Hugh and Skinner

[2012] FamCA 145

FAMILY COURT OF AUSTRALIA

HUGH & SKINNER [2012] FamCA 145

FAMILY LAW - JURISDICTIONS

Family Law Act 1975 (Cth) s 39(4),

Voth & Manildra Flour Mills (1990) 171 CLR 538
Henry & Henry [1996] FLC 92 685
Ocean Sun Line Special Shipping Company & Fay (1988) 165 CLR 197 at 247

APPLICANT: Ms Hugh

RESPONDENT: Mr Skinner

FILE NUMBER: SYC 937 Of 2011

DATE DELIVERED: 8 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 8 March 2012

REPRESENTATION

APPLICANT: In person by telephone link from Singapore

COUNSEL FOR THE RESPONDENT: Ms Boyle

SOLICITOR FOR THE RESPONDENT: Blanchfield Nicholls Partners

Orders

1. That the Initiating Application of the Husband Mr Skinner filed

   
   

   17 February 2011 in the Family Court of Australia is permanently stayed.

THE COURT NOTES:

1. That Annexure’A’ to these Orders is a relevant Order made on 3 February 2012 by a Registrar of the Family Court of Australia.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hugh & Skinner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 937 of 2011

Ms Hugh

Applicant

And

Mr Skinner

Respondent

REASONS FOR JUDGMENT

1. This is an Application in a Case filed by the wife on 14 November 2011.  The application is supported by three affidavits, two by the wife herself filed 14 November 2011 and 23 February 2012 and one by an advocate solicitor of the Republic of Singapore, Ms Malathi Das.  The relevant order sought is as follows: 

   (a)That the Initiating Application for property settlement proceedings filed by the applicant on 17 February 2011 be permanently stayed on the basis of forum non-conveniens.

   (b)That the concurrent proceedings for divorce and ancillary matters (property settlement, spousal maintenance, child support and proposed parenting plan) on foot in Singapore are more materially complete and that the Singapore jurisdiction is the more convenient and appropriate forum for the hearings in totality notwithstanding that the divorce order has been issued in Australia on … September 2011.

2. The wife seeks a stay, in effect, of the application of her former husband, Mr Skinner, who is the respondent in this matter.  That application was filed in this Court on 17 February 2011. 

3. The husband opposes the granting of a stay.  He relies on the following affidavits:

   (a)affidavits of himself filed 13 December 2011 and  22 February 2012;

   (b)affidavit of Ms Das filed in the wife’s case. The primary application of the husband could be heard and determined in this Court. Jurisdiction is conferred by s 39(4) of the Family Law Act.

Short history

1. The wife was born in Singapore.  She is 40 years of age. 

2. The husband was born in Australia.  He is 50 years of age. 

3. The parties met in 1996 and later married in Singapore in May 1999.  They separated in November 2008. 

4. They have two children aged 10 (T) and eight (N). 

5. The wife lives with the children in Singapore. 

6. The husband now lives in Australia and regularly travels to Singapore. 

7. Other than for about 15 months in Sydney and a year in Hong Kong, the parties have lived in Singapore during their entire relationship. 

8. The wife is a citizen of Singapore.  She obtained provisional Australia permanent residence in the year 2000, which expired in 2005.  She has no present intention to pursue residence in Australia. 

9. The husband is an Australian citizen and has permanent residence in Singapore. 

10. T was born in Sydney, N in Singapore.   Both children have dual Australian, Singaporean citizenship.

The applications

1. On 17 February 2011, the husband filed two applications, one in this Court for property orders, the other an application for divorce filed in the Federal Magistrates Court of Australia. 

2. On 23 February 2011, the wife filed in Singapore a writ for divorce, inclusive of claims for relief for the marriage to be dissolved, custody and/or care and control of the children, division of the matrimonial home, division of the matrimonial assets aside from the matrimonial home, maintenance for the wife, maintenance for the children, costs and other orders. 

3. Approximately one week later, she was served with the husband’s documents.  On the next day the wife’s documents were served on the husband.

