Holcomb & Holcomb
[2022] FedCFamC1F 580
Federal Circuit and Family Court of Australia
(DIVISION 1)
Holcomb & Holcomb [2022] FedCFamC1F 580
File number(s): SYC 1486 of 2021 Judgment of: RIETHMULLER J Date of judgment: 12 August 2022 Catchwords: FAMILY LAW – DIVORCE – Forum non conveniens – Whether Australia a clearly inappropriate forum – Spouses living in Country B – Jurisdiction founded upon husband’s Australian nationality alone – Divorce not available on husband’s application in Country B – Fault based divorce system in Country B – Parties have connections to Australia as the jurisdiction where they married and where their significant asset is located – Divorce granted. Legislation: Family Law Act 1975 (Cth) ss 39, 55A
Civil Code (Country B) Article 770
Cases cited: Arnold v Arnold [1957] P 237
Barriga and Barriga (No 2) (1981) FLC 91-088; [1981] FamCA 75
CC & BC (2007) 208 FLR 58; [2007] FMCAfam 56
Dobson and Van Londen (2005) FLC 93-225; [2005] FamCA 479
Evans and Evans (1990) FLC 92-150; [1990] FamCA 43
Ferrier-Watson v McElrath (2000) FLC 93-022; [2000] FamCA 219
GORG v SG (2006) 197 FLR 21; [2006] FMCAfam 51
Henry v Henry (1996) 185 CLR 571; [1996] HCA 51
Indyka v Indyka [1969] 1 AC 33
Maunder v Maunder (1999) FLC 92-871; [1999] FamCA 1430
Morton John v Morton John & Monkhouse (1961) 2 FLR 273; [1961] SASR 164
Opperman and Opperman (1978) FLC 90-432; [1978] FamCA 7
Pagliotti v Hartner (2009) 41 Fam LR 41; [2009] FamCAFC 18
Shaw v Gould (1869) LR 3 HL 55
Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55
Wilson v Wilson (1872) 2 P & D 435
Division: Division 1 First Instance Number of paragraphs: 62 Date of hearing: 9–10 June 2022 Place: Parramatta Counsel for the Applicant: Mr Scarlett Solicitor for the Applicant: Boyce Family Law & Mediation Counsel for the Respondent: Ms Ito Solicitor for the Respondent: JA Law Solutions Table of Corrections 20 October 2022 In paragraph 13, the sentence “Whilst [Professor E] was careful to avoid describing the [Country B] system by reference to the dichotomy of ‘fault based’ or ‘no fault’, it appears to me that the [Country B] system is, in substance, a fault based system” has been inserted. In paragraph 25, the words “in substance” has been inserted in the first sentence, the words “and that it is generally applied in the context of the fault based system,” has been removed, and the words “considered to be ‘at fault’” has been replaced with “cannot satisfy Article 770 of the [Country B] Civil Code and”. In paragraph 27, the word “[Professor E]’s” has been replaced with “[Professor E]’s”, the comma after the words “in the circumstances of this case” has been replaced with a full stop, the words “as a” has been replaced with “Also an effectively”, and the word “also” has been replaced with the word “likely”. In paragraph 49, the words “to argue” has been inserted between the words “evidence” and “that”. ORDERS
SYC 1486 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HOLCOMB
Applicant
AND: MR HOLCOMB
Respondent
order made by:
RIETHMULLER J
DATE OF ORDER:
12 august 2022
THE COURT ORDERS THAT:
1.A divorce order be made.
AND THE COURT NOTES THAT:
A.Pursuant to s 55 of the Family Law Act 1975 (Cth) the divorce order takes effect at the expiration of one month from today.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Holcomb & Holcomb has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) on 20 October 2022.
RIETHMULLER J:
Introduction
The applicant husband applies for an order pursuant to the divorce provisions of the Family Law Act 1975 (Cth). The respondent wife opposes any divorce order, primarily on the basis that Australia is a “clearly inappropriate forum”.
BACKGROUND
The husband is an Australian citizen who has permanent residency rights in Country B. The wife is a Country B citizen who has permanent residency rights in Australia.
