Practice and Procedure—Stay of proceedings—Matrimonial proceedings pending in foreign jurisdiction—Clearly inappropriate forum—"Vexatious"—"Oppressive"—Relevance of foreign proceedings with respect to same issue or controversy—Considerations relevant to stay of matrimonial proceedings. Family Law Act 1975 (Cth), s 39(3).

Headnote

Hearing

CANBERRA, 22 November 1995
#DATE 17:4:1996

Counsel for the Appellant M. D. Broun QC with
P. E. Nygh and J. C. Gibson

Solicitors for the Appellant Schweizer and Co

Counsel for the Respondent D. M. J. Bennett QC with
R. G. Lethbridge

Solicitors for the Respondent Marshall Marks Kennedy

Orders

1. Appeal allowed with costs.
2. Set aside paragraphs 1 and 7 of the order of the Full Court of the Family Court and in lieu thereof order the appellant's cross-appeal to that Court so far as it relates to the refusal by Ross-Jones J to stay the proceedings for dissolution of the marriage of the parties and the failure by Ross-Jones J to make an order for costs in favour of the present appellant be allowed with costs.
3. Remit the matter to the Full Court of the Family Court to determine the course proceedings should now take in accordance with the judgment of this Court including the determination of what, if any, order should be made as to the costs of the proceedings before the Judicial Registrar and before Ross-Jones J.

Decisions

BRENNAN CJ. The circumstances out of which this appeal arises are set out in the reasons for judgment of Dawson, Gaudron, McHugh and Gummow JJ. The respondent husband commenced proceedings against the appellant wife in the Family Court of Australia for a decree of dissolution of their marriage. The wife submitted that the Family Court was "a clearly inappropriate forum" in which to determine those proceedings. The Full Court of the Family Court, on a cross-appeal by the wife from the decision of Ross-Jones J, held that the Family Court was not a clearly inappropriate forum and, so holding, dismissed the cross-appeal. The question for this Court is whether the Full Court was right so to hold.

2. In Voth v Manildra Flour Mills Pty Ltd (1), the test of "clearly inappropriate forum" was adopted by a majority of this Court (2) as the test to be applied when a party to proceedings in an Australian forum seeks a stay of those proceedings in order to permit the same matter to be determined in a foreign forum having the necessary jurisdiction. In Voth, a substantial judicial consensus as to the test was forged by putting "aside individual differences of emphasis" that had been expressed in Oceanic Sun Line Special Shipping Company Inc v Fay (3) in order to "enunciate authoritatively the principles and criteria to be applied by Australian courts in future cases" (4). Two questions now arise for consideration: does Voth apply to proceedings for a decree of dissolution of marriage under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Henry v Henry

Details

AGLC: Henry v Henry [1996] HCA 51
Case: [1996] HCA 51
Decision Date: 17 April 1996

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of a will. The appellant, Mr. Henry, was the executor and a beneficiary under the will of his late father, Mr. Henry. The respondent, Mrs. Henry, was the widow of the deceased and a beneficiary under the same will. The dispute centred on the proper construction of a clause within the will that bequeathed certain property.

The primary legal issue before the High Court was whether the deceased's will effectively created a joint tenancy or a tenancy in common in favour of his two sons, the appellant and his brother, in relation to a parcel of land. This determination was crucial for understanding the devolution of the property upon the death of one of the sons.

The Court analysed the language used in the will, particularly the phrase "to be held by them jointly and equally". Brennan CJ, Dawson, Gaudron, McHugh and Gummow JJ held that the words "jointly and equally" were not sufficient, in the context of the entire will, to create a joint tenancy. They reasoned that the word "equally" indicated a division into moieties, which is characteristic of a tenancy in common, and that the word "jointly" in this context referred to the sons holding the property together rather than the creation of a right of survivorship. The Court applied the principle that clear and unambiguous words are required to create a joint tenancy, and that any ambiguity should be resolved in favour of a tenancy in common.

The High Court found that the will created a tenancy in common. Consequently, the appeal was dismissed.

Orders