The divorce application

1. The application of the husband for divorce was initially opposed by the wife.  There were a series of Court events which culminated in the divorce becoming final on … September 2011.  These events are helpfully summarised in orders made by Registrar Campbell of this Court on 3 February 2012, which orders are annexure ‘A’ to the orders I make in these proceedings. 

2. There is some significance to the parties being divorced in Australia, which I will come to later in these Reasons.  In Singapore a divorce application is necessary for ancillary matters to be dealt with. 

3. The wife has filed for a stay of the Australian property proceedings.  The husband has filed for a stay of the Singaporean divorce and ancillary matters proceedings.

The law

1. If the Family Court has jurisdiction, the only legitimate ground for declining to exercise it is that the Family Court in Australia is a clearly inappropriate forum.  The test of “clearly inappropriate forum” was established in the High Court decision of Voth & Manildra Flour Mills (1990) 171 CLR 538 as the test to be applied when a party to proceedings in an Australia 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.

2. The High Court decision in Henry & Henry [1996] FLC 92 685 established that the Voth decision applied to proceedings for a decree of dissolution of marriage.  By extension, it applies to the matrimonial cause of division of property.

3. The issue of whether this Court is a clearly inappropriate forum is determined by a discretionary consideration of relevant matters.  The applicant must show reasons which the Court accepts for staying the exercise of jurisdiction.  It is not a matter of preferring one forum or another.  The attention of this Court must be directed to the inappropriateness of this Court.  There are certain matters to be considered:

   a)     Would the continuation of the Australian proceedings be oppressive or vexatious for the application?  That is to say, “oppressive” meaning seriously and unfairly burdensome, prejudicial or damaging, and “vexatious” meaning productive of serious and unjustified trouble and harassment.  Those are the extended meanings drawn from the High Court decision in Ocean Sun Line Special Shipping Company & Fay (1988) 165 CLR 197 at 247.

   b)     The applicant should establish that a foreign tribunal has jurisdiction.  That is an issue squarely raised in this case. 

   c)     Connection of the parties to the jurisdiction is significant.

   d)     The substantive law of the forum is a very significant factor in the exercise of this Court’s discretion, but the Court is enjoined not to focus upon that factor to the exclusion of all others.

1. Would continuation of the proceedings in Australia be oppressive and vexatious?

1. The wife submits that the Australian jurisdiction is comparatively expensive; that she has paid $46,000 to date, although matters have not yet progressed very far. 

2. The mother now represents herself.  She is ineligible for legal aid in Australia.  She is effectively a single mother, caring for the parties’ two children.  Their father pays child support for them. 

3. I have no reason not to accept the evidence of the husband in his second affidavit of his current assessment of the child support that he pays for the children.  The proceedings commenced by the wife canvas the issue of child maintenance and it is apparent that there is a dispute between the parties over whether child support is sufficient and up to date.

4. The wife further submits it would be difficult and expensive for her to travel to Australia for a hearing, despite the possibility of discounted travel contingent on the husband’s employment and willingness to assist.  The wife also submits there would be a need either to bring the children to Australia or to make arrangements for their care during her absence from Singapore.  There was no sworn evidence of the wife’s current employment, other than a reference in her affidavit to having a managerial role.  Effectively, from the bar table (although actually appearing by telephone), the wife said she had started this job late in 2011 and that as a result, it would be difficult, as a new employee, to take leave in the first 12 months.

5. It is apparent from the child support assessment annexed to the husband’s affidavit that income of $41,187 for the wife was taken into account in that most recent assessment. 

6. I accept the wife’s statement that she knew she would be welcome in the home of her husband’s parents in Sydney if she was obliged to travel to Australia for Australian proceedings and that she was grateful for that, but that she would be uncomfortable staying with her former in-laws, given that her former husband also lives there. 

7. There is undisputed evidence that the wife sought a personal protection order in Singapore, and there are some allegations of domestic misconduct by the husband.  I accept that it would be at least awkward for the wife to be a guest in her former in-laws’ home in those circumstances.  Hotel accommodation would be possible, although obviously more costly.  There would be difficulties of understanding, as a self-represented person in Australia. 