The husband and wife met in Country B in around 1993 or 1994. They commenced cohabitating in City C, Country B in around 1994 or 1995, before moving to Sydney, Australia in 1997. The parties then married in Sydney in 2001. The parties returned to City C shortly thereafter.
After the parties had relocated to City C in 2001, they had two children together who are now 19 and 17 years of age.
Since having the children in 2003 and 2005, the parties lived together for some time in City C. In early 2013, the wife and two children returned to Sydney, Australia. The wife and children remained living in Sydney for around five and a half years. During this period, the husband remained living in Country B for work. The parties all travelled back and forth to see each other from time to time, although the husband primarily travelled to and from City C to visit the wife and children in Sydney due to the children’s attendance at school.
The wife and children returned to live in Country B in around August 2018. The parties have remained living in Country B since that time.
The parties separated in Country B on 4 August 2019, and both continue to live in Country B. At least prior to separation, it appears that there were some intentions by the parties to return to Australia when the children attended university, to enable them to attend Australian universities, and to live in the property that they own in Suburb D, a suburb of Sydney (“the Suburb D property”).
Both of the parties' children are presently dual citizens, although it appears that upon attaining majority (which is 20 years of age under Country B law) they will be required to elect as to whether or not to retain their Country B citizenship or their Australian citizenship and renounce their other citizenship, as Country B law does not permit citizens to have dual nationality, unlike Australian law.
The only major asset of the parties is the Suburb D property that is held by them in joint names and worth over AUD$2 million (on the husband's estimate), although subject to a mortgage of around $660,000. The wife did not place evidence before the Court as to her estimate of the value of the Suburb D property. It would be entirely unexceptional that a property in Suburb D would be worth more than AUD$2 million.
The parties do not appear to own any real estate in Country B. The husband has a business in Country B and the parties hold other modest assets. There is no question that the overwhelmingly significant asset of the parties is the home in Suburb D, Sydney.
In May of 2020, after the parties had separated for some time, the husband sought a divorce in Country B. The wife did not agree to a divorce, and after a number of mediation or conciliation events, the husband abandoned the claim. The husband filed for a divorce in Australia in March 2021, which are the proceedings that have come before the Court for determination. The wife had also brought proceedings in Country B as part of the mediation process available in the Country B courts with respect to matrimonial issues. It appears that the parties have participated in 11 various sessions with mediators or referees in Country B (processes that, on the evidence of the expert witness, Professor E, appear to be in the style of mediation or conciliation conferences). No settlement has been reached between the parties with respect to any of the matrimonial issues.
At present, the children continue to live with the wife. The children have little if any contact with the husband. The husband continues to make financial provision for the wife. Neither the wife nor the husband has commenced proceedings in Country B for court orders rather than mediations or conciliations. In this regard, the procedural laws regarding matrimonial matters differ in Country B from those in Australia.
The parties provided expert evidence from Professor E of G University of Country B. Professor E gave clear and detailed evidence with respect to the law in Country B concerning matrimonial matters. I have no hesitation in accepting the evidence Professor E gave and relying upon it as both accurate and insightful. Whilst Professor E was careful to avoid describing the Country B system by reference to the dichotomy of “fault based” or “no fault”, it appears to me that the Country B system is, in substance, a fault based system.
Professor E explained that the divorce processes for matrimonial causes in Country B have four possible types, as follows:
There are four types of divorce in [Country B]: they are (1) divorce by mutual agreement, (2) divorce by mediation (3) divorce by referee, and (4) divorce by trial. The divorce processes (2) to (4) are carried out under the auspices of the court, but (1) divorce by mutual agreement is effected by negotiations between the couple without the intervention of a court, by notifying their divorce agreement to the [Country B] family registry office. The validity of all divorce processes (1)-(4) is recognised under [Country B] law. Divorce by mutual agreement is the most common means for dissolution of marriage in [Country B], accounting for approximately 90% of divorce cases. This path to divorce with no intervention from the court can be said to be one of the unique characteristics of [Country B]'s divorce system when compared to divorce in Australia which is granted only by the power of a court.
