On 12 September 2006 an order was made by the court continuing the order of 25 August. 

5. On 4 October 2006 the court in Switzerland suspended proceedings up to 31 December 2006 [see Annexure D to the wife’s affidavit], since extended further.  This was done to allow the husband’s application for dismissal of the wife’s property claim in Australia to be heard and determined. 

6. On 16 October 2006 the husband filed an application in a case seeking the dismissal of her property settlement application, the application now being determined. 

7. On 27 October 2006 the husband filed a response to the wife’s application for final orders, also seeking its dismissal. 

8. On 15 January 2007 the wife filed an application in the court in Switzerland seeking an injunction freezing the husband’s S share account.  On 17 January 2007 an order was made [a copy is annexed to her affidavit but in the German language] and this is said to have granted her application provisionally with the husband to reply.  The application, the wife says, related to evidence he had given in his financial statement filed in this court of having CHF 90,000 in that account and she brought the application by reason of his non-compliance with the orders of 15 February 2006. 

Disputed issues

1. As noted earlier, it is not intended to repeat the submissions but it will be convenient here to mention some issues that were argued either in affidavits or in the submissions. 

2. As mentioned earlier, there is controversy about a number of matters related to the move to Switzerland and their current and future status there. 

3. The first relates to the parties’ intention in making the move to Switzerland; that is to say, whether it was intended to be permanent.  The husband argues the case in his affidavit that the move was to be a permanent relocation and this had the support of the wife at the time.  The wife disputes it and to support her argument she points to a letter from the husband written prior to their separation to the Roads and Traffic Authority in New South Wales asserting their move and residence out of Australia to be temporary [ that is, asserting he and his wife ‘are Australian residents temporarily living overseas in Switzerland’].  In the circumstances I am not persuaded their intent at the time was as the husband maintains. 

4. It seems to be common ground they entered Switzerland with the husband holding a Residency Permit [B Permit] which entitled him to work and the wife’s residency status [also a B Permit] was in some way tied to or dependent upon her husband’s status and his support. 

5. The husband maintains they are required to renew their residency annually and the wife has independently and successfully renewed her residency status twice since the separation.  He refers to the ‘principal concern of Swiss authorities’ being whether the spouse has independent financial means, but for obvious reasons no weight could be given to that.  The wife offers quite a different account of her situation which she alleges is linked to her financial dependence on the husband and includes the proposition that she is not permitted to work in Switzerland except if an employer is prepared to apply for an annual permit. 

6. The wife’s position is discussed to and fro in the affidavits but there is no common ground or agreed statement about it and so her situation is unclear.  In my view the controversy or uncertainty is not resolved by paragraph 8 of Mr Salzer’s affidavit because it remains at odds with the inference arising from paragraph 6 of Ms Boutellier’s affidavit [calling it ‘fragile’] and there is no alternative authoritative source of information sufficient to clarify the position. 

7. The wife’s right to continued residence in Switzerland and her consequent entitlements may well be as the husband maintains, but that has not been established from a sufficiently authoritative source and, as I find, there are uncertainties about her position, not just about her continuing residency status but about her entitlements and obligations attaching to that. 

8. Obviously they have lived in Switzerland for almost six years and they both remain living there at this time.  They both remain Australian citizens and nothing is said of any proposal to change that.  But the future is not so clear.  The husband says, and there is no reason to doubt it, that he intends to live there permanently.  That assumes of course that his residency status permits that but, again, there is no reason to doubt that option will be available to him.  He maintains the wife intends to continue living in Switzerland in the future also, though she says otherwise. 

9. The wife says she is not able to use her education qualifications, more particularly her doctorate, in any work she might obtain in Switzerland and her German language skills are not as strong as the husband’s.  He was supported by his employer with learning the language and he has quite strong skills in the area. 

10. The wife, I accept, has family with whom she maintains a connection living here in Australia.  Also beyond doubt is the fact that, apart from Australia being the country of her birth, she was educated here and she had lived here before the departure for Switzerland, save for earlier travels overseas. 

