GGOR & GS
[2006] FMCAfam 51
•6 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GGOR & GS | [2006] FMCAfam 51 |
| FAMILY LAW – Divorce – response objecting to jurisdiction – forum non conveniens – where husband is an Australian citizen and wife is a citizen of Japan – where previous proceedings in Japan have been completed – where no current proceedings in Japan – whether proceedings vexatious or oppressive. PRACTICE & PROCEDURE – Costs – arguable case – parties to pay their own costs. |
Family Law Act 1975 (Cth), ss.39, 117
Oceanic Sun Line Special Shipping Co Incorporate v Fay (1988) 165 CLR 197
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Henry v Henry (1996) 185 CLR 571 587
Ferrier-Watson v McElrath [2000] FamCA 219
| Applicant: | G O R G |
| Respondent: | S G |
| File No: | NCM 917 of 2005 |
| Delivered on: | 6 February 2006 |
| Delivered at: | Newcastle |
| Hearing date: | 6 February 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Ms Wade |
| Solicitors for the Applicant: | Turnbull Hill Lawyers |
| Solicitor for the Respondent: | Mr Hong |
| Solicitors for the Respondent: | Yukio Hayashi & Associates |
ORDERS
The Response objecting to jurisdiction is dismissed
In relation to the marriage solemnized on the thirteenth day of December 2001 I certify that the divorce order made by the Court on the sixth day of February 2006 takes effect from the seventh day of March 2006.
Parties to pay their own costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM 917 of 2005
| G O R G |
Applicant
And
| S G |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application for dissolution of marriage. The husband, who is an Australian citizen, seeks a decree dissolving his marriage to the wife which was entered into in Japan.
The wife has filed a Response objecting to jurisdiction. In that response she points out that the parties were married on 13th December 2000 in Japan, that they have resided in Japan since then, that the Applicant has been working in Japan for over five years whilst the Respondent is a Japanese citizen who has never lived in Australia and does not speak adequate English.
The parties have one child name A M G who was born in Japan on 11th October 2001. He currently lives in Japan.
The parties have already initiated a Court proceeding in the Family Court of Japan to determine maintenance and child support issues. An order was made in favour of the Respondent wife covering maintenance which is attached to the husband's salary by way of a garnishee order.
The order was made in the Family Court of Tokyo with these conditions:
Until the divorce order is made by the Court or until the parties resume cohabitation.
It is the Respondent's claim that it would be inconvenient and expensive for both parties to attend Court in Australia and that there would also be a need for the child to be looked after which would involve the parties in further expense.
The Applicant however says that there is no reason why the Court in this country should not exercise its jurisdiction under sub-section 39(3)(a) of the Family Law Act 1975. The Applicant is an Australian citizen and his citizenship connects him to the jurisdiction of the Court. There is a child of the marriage for which the Applicant says proper arrangements have been made and the parties have been separated for a period in excess of 12 months.
The parties did not separate less than two years after they were married so there is no need to require the parties specifically to attend counselling on that point and obtain a counselling certificate, nor does the Court need to be satisfied that there are special circumstances as to why the divorce should take place within two years of marriage.
The whole basis of the wife's application in her response is on the Forum non conveniens principle. The wife submits that the Court should decline to exercise its jurisdiction and order a stay of the proceeding on that basis. The wife submits that this Court is a clearly inappropriate forum for the resolution of the dispute.
The Respondent's solicitor Mr Hong has produced a detailed and useful Written Submission in which he sets out the law and, with respect, I propose to adopt it. In the two paragraphs, which to my mind, set out the law as it is understood in respect of divorce proceedings, he submits:
The Australian principle of forum non conveniens provides that the Court may decline to exercise its jurisdiction if the Respondent establishes that the Court is a clearly inappropriate forum for the resolution of the dispute. (See Oceanic Sun Line Special Shipping Co Incorporate v Fay (1988) 165 CLR 197 247-248 which was affirmed and applied in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 564-5, (see also Henry v Henry (1996) 185 CLR 571 587). The Respondent must show that continuance of proceedings within the forum would be oppressive and vexatious to them. The High Court in Henry v Henry treated the principle of forum non conveniens as applicable in Family Law proceedings.
In deciding whether the Court is clearly inappropriate, the Court may have regard to factors such as the parties' places of residence, factors of convenience and expense to the parties, the connection between the forum and the parties and their relationship, which forum can most effectively and completely resolve the issues in dispute and the party's ability to participate in proceedings in the forum.