([Professor E]’s Report dated 9 August 2021)
The parties were each cross-examined before me on this application. It was very clear that the wife is emotionally devastated by the separation and has difficulties focusing upon the issues that must be confronted as the parties separate their lives. For example, the wife says that the husband has chosen not to see the children, whereas the husband says that he has been frustrated from doing so by the wife. When the husband made this comment before the luncheon adjournment, I indicated to the wife's lawyers that the wife could put forward a written proposal around the husband seeing the children, in a format that would be able to be provided to the Country B courts for the purpose of obtaining consent orders in Country B, in order to determine whether the husband was genuine in his comments and would agree to a proposal. After the luncheon adjournment, the wife did not attend with any specific proposal, was unable to provide a specific proposal in her oral evidence, and simply said that she was awaiting a report from a referee after one of the Country B mediation sessions and did not seem to be aware of the terms that she thought the referee would set out in the report.
The wife gave evidence that she had been told at some point that her financial provision would be less if she obtained court orders in Country B than continuing with the current informal situation. It appears that this, coupled with her distress about divorcing, has led to a situation where she is either withholding a divorce as a bargaining chip to sustain the current financial provision, or that she is simply opposed to divorce but does not wish to state such a position plainly, and thus constantly claims that she will agree to a divorce at some point in the future and wishes to continue to engage in negotiation processes.
Whilst the wife claims that the husband's conduct in seeking a divorce order in Australia is oppressive and manipulative, it seems more likely on the evidence before the Court that her conduct in the proceedings in Country B has been designed to avoid any conclusion of the matrimonial dispute in Country B. However, this must be seen in the context of the limited rights to obtain a divorce in Country B, as discussed below.
There is no dispute that the parties have been separated for over 12 months and that they otherwise satisfy the requirements for a divorce under the Family Law Act 1975 (Cth) in Australia, save for an argument by the wife’s counsel with respect to the operation of section 55A of the Act, which requires:
55A Divorce order where children
(1) A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:
…
(b)that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:
(i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
(ii) there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.
The effect of s 55A of the Act is not to require that parenting issues have been finalised between the parties, only that adequate provision has been made for the children. The cases on this provision have largely focused upon whether the spouse petitioning for divorce has made financial provision for the children or is within the reach of the jurisdiction: see, for example, Opperman and Opperman (1978) FLC 90-432; Evans and Evans (1990) FLC 92-150; Maunderv Maunder (1999) FLC 92-871.
It is not suggested in this case that the care the wife provides for the children is inadequate, nor that there is insufficient financial support from the husband. There is a dispute about whether or not the husband should see the children more regularly, as discussed above. The parties and the children are residing in Country B and are subject to parenting orders by the Country B’s courts if unable to resolve their contact (visitation) disputes.
As identified above, the conduct of the wife in the proceedings leads me to conclude that the adequacy of arrangements for the children is not a real issue. I am satisfied that proper arrangements for the children have been made, sufficient for the purpose of s 55A of the Act. Even if I am wrong in this regard, a person relying upon their own conduct in frustrating parenting arrangements as appears to be occurring in this case, falls within the exception in s 55A(1)(b)(ii) of the Act, at the very least on the basis that the arrangements are the best available to the party seeking the divorce: see Morton John v Morton John & Monkhouse (1961) 2 FLR 273, as cited in Opperman and Opperman (1978) FLC 90-432.
I am satisfied that the husband has established the facts necessary to obtain a divorce order, and that such an order should be granted unless the proceedings are stayed on the basis that Australia is not a clearly inappropriate forum for this matter.
I turn next to consider briefly the expert evidence given with respect to matrimonial proceedings in Country B under Country B’s law. Professor E explained that in Country B most divorces are settled by mediation or a process akin to what I would describe as conciliation, but that a trial leading to court orders is available.
Divorces in Country B are available under Article 770 of the Country B’s Civil Code which provides as follows:
The Civil Code – Article 770
(1)Only in the cases stated in the following items may either husband or wife file a suit for divorce:
1) if a spouse has committed an act of unchastity/ adultery;
2) if there has been abandonment by a spouse in bad faith;
3)if it has been unclear for not less than 3 years whether a spouse is dead or alive;
4)if a spouse is suffering from severe mental illness and there is no prospect of recovery; or
5)if there is any other grave cause making it difficult to continue the marriage.