11. Whatever her intentions about future living, it is accepted that the children have lived in Switzerland for a number of years, they attend school there, L was born there, and the husband has visitation rights pursuant to orders made in Switzerland.  If the wife’s position about her wish to return to Australia is accepted because the onus to establish the contrary has not been discharged by the husband [the hearsay statements of the lawyer’s evidence do not change that] it might be said with some confidence at this point that the husband would not consent to the move.  There are court orders in Switzerland recording their mutual agreement not to move permanently out of Switzerland without the consent or prior notice to the other.  If it came to a contest on the topic, it is impossible to say what would be the result of adjudication on the wife’s application to relocate to Australia with the children.  Amongst other considerations, there is her daughter, E, whose father lives in Australia and whose schooling [secondary at least] is coming to an end in Switzerland.  For the immediately foreseeable future, however, for the purpose of this decision, it can be taken she will continue to reside in Switzerland. 

12. There are also arguments about where the majority of their property is located – Switzerland or Australia.  The husband asserts that the preponderance of property is located in Switzerland but that proposition seems to rely in part on the figure he gives for the value of the real estate in Sydney and nowhere is that said to be agreed.  The differential is not large in any event [$304,000 Australia and $391,000 Switzerland].  On the other hand, the wife raises his superannuation entitlements in Australia [about which there is disputed evidence related to his dealings with the fund around the time of separation] and there is a relatively significant amount of money in an account in London. 

The law

1. In Kemeny (1998) FLC 92-806, quite a different case on the facts now being considered, I discussed the law in addressing the question of forum. In short, the majority of the High Court in Voth v. Manildra Four Mills Pty Ltd (1990) 171 CLR 538 adopted the test of ‘clearly inappropriate forum’ to be applied when a party to proceedings in a court in this country seeks to stay those proceedings in order to allow the same matter to be determined in a foreign court having the necessary jurisdiction, thus confirming its rejection in Oceanic Sun Line Special Shipping Co. Inc. v. Fay (1988) 165 CLR 197 of the statement by the House of Lords in Spiliada Maritime Corp v. Cansulex Ltd [1987] AC 460 applying the ‘clearly more appropriate forum’ test, a question that depends on the ‘general circumstances of the case, taking into account the true nature and full extent of the issues involved.’ 

2. As Voth makes clear, confirmed by the later High Court decision of Henry v. Henry (1995) 20 Fam LR 171; 185 CLR 571, the local court will be seen as a ‘clearly inappropriate forum’ if the 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’.  Having stated the principle in this way, the court went on [see p 587 CLR]:

   ‘…..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 of relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance”.  In this last 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 may be tried suitably for the interests of all the parties and for the ends of justice.”’

3. There is no argument from counsel about the test to be applied.  The difficulty is more in its application to the facts. 

Discussion

1. First of all, what can be said is that the property proceedings instituted by the wife in this court relate to the parties’ marital relationship and concern the distribution of their property consequent upon the breakdown of their marriage.  From the evidence about the property proceedings instituted by the husband in Switzerland, it can be said with some confidence that the proceedings in each court would involve different factual issues by reason of the different law to be applied in bringing about that end, but it is the same legal issue between the same parties. 

2. The different substantive law that would be applied in Australia compared to Switzerland seems to be a significant string to the husband’s application and understandably he resists what is obviously universally regarded amongst advisers as the advantage to the wife were she able to maintain the proceedings here.  In Henry the majority, commencing p 588, discussed and disapproved what the Full Court of the Family Court had said at one point in Gilmour v Gilmore (1993) 110 FLR 311 on the basis there were elements to it that may be misleading. One element was the reference to the significance of the substantive law governing the matter in issue. Their Honours said at p 589:

   ‘……Voth is not authority for the proposition that “[t]he selected forum will not be seen as inappropriate ‘if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties’”.  Rather, it was said in the majority judgment that “the substantive law of the forum is a very significant factor in the exercise of the court’s discretion, but the court should not focus upon that factor to the exclusion of all others.’