The Respondent submits that the facts support her claim that the proceedings should be heard in Japan. She points out that she has never lived in Australia, that they have a child who was born in Japan who currently lives in Japan and has never lived in Australia and that she had already initiated Court proceedings for maintenance and child support issues. She submits that the Applicant has failed to comply with a maintenance order, so the Respondent was awarded a garnishee order and the Family Court of Japan has jurisdiction to grant a divorce.
The wife submits that ordinary residence is a preferable basis of jurisdiction to citizenship and domicile and that is more likely to indicate a real and substantial connection between the forum and at least one of the parties. In this case she submits it is clear that both parties plus the child regard Japan as their ordinary place of residence. Further she submits there are insufficient connecting factors for this matter to be heard in Australia because the parties' relationship had nothing to do with Australia.
The Respondent submits that the Applicant's Australian citizenship gives the Australian Court inherent jurisdiction, but that in the Respondent's view, the Court may lack jurisdiction, because citizenship does not necessarily denote a real connection between an individual and a state and each case must be assessed on its own merits.
Whilst it is true that the formal status of citizenship of one party to the marriage may not indicate an actual connection between the subject of the controversy in the forum, particularly in international cases, I am not persuaded that the Respondent's submission that an Australian Court would lack jurisdiction on the basis that jurisdiction is being claimed on the basis of citizenship. I am referred to the decision in Ferrier-Watson v McElrath [2000] FamCA 219 where the Full Court of the Family Court, even though it found that that Court had jurisdiction since the applicant was domiciled in Australia, declined to exercise jurisdiction on the basis the parties married in Fiji and spent their marital years there.
The Respondent submits that the High Court in Voth has looked at the availability of an alternate forum abroad capable of giving the plaintiff relief would be relevant to determining whether a forum is clearly inappropriate.
The Respondent submits that the consequence of divorce being granted in Australia is that the Respondent will have a serious difficulty in respect of maintenance and child support issues. She says that one of the conditions of the maintenance order obtained by the Respondent has the effect of compelling the Applicant to pay for maintenance costs of the Respondent until their marriage is resolved by either divorce or reconciliation.
Since Japanese Courts recognise foreign Judgments, if the divorce is granted the maintenance order of the Japanese Family Court will elapse and the Applicant would not be forced to pay any more maintenance until another proceeding is initiated by the respondent, either in Japan or Australia.
The Respondent submits that the Family Court of Japan is the alternative and the most appropriate forum that can provide a complete, effective and efficient resolution of the parties' dispute. As to convenience and expense to the parties, the Respondent submits that she is not able to travel to Australia at this stage and submits that it may be inconvenient for the Applicant to have the matter heard in Australia. Whether it is or not, the Applicant is here and represented and whilst the Respondent is not here, she is, if I may so, most ably represented by her solicitor Mr Hong.
In view of the fact that under Australian law an application for divorce where there is a child of the marriage normally requires the attendance of one party, but not necessarily both parties to the marriage, I do not see that there is any inconvenience to the Respondent in her not being here for the purpose of these proceedings. The Applicant is here and if the Court were of a mind to inquire as to specific matters relating to the welfare of the parties' child the Applicant is able to provide that evidence. As I said, although the Respondent wife is not here, she is legally represented.
There is no issue as to the factual matters, so the evidence of the Respondent is not going to be required to assist this Court or any other Court with jurisdiction in deciding the matters in issue. In my view, the Court must go back to a consideration of the clearly inappropriate forum rule which, as it was set out by the High Court of Australia in Henry v Henry, which is also reported in 20 Fam LR 171 where the High Court ruled that the principle in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 also applied.
Looking at Voth, the rule says that a stay of proceedings should be granted in the Australian Court only if it is a clearly inappropriate forum. What the Court must ask is whether the continuation of these proceedings in this 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.
It has not been submitted nor is it the case that these proceedings would be vexatious in the sense of productive of serious and unjustified trouble and harassment. The Applicant has submitted that it was his intention to bring these proceedings because he believed that in the course of his employment he would be back in Australia by now on a permanent basis, although that has not eventuated. He was also of the belief that a divorce in Australia would be relatively simply obtained and relatively low in cost. It was not his expectation that the wife would object to the jurisdiction of the Court as being clearly inappropriate.
It is a fact that, as Mr Hong submitted, that an Australian divorce will bring the Japanese maintenance order to an end. The fact that a Japanese Court would accept an Australian divorce decree would have the effect of bringing to an end the maintenance award made by the Family Court in Tokyo. At the same time however, if the divorce were to be obtained in a Japanese Court the maintenance order would be brought to an end.