The Country B’s system for matrimonial causes is in substance a fault-based divorce system, not dissimilar to the system which was in force in Australia until the middle of the twentieth century. Whilst Article 770(1)(5) of the Country B’s Civil Code speaks of another “grave cause”, Professor E explained that this is most commonly accessed in cases of violence, and thus is not utilised as a provision allowing for no-fault divorce of the type available in Australia. Professor E also explained that if a party cannot satisfy Article 770 of the Country B’s Civil Code and seeks a divorce in Country B, they would have to satisfy three factors: that there had been a long-term separation, that there were no minor children, and that the other party would not fall into severe financial circumstances. Even if those three factors are formally satisfied, it remains a matter for the discretion of the judge determining the matter. Importantly, Professor E explained that if neither party is at fault and can therefore not satisfy Article 770 of the Country B’s Civil Code, and that there is no agreement between the parties for a divorce, then divorce is not available under Country B’s law. This highlights the very significant legal and cultural differences with respect to matrimonial matters between Country B and Australia.
The husband does not allege that the wife is at fault. He was clear in explaining that the relationship had not worked out, and therefore he sought to separate, but did not allege fault on the part of the wife. The wife has not brought any proceedings in Country B alleging fault on behalf of the husband, despite the lengthy period of separation. It appears to me that on the material before the Court, that the parties will not be able to obtain a divorce in Country B, and that certainly the husband could not obtain a divorce in Country B on his own application.
The rules of private international law that must be applied by the Country B’s courts, result in the Country B’s courts having jurisdiction over the parties with respect to matrimonial issues when the parties are domiciled in Country B. The result of these legal rules is that the Country B’s courts will not be able to recognise a divorce decree made in Australia in the circumstances of this case, as the parties are presently domiciled in Country B. The result of a divorce order would be that the personal status of the parties in Country B would be that of a married couple, and in Australia, that of a divorced couple. I accept Professor E’s evidence that it would be very difficult for the Country B’s courts to recognise a divorce order made in Australia as legally valid in the circumstances of this case. Also an effectively “no fault” divorce would likely be contrary to public policy in Country B due to the terms of Article 770 of the Country B’s Civil Code.
It is open to the wife to bring property proceedings in Country B should she choose to do so. At present, it appears that she is choosing not to bring court proceedings in Country B, as she is unlikely to receive as much as she is receiving voluntarily from the husband in the intervening period. It is not argued by either counsel that there would be any impediment to the registration of Country B’s court orders with respect to the real property in Sydney for enforcement in the Federal Circuit and Family Court of Australia if the Country B’s courts made orders dealing with the matrimonial property of the parties.
There is a prima facie right on the part of the husband to a divorce under Australian laws, given that he is an Australian citizen and the provisions of the Family Law Act 1975 (Cth) provide for divorce to be available to any person who is an Australian citizen: s 39(3)(a) of the Family Law Act 1975 (Cth). The circumstances of this case meet the other requirements for a divorce under Australian law.
As the husband has a prima facie right to relief (Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538), the question then becomes whether or not the Court should refuse to exercise jurisdiction in this case. The test for determining whether the Court should refuse to exercise jurisdiction is set out in Henry v Henry (1996) 185 CLR 571, which requires consideration of whether or not Australia is a "clearly inappropriate forum". I note here that the test I must apply under Australian law is quite different from the test that the Country B’s courts would have to apply under Country B’s law if proceedings were brought in Country B. The different laws that must be applied by Country B’s judges to those that must be applied by Australian judges in this respect are not able to be altered or adjusted by the judges of the respective Courts.
In Henry v Henry, the High Court (at [25]) confirmed its rejection of the forum non conveniens principle as set out in Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460, and re-stated the appropriate test to be applied in Australia as:
25. … that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if 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"
The High Court went on to identify consideration that will commonly be relevant when exercising the discretion:
39. Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done (50). As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy.
40. Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.
It is appropriate to turn to these considerations and the other matters argued by counsel for the parties.
(a) Whether Australia and Country B will recognise the other’s orders?