3. That said, the difference in the substantive law that would be applied here and in Switzerland is noted, including the obviously conceded proposition that the wife would have an advantage in property distribution under the law in Australia. 

4. Next it can be said with confidence that both this court and the court in Switzerland have jurisdiction to hear the property applications and determine the parties’ property entitlements.  Proceedings may be instituted in this court with respect to property if either party (a) is an Australian citizen; (b) is ordinarily resident in Australia; or (c) is present in Australia at the time the proceedings are commenced.  The wife qualifies certainly under the first and very likely the third if she was still in Australia on 3 August. 

5. There is also the question of the wife’s prima facie right to have the proceedings continue in the forum whose jurisdiction she has invoked without any irregularity.  As was said by the majority in Henry at 589, again critical of a passage from Gilmour as tending to mislead by giving it undue emphasis, having regard to what had been said in Voth:

   ‘….But there was a statement to the effect that, in some cases, too much weight may have been given to “the notion that a proceedings regularly invoked provides a prima facie right to have the proceeding continue in that forum.

   There may be cases in which the notion of the prima facie right has some role in determining whether or not a stay should be granted.  For example, it may well be significant in what is otherwise a finely balanced context.  But there are also cases in which that notion can do little more than indicate that the onus lies on the parties seeking a stay to establish that the chosen forum is clearly inappropriate.  Indeed, there may be cases where the forum is so clearly inappropriate that the notion of prima facie right can have no real bearing on the matter, as, for example, if the cause of action arose in a country in which the parties reside or carry on business and their controversy can conveniently be litigated in that country.’ 

6. In my view, the wife’s prima facie right does have a role and is of some weight in the overall balance of all considerations.  She is an Australian citizen, as is the husband. 

7. It is relevant to consider whether either court would recognise the other’s orders once made, but absent any argument to the contrary, it can be accepted here that each would do so. 

8. As noted already, the parties’ property is to be found in Australia [real estate and superannuation], in Switzerland [chattels, superannuation, bank accounts], and in London [bank account].  There is no reason to believe that if enforcement of orders became necessary there would be any greater difficulty in doing so in the court of one country than the other – by which I mean taking enforcement proceedings and having them heard as distinct from considerations more person to the parties circumstances.  There is some reference to advantage from the Australian court if enforcement related to the account in London were to become necessary, but there is no substance in this. 

9. There is no suggestion that either court has an advantage by providing more effectively for complete resolution of the property dispute. 

10. The order of filing proceedings would seem to favour the husband in that the proceedings he instituted Switzerland related to property were first in time though the grant of the divorce in Australia last July entitled him to advance the application earlier than would otherwise have been the case given the absence of the wife’s co-operation in the 2 year period after their separation. 

11. But more significant than the order of institution, in my view, is the fact that the property proceedings have not advanced in any significant way in either court at this point – at least, nothing to the contrary has been advanced in the evidence or in any submission.  The finalisation of the proceedings here were delayed initially pending receipt of submissions after dispute about re-opening and the proceedings in Switzerland were stayed pending the finalisation this decision. 

12. A serious consideration is the fact that refusal to dismiss the wife’s application would run the risk of parallel proceedings, with respect to the same subject matter and essential controversy being conducted in two courts in two different countries.  Again drawing on the majority in Henry:

    ‘Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia.  In Union Steamship Co. of New Zealand Ltd v. The Caradale (1937) 56 CLR 277 at 281, Dixon J. observed of that latter situation that ‘[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration’.  From the parties’ point of view, there is no less – perhaps, considerably more – inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.’

13. Their Honours continued:

    ‘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.

    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.’