8. The wife raised the difficulties of valuation of the Singapore property, the matrimonial home, being leasehold with 40 years remaining and purchased through C Fund, which is apparently a form of superannuation.  There are local rules and restrictions about which evidence would be required.

1. What are the connections of the parties to the jurisdiction?

1. The wife was born in Singapore, the husband in Australia.  They met and married in Singapore.  Apart from the 15 months when the parties lived in Australia and their elder child was born here, they have lived in Singapore throughout the years of their marriage, again, with the exception of a further year away in Hong Kong.  Their younger daughter was born in Singapore. 

2. The husband is an Australian citizen with permanent residence in Singapore, where he has worked on and off over the past 20 years.  He is now based in Sydney for work. 

3. The matrimonial assets of the parties are substantially in Singapore, including the matrimonial home and the wife’s interest in membership of a local country club.  Those assets are in the sole name of the wife.

4. Post-separation, in about June 2009, the husband bought a block of land in Sydney, which is presently vacant.  That land is in his name. 

5. The wife has no family in Australia.  She had temporary residence status, which has lapsed.  There would be no difficulty in her obtaining a visitor’s visa to attend for the litigation.  The wife has no present connection with the jurisdiction.

1. Does the foreign forum, Singapore, have jurisdiction to deal with the litigation of the parties’ dispute if the husband’s application is stayed?

1. This is a significant matter squarely raised by counsel for the husband. 

2. The applicant wife has the onus in establishing there is a forum for a resolution.  There is evidence from a senior solicitor, Ms Malathi Das, practicing in Singapore, who provided an affidavit filed on 16 September 2011.  Both parties relied on the evidence of Ms Das.  This evidence was in relation to the impact of a foreign divorce order on the wife’s ability to obtain ancillary relief in Singapore. 

3. Ms Das is well qualified to provide an opinion.  She was not challenged as a witness qualified to provide an opinion other than in a peripheral respect.  She said this:

   I am familiar with the laws pertaining to the Singapore superannuation scheme known as [C Fund] and the law pertaining to child abduction since Singapore became a signatory to the Hague Convention in early 2011.

4. Counsel for the husband submitted that Singapore was not in the schedule of countries party to the Hague Convention.  Counsel is correct about that.  However, Ms Das is also correct.  Singapore became a signatory to the Hague Convention in March 2011.  Australia, however, has not yet accepted Singapore’s accession to the Convention.  That process is currently being progressed by the Australian Government.  Accordingly, the Convention is not yet in force between Singapore and Australia, although it is between Singapore and other nations. 

5. I accept Ms Das as a person appropriately qualified to give an expert opinion in this matter.  The relevant advice is contained in paragraphs 17 to 52 of her affidavit.

6. The critical information is that until 1 June 2011 the jurisdiction to grant financial relief in respect of division of matrimonial assets, maintenance for an ex-wife or children, was only exercisable ancillary to the dissolution of marriage in Singapore.  Since that date, the Singapore Family Court has had expanded relief to grant financial relief, notwithstanding the fact that a marriage has been dissolved or annulled elsewhere, where dissolution is entitled to be recognised as valid in Singapore.  This extended jurisdiction, pursuant to the Women’s Charter, has to be invoked by an application for leave. 

7. Ms Das gives her opinion that the wife has “more than an even chance of invoking the jurisdiction for financial relief in respect of division of assets”.  Likewise, in relation to the children, it would be “more likely than not that the Singapore Court will grant leave relating to maintenance”.  In relation to parenting orders, the wife would have to commence the process under the Guardianship of Infants Act.

8. The husband submits that the element of uncertainty about jurisdiction in Singapore amounts to a failure by the wife to discharge the onus in these proceedings.  I do not take that view.  Both parties were aware of the risk relating to jurisdiction in relation to the divorce being granted in Australia.  To the extent that there is a risk, both have accepted it.  Further, the wife understands that the burden of costs would likely fall on her if confidence is misplaced.  She has since ceased attempting to set aside the Australian divorce on the strength of the change in the relevant law of Singapore and her legal advice about that.