Counsel for the wife noted that whilst both countries’ Courts have jurisdiction, a divorce order in Australia would not be recognised in Country B. In a similar case, GORG v SG (2006) 197 FLR 21 an Australian court made a divorce order with respect to spouses domiciled in Country B, however this order was not recognised in Country B: see City C Family Court decision on 11 September 2007 (Monthly Report on the Family Court Cases (Kasai Geppo 60-1-108)), and Professor E’s Report dated 9 August 2021, paragraph 22. I accept that any Australian divorce order will not be recognised in Country B.
A significant consequence of this is that as the divorce will not be recognised in Country B, any divorce order in Australia will result in the parties having different personal statuses in each of the two countries: a “limping marriage” as it was colourfully described in Indyka v Indyka [1969] 1 AC 33. However, this must be seen in the context of a case where the husband is unable to obtain a divorce in Country B. If the husband obtains a divorce in Australia he will be free to remarry in Australia and other parts of the world that recognise Australian divorce orders, but will not be free to remarry in Country B. Should the wife wish to have the advantage of being able to remarry, there does not appear to be any real difficulty for her to obtain a divorce order as a divorce order could be obtained by consent in Country B (and there is no doubt that the husband would consent to such an order).
Counsel for the wife said that if a divorce order is filed in the municipal offices, the wife would need to challenge it. However, this particular proposition was not addressed in Professor E’s report. Whether a divorce order from Australia would be immediately rejected when lodged for registration in Country B or would be accepted and the wife required to apply to the court for an order is unclear on the evidence.
(b) Which forum can provide more effectively for complete resolution of the matters in controversy?
Counsel for the wife argued that the controversy must be seen as the entire matrimonial dispute and not simply the divorce application in isolation from the property and parenting issues. Counsel argued that it would be inappropriate for the Australian Courts to make parenting orders given that the children reside in Country B at present, as do the parents. No application for parenting orders has been brought before this Court and therefore it is not necessary for me to rule on that question. However, I accept counsel's submission that it is likely that an Australian court is a clearly inappropriate forum for any parenting dispute where both parents and the children are domiciled in Country B. Counsel developed her argument on the basis that the Country B’s courts are able to provide a complete resolution of the matrimonial issues. The difficulty with this proposition is that it does not appear that the husband can obtain a divorce in Country B.
It does appear clear that the Country B’s courts, if asked, would be able to provide a complete resolution to the property and children's issues. Whilst each of the issues may be considered one part of a single matrimonial cause under Country B’s law, they are now independent causes under Australian law. That is, parenting and property orders are no longer matters that must be dealt with in the divorce proceedings under Australian law. However, the High Court, in Henry v Henry (at [38]), considered that all of the disputes arising out of the matrimonial relationship should be seen as part of the one controversy, at least when brought during the subsistence of the marriage: see also Ferrier-Watson v McElrath (2000) FLC 93-022 at 87,370 and Dobson and Van Londen (2005) FLC 93-225, although this is not a strict rule, for example, see Pagliotti v Hartner (2009) 41 Fam LR 41 at [126].
(c) The order in which the proceedings were commenced and the stage at which proceedings have reached
Counsel for the wife argued that the Country B’s mediation proceedings had commenced prior to the Australian court proceedings. This is clear on the evidence. However, the Country B’s proceedings have not gone beyond mediation processes. A convenient summary of the proceedings can be taken from the letters of instruction to Professor E dated 26 July 2021 and the wife’s Case Outline filed 2 June 2022:
(a)On 4 March 2021, the husband filed an application to commence divorce proceedings at the Federal Circuit Court of Australia.
(b)On 11 March 2021, the husband filed an application to commence divorce proceedings at the City C Family Court by filing an Adjustment Mediation of Marital Relationship (Divorce).
(c)On 19 April 2021, the parties attended the City C Family Court for the first day of the Divorce by Mediation process.
(d)On 3 May 2021, the divorce hearing in Sydney was adjourned as the 42 days permitted for the wife to submit her Response to the husband’s Application for Divorce had not yet elapsed.
(e)On 21 May 2021, the second Divorce by Mediation conference was held at the City C Family Court.