14. As noted earlier, the court in Switzerland has stayed the proceedings there pending the outcome of these proceedings and it is not known what step would be taken if the husband’s application were dismissed.  Nor has anything been said of the law that would be applied by the court in Switzerland were that to occur.  In any event, in this decision I regard this risk of duplication as a weighty factor. 

15. As nothing has been said about the costs incurred – related to the property proceedings, not other proceedings here and/or in Switzerland – it can be taken not to be a relevant consideration in the view of either party.  In other words, it can be inferred that there have been no more costs spent in the property proceedings in one court or the other. 

16. I do accept as sufficiently established that there is a disparity in the facility each party has with the German language.  It may very well be, as the husband contends, that the court in Switzerland does provide an interpreter, but that is not to say assistance is given with translation of documents or with providing instructions to a legal adviser or with a litigant becoming familiar with the legal process and law to be applied.  I accept the wife would have the disadvantage of language in the proceedings in Switzerland whereas the parties would be on an equal footing on that score in Australia. 

17. Language facility is not an insignificant consideration by any means because it relates at least in part to the independence of a litigant and their capacity to make informed judgments as the matter progresses and to feel comfortable that communication problems are minimised and understanding is as complete as a first language can provide.  There may well be some additional hurdles involved for the husband in instructing advisers and participating in proceedings in Australia while living in Switzerland, but language is not one of them.  The parties being on a more equal footing by reason of both using their first language is a not insignificant consideration in my view. 

1. It is recognised they have not lived in Australia since September 2001 though they have visited, their youngest child was born in Switzerland, and the children all attend school there.  These are all sound connections with that country.  On the other hand, as Australian citizens, they both have a significant and relevant connection to this country, whatever uncertainty attaches to intentions about future residence.  Added to that, not insignificant property is located here, being the realty registered in the husband’s name and his superannuation entitlements.  These constitute strong connections with Australia. 

Conclusion

1. Weighed in the balance, I am unable to conclude that this court is a clearly inappropriate forum.  When these various considerations are taken into account, I am unable to find that the continuation of the wife’s property application would be oppressive to the husband in the sense that it would be seriously and unfairly burdensome for him and nor am I able to find it would be vexatious to him in the sense that such a course would be productive of serious and unjustified trouble and harassment.  It will require him to prepare his case according to the procedures of this court and for him to retain legal advice in Australia, if that is his decision, file evidence in this registry and argue his case at the final hearing according to Australian law.  But that does not put the proceedings in the category of oppressive or vexatious, more particularly when it is considered that there are counter-veiling considerations: the proceedings would be conducted in the parties’ first language, they maintain a strong connection with this country through their citizenship at least, the wife’s proceedings were properly invoked and she has a prima facie right to have the jurisdiction exercised, little seems to have been done in the property proceedings in either country and costs are not raised as a consideration, and there is not insubstantial property located here.  The risk of duplication is a concern and there are other factors pointing in the other direction, but none of it compels the finding that this court in Australia would be a clearly inappropriate forum to hear and determine the parties’ property settlement claims. 

2. It is acknowledged that child support and maintenance [or alimony] has been the subject of orders in Switzerland. But I do not regard that as sufficient to conclude to the contrary on forum. The fact of those orders will be relevant to any property orders made here pursuant to s 79 and can be considered in that light. The Full Court in Kemeny, upholding the decision in the particular circumstances of that case, said at 5.3.7:

   ‘…..this Court may be a clearly inappropriate forum to litigate one cause of action between parties whilst at the same time retaining jurisdiction to hear other disputes between the same parties.  We would, for example, see nothing inherently offensive in the notion that parties to a marriage might be required to conduct their child residence and contact matters in one country whilst being at liberty to conduct their financial disputes in another.’

3. I should add that I do not consider there to be anything sufficiently cogent in the allegation that the wife misled this court by failing to disclose ongoing proceedings in another jurisdiction when filing her application in this court. 

4. For those reasons the order is as set out earlier. 

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date:  16 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GARRETT & COWELL