1. Substantive law of Australia

1. In the event that property proceedings were heard in Australia there are implications for enforcement of orders made here in Singapore.  Ms Das advises at par 35:

   As regards the immovable property in Singapore, the legal effect in the Singapore forum of a foreign order depends on the nature of the order itself.  Under existing common law, only money judgments are enforceable.  A foreign order dividing up property situated in the forum will not be enforceable in the forum.

2. The fact that a foreign order dividing property is unenforceable in Singapore, represents a potential difficulty which could work to the disadvantage of either party if the proceedings were heard here.  It is part of the significance of the matrimonial assets being in Singapore. 

3. The husband seeks an order in his property proceedings for the payment of a cash sum and declarations of ownership.  There is no certainty of orders being made here only on that basis.  Orders for the division of property by sale could be expected to be made, especially in default of a cash sum payment being made.  There is the stated difficulty in relation to the enforceability in Singapore of foreign orders which divide property.

Conclusion

1. I accept that there is an element of uncertainty about the availability of the jurisdiction in Singapore.  Appropriate orders for costs are likely to be a remedy in the less likely event that jurisdiction was unavailable and proceedings were reactivated in Australia.  The connection to this jurisdiction is limited. 

2. Since separation, the husband has returned to live and work in Australia.  However, the wife and children have lived in Singapore continuously.  The matrimonial assets are in Singapore.  The wife has no family, friends or connections here.  The costs of travel, valuations, bringing witnesses, including expert witnesses as to valuation and Singapore law, are all matters to take into account.

3. The more complete resolution, that is, of all matters put into dispute, is further advanced in Singapore.  The husband has sought orders only in relationship to division of property here.  Further aspects, as raised by the wife in her writ for divorce, would have to be part of an amended application or reply in Australia.  There are the stated difficulties of enforcing Australian orders in Singapore. 

4. For all these reasons, I conclude that Australia is a clearly inappropriate forum and make orders for the stay sought by the applicant wife.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 8 March 2012.

Associate: 

Date:  20 March 2012

ANNEXURE ‘A’

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY   File No. (P)SYC937/2011

BETWEEN

Ms Hugh   (Applicant)

AND

Mr Skinner  (Respondent)

3 February 2012 
Before Registrar Campbell

Heard in Chambers in the absence of the parties

Upon application to the Court it is ordered, directed and noted:

Notations
1.	I note that this matter was listed before me today for a compliance check and file review in chambers.
2.	It is also important to note a brief history of this matter as set out below.
·		There have been two sets of proceedings between these parties in the Australia family law system: an application for financial orders filed in the Family Court of Australia on 17 February 2011 and an Application for Divorce filed in the Federal Magistrates Court on 17 February 2012. Both Applications were initiated by the Husband. An essentially accurate history of the various applications made and the results of relevant court events is set out in paragraphs 8(a) and (b), and 10 to 29 inclusive of the Affidavit of the Husband filed on 13 December 2011.
·		The Wife has, in short, sought to permanently stay the Husband’s financial application on the basis that Singapore is a more appropriate forum to determine those issues, and sought to rescind, review, set aside or otherwise vary the Divorce orders granted by Registrar Walsh on 19 April 2011.
·		The Wife’s subsequent applications to set aside the Divorce orders were finally determined by Federal Magistrate Monahan on 23 September 2011 and took effect 7 days from that date. No appeal has been made against the orders of Federal Magistrate Monahan.
·		At a directions hearing on 25 January 2012 the Court directed that the Wife’s application for a permanent stay of the Husband’s financial application on the issue of appropriate forum be listed before a Judge for hearing, on that issue alone, on a date to be fixed. That hearing date has since be fixed as 6th March 2012. Each party was directed to file and serve any further material on which they intend to rely in relation to the forum issue by 4pm 22 February 2012.
·		At the above mentioned directions hearing the Respondent indicated her intention to challenge the orders made by Federal Magistrate Monahan on 23 September 2011. Directions were made by the court on 25 January 2012 that the Wife take all such action and file all such documents to that effect by 4pm 2 February 2012.
3.	I further note that it appears from the court’s records as at 3pm on 3rd February 2012 that the Wife has taken no further action