(f)On 2 June 2021, the wife applied to commence proceedings at the City C Family Court for amicable resolution of the marital relationship by filing an Adjustment Mediation of Marital Relationship (Reconciliation).
(g)On 7 June 2021, the wife filed a Response in the Federal Circuit Court of Australia contesting the husband’s divorce application in Australia.
(h)On 18 June 2021, the third Divorce by Mediation conference was held at the City C Family Court.
(i)On 6 July 2021, the divorce hearing in Sydney was adjourned and listed for a defended divorce hearing on 29 September 2021.
(j)On 13 July 2021, the husband sent a formal request to the Registrar of the City C Family Court urging it to declare a failure of ongoing Divorce by Mediation of the parties, and expressed his wish to focus on impending divorce proceedings in Australia, or to move forward to the next phase of divorce proceedings in Country B, a Divorce by Trial.
(k)On 27 July 2021, the wife filed at the City C Family Court to initiate a process of Mediation for Visitation and Time Spent with Child, and a process of Mediation for Sharing the Cost of Maintenance.
(l)On 28 July 2021, the fourth Divorce by Mediation conference at the City C Family Court in Country B.
(m)On 6 September 2021, the fifth Divorce by Mediation conference, as well as the first Mediation to discuss issues of the children's welfare and maintenance, were held at the City C Family Court.
(n)On 7 September 2021, the husband withdrew his application for Divorce by Mediation at the City C Family Court.
(o)On 20 September 2021, the divorce hearing that was scheduled at the Federal Circuit and Family Court of Australia for 29 September 2021 was vacated and transferred to Division 1 of the Court.
(p)On 13 October 2021, a Mediation to discuss the children's welfare and maintenance was held at the City C Family Court.
(q)On 15 November 2021, the second Mediation to discuss the children's welfare and maintenance was held at the City C Family Court.
(r)On 7 December 2021, a Compliance and Readiness Hearing was held before Chief Justice Alstergren at the Federal Circuit and Family Court of Australia Division 1.
(s)On 13 December 2021, the third Mediation to discuss the children's welfare and maintenance was held at the City C Family Court.
(t)On 4 February 2022, the fourth Mediation to discuss the children's welfare and maintenance was held at the City C Family Court.
(u)On 20 April 2022, the fifth Mediation to discuss the children's welfare and maintenance is to be held at the City C Family Court.
(v)On 6 June 2022, the sixth Mediation to discuss the children's welfare and maintenance conference is scheduled at the City C Family Court in Country B.
The Australian divorce proceedings have been pending for over a year and the wife has not sought to bring a divorce application in Country B, nor has the wife applied to the courts in Country B for orders to restrain the husband from bringing proceedings overseas on the basis that the Country B’s courts were seized of jurisdiction. Presumably the wife would have to commence divorce proceedings by way of an application for a judicial determination in Country B in order to obtain such ancillary orders.
Counsel argues that parallel proceedings would be vexatious. Here, however, there are not presently parallel proceedings for divorce and the wife has not brought divorce proceedings in Country B. Had the wife been seeking a divorce in the Country B’s courts this would have been a significant factor.
(d) The connexion of the parties and their marriage to each jurisdiction
Counsel for the wife argues that the parties have a very strong connection with Country B. They are domiciled in Country B, as are their children. They have lived and made their lives in Country B for some years. They last cohabited in Country B. However, they have also spent much time in Australia, and Australia is where they own their only real property (the Suburb D property). There was also evidence of plans (at least at one time) for the children to attend university in Australia and the family to live in the Suburb D property during that time. Thus, whilst the parties are domiciled in Country B, they also have real connections to Australia.
Counsel for the father quite properly conceded that the parties are living in Country B and generally relied upon matters already discussed above. Counsel also pointed to the fact that the only significant asset of the parties is in Australia, which may be a basis for the Country B’s courts to conclude that property proceedings are more appropriately brought in Australia rather than Country B. This argument was not put on the basis that property proceedings should necessarily be brought in Australia, but to point out that the parties do have significant connections to the Australian jurisdiction as a result of having lived here at various times, owning significant property here, and the evidence of the wife that there were at least in the past plans for the children to attend university here (including that she may have wished to reside in the Suburb D property during that time). From a more technical perspective, the marriage from which the husband seeks a dissolution was solemnised in Australia and under Australian law.