I do not have factual evidence to provide any extensive analysis of the differences and similarities between Japanese divorce law and that under the Family Law Act. There is no issue as to the fact that divorce proceedings in this country and divorce proceedings in Japan are held separately or pronounced separately from proceedings for what we would call ancillary relief. There is no issue as to the fact that a Japanese Court would accept the validity of an Australian decree.
This is not a question where it is seriously submitted that one or other Court just does not have the jurisdiction. This matter has proceeded before me on the basis that the Courts in both this country and Japan would have jurisdiction.
The matter which to my mind is relevant and so relevant as to be decisive is the fact that there are no proceedings on foot in Japan for the dissolution of the marriage. There most certainly were proceedings on foot for maintenance and for enforcement of the maintenance by means of a garnishee. Those proceedings however have been completed.
There is, on the material before me, no evidence that the wife has commenced proceedings for a divorce in Japan. The fact is that there is only one Court in which there is a divorce application which is the Federal Magistrates Court of Australia.
In each case, the effect of the divorce will be to bring to an end the maintenance order made by a Japanese Court. It matters little if the Japanese Courts accept the Australian order if that divorce therefore is made by the Australian Court or the Japanese Court. As it is only this Court where there are proceedings on foot for dissolution of marriage, that to me is a factor which is one to which I would give significant weight.
In my view this Court does have the jurisdiction on the basis of the Applicant's citizenship. I have taken into consideration the fact that the effect of an Australian divorce on the existing Japanese orders will be the same as the effect of a Japanese divorce on the existing Japanese orders. In each case there will be a need for the wife to commence fresh proceedings to obtain a further maintenance order.
I am satisfied therefore that this Court is not a clearly inappropriate forum. As said by the High Court in Voth v Manildra Flour Mills Pty Ltd, a stay of proceedings should be granted in an Australian Court only if it is a clearly inappropriate forum and as I am satisfied that it is not, I find that not only do I have jurisdiction, but I am satisfied that I should exercise that jurisdiction.
I intend to do so now. In this case I find that the parties were married on 13th December 2000 in Japan. I find that the Applicant is an Australian citizen. I find that the parties separated on 23rd March 2004 and I find the marriage has irretrievably broken down. There is one child of the marriage, A M G who was born on 11th October 2001. I am satisfied that in all the circumstances, proper arrangements have been made for the child's welfare. I pronounce a decree nisi for the dissolution of the marriage. The decree will become absolute by operation of law in the usual way.
Under s.117 of Family Law Act, that section provides that subject to sub-section (2) in ss.117AA and 118, each party to proceedings under this Act shall bear his or her own costs. There are under sub-section (2A) a number of considerations that are relevant in considering what order if any should be made under sub-section (2) of s.117. They are the financial circumstances of each of the parties to the proceedings, whether any party to proceedings is in receipt of assistance by way of Legal Aid, the conduct of the parties to the proceedings, whether the proceedings were necessitated by the failure of a party to comply with previous orders of the Court, whether any party to the proceedings has been wholly unsuccessful, whether either party to the proceedings has made any offer in writing to the other party to settle the proceedings and the terms of any such offer and such other matters as the Court considers relevant.
Ms Wade for the Applicant submits that as he has been wholly successful and the Respondent has been wholly unsuccessful that the Court should make an order for costs in his favour. Mr Hong for the Respondent submits that in effect there was an arguable case and that this is a matter where the parties should pay their own costs, bearing in mind the fact that the wife has already expended a fair amount of money on other legal proceedings.
I have no evidence as to the financial circumstances of the parties other than that and of the fact that the applicant is currently in employment and that there is a maintenance order payable to the respondent. It is not put to me that either party is in receipt of a grant of Legal Aid. There is no suggestion that either party to the proceedings has conducted the proceedings in any way that would call for criticism by the Court. Quite the reverse in fact, the parties seem to have done their best to have got this matter on and argued it in a simple, economic and focused way which does them both credit.
There is no evidence of either party having failed to comply with a previous order of this Court and I accept the fact that the respondent has been unsuccessful. There is no suggestion put to me that there has been an offer of settlement and there are no other matters which I consider to be relevant.
Taking all of the matters into account, I am of the view that the Respondent had an arguable case. As it turns out, it was not a case that was successful, but it was not a clearly inappropriate or hopeless case and in my view I am not satisfied that the circumstances justify an order for costs. The parties are to pay their own costs.
The application will be removed from the list of cases awaiting finalisation, but as I said, I require a transcript of my reasons.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 9 February 2006
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