Thus, whilst the parties appear to be domiciled in Country B, the marriage has a clear connection to Australia, as do significant incidents of their life as spouses and their assets. This aspect of the case is clearly different to the facts in Henry v Henry, where the parties married in Germany and had spent no part of their married life in Australia. In this sense, it is not a case where the husband has simply sought a jurisdiction where divorce is available to him.
Utilising the courts of Country B would provide some degree of convenience for the parties as that is where they live. However, a divorce does not appear to effectively be available to the husband under Country B’s law, again distinguishing the facts of this case from that of Henry v Henry where a divorce was available in Monaco where the wife had divorce proceedings pending.
In the case of Barriga and Barriga (No 2) (1981) FLC 91-088 at 76,606, Baker J when refusing to recognise a divorce obtained in Chihuahua in the Republic of Mexico (resorted to by the husband for the sole purpose of obtaining a divorce which the husband could not achieve in his own country), said:
In the case of Indyka v Indyka [1969] 1 AC 33 the court held that a foreign divorce was recognized in England provided there existed a real and substantive connection between the petitioner and the country where the divorce was obtained. The court in effect said that the dissolution must be genuine and in addition it must be shown that the petitioner did not resort to the jurisdiction for the purpose of the proceedings particularly if a ground were not available in the country of his domicile or residence.
I do not read Barriga (No 2) as authority for the proposition that simply because a person is unable to obtain a divorce in their jurisdiction of domicile, that resort to their country of nationality is not genuine. To do so would be to undermine the intention of Parliament that divorces be available to Australian citizens generally.
Thus, for example, in CC & BC (2007) 208 FLR 58 Sexton FM (as her Honour then was) granted a divorce where the parties were both living in Switzerland and the husband faced the prospect of moving to Africa or South America with his employment. Importantly, both parties were Australian citizens and had ongoing connections to Australia, including owning property here.
(e) The issues upon which relief may depend
This factor goes to the most significant area of dispute between the parties. Put simply, the husband seeks a divorce and the wife opposes a divorce, even if that means that the parties live separately and apart (akin to ancient ecclesiastical courts’ decrees of divorce a mensa et thoro, when divorce in the modern sense was not available).
Counsel for the husband pointed to Professor E’s evidence to argue that one cannot force someone who is not at fault to divorce if they do not wish to have a divorce. On this issue, the husband relies heavily upon the juridical advantage that he obtains by petitioning for divorce in Australia. This leads to the question of whether reliance upon such juridical advantage is legitimate: see Henry v Henry (1996) 185 CLR 571 at [25].
In divorce cases there is often much weight placed upon the domicile of the spouses as a factor to be considered either when determining a forum or recognising a foreign divorce order. On the evidence before me, Country B’s law relies almost exclusively upon domicile. Thus, the arguments by the wife that the husband’s resort to Australian proceedings should not be seen as legitimate.
The common law arguments in favour of relying heavily upon domicile appear to have taken great force from Lord Westbury’s opinion in Shaw v Gould (1869) LR 3 HL 55 that “questions of personal status depend on the law of domicile”, re-stated in a persuasive form by Lord Penzance in Wilson v Wilson (1872) 2 P & D 435 at 442 where his Lordship said:
Different communities have different views and laws respecting matrimonial obligations, and a different estimate of the causes which should justify divorce. It is both just and reasonable, therefore, that the differences of married people should be adjusted in accordance with the laws of the community to which they belong, and dealt with by the tribunals which alone can administer those laws. An honest adherence to this principle, moreover, will preclude the scandal which arises when a man and woman are held to be man and wife in one country, and strangers in another.
However, as Lord Reid said in Indyka v Indyka [1969] 1 AC 33 at 64, “the position appears to be … that most European countries attach more importance to nationality”. His Lordship went on to remark, of the judges in previous cases, that “it is just possible that they were actuated by the hope, common in Victorian times, that if England showed the way, others would see the light and follow: if so, any such hope has been grievously disappointed”.
Domicile, whilst at first an attractive basis upon which to found a choice of jurisdiction, is not the only rational option, nor as practical as it first appears. The issue was discussed at length in Indyka. In the ecclesiastical courts’, jurisdiction had “depended on residence or on the place of celebration of the marriage” rather than domicile (at 60). Lord Pearce was of the view that decrees of divorce when jurisdiction is taken on the basis of nationality should be recognised (at 90). Lord Wilberforce noted that nationality is one of the commonly accepted “connecting factors” in many states (at 97). Lord Pearson agreed with Lord Pearce, saying that the limit upon recognition of foreign divorces by the common law was that the foreign court “must be not ‘simply purveying divorce to foreigners who wish to buy it’” (at 111–112).
The impractical nature of domicile as a determinant of jurisdiction was apparent in the aftermath of the world wars due to the large number of people displaced from their countries of origin. Since then the diaspora of many countries have increased not reduced, not as a result of war, but freedom of movement and trade. Three significant basis for considering choice of jurisdiction emerge: the place of marriage (the jurisdiction that established the change of status from single to married), the domicile or place of habitual residence (the jurisdiction in which spouses choose to live their lives), and nationality (the jurisdiction in which a person’s citizenship rights provide for their legal rights and protections).
In Australia, the government has legislated to provide for divorce to be available to Australian citizens by making it a basis for jurisdiction of this court, even if the citizen is in another country. As a result it cannot be said that merely relying upon citizenship when domiciled in a foreign jurisdiction is prima facie an illegitimate resort to the Australian jurisdiction. The resort to a foreign jurisdiction will be illegitimate if the foreign jurisdiction is “simply purveying divorce to foreigners who wish to buy it” (Indyka at 88), or the foreign court is being used “for the convenience of birds of passage” (Arnold v Arnold [1957] P 237 at 253), or as Lord Pearson pointed out in Indyka (at 112):
Similarly a nationality might be acquired temporarily for the purpose of obtaining a divorce. Also nationality might perhaps in some circumstances be regarded as insufficient to found jurisdiction, if there was no longer any real and substantial connection between the petitioner and the country of his or her nationality.
I am not persuaded that the facts of this case indicate that the husband’s resort to the jurisdiction of his nationality is illegitimate. However, it is important to take into account the overall circumstances of the husband’s resort to the Australian jurisdiction.
(f) The ability of the parties to participate in the proceedings
Counsel for the wife argues that in divorce proceedings in Country B the parties would be able to participate on an equal footing, unlike in Australia. Whilst the parties may not have been able to participate on an equal footing in a long and complex trial in Australia, given that the wife is in Country B and speaks little English, a divorce proceeding under the Family Law Act 1975 (Cth) is a very straightforward proceeding as there are few facts to be proved in a no fault divorce law system.
Notably, the divorce hearing in this case has been heard by video link and with an interpreter, enabling equal participation of the husband, wife, and each of their lawyers. None of the participants in this hearing appeared in person before the Court for the trial, all connecting by video link. I am not persuaded that the parties have not been able to participate on an equal footing in the proceedings in this case.
Other considerations
Finally, counsel for the wife argues that the husband has engaged in controlling behaviour in bringing divorce proceedings in Australia. As indicated above, it appears to me that it is more arguable that the wife has engaged in controlling behaviours in withholding her consent to any form of divorce in Country B, and thereby attempting to bind the husband to her despite his desire to leave the relationship.
Conclusion
Considering the matter as a whole, the case presents a difficult question. However, I am ultimately persuaded that it cannot be said that Australia is a clearly inappropriate jurisdiction in this case, nor that the current proceedings are vexatious or oppressive in the relevant sense. I am therefore persuaded to exercise jurisdiction.
There is no dispute that the husband has satisfied the formal requirements for a divorce under Australian law (proof of marriage and proof of separation for more than 12 months). To the extent that there is an argument about the applicability of s 55A of the Act, I am persuaded that adequate arrangements have been made for the children, at least sufficient to satisfy that section.
I therefore make a divorce order in this case.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 12 August 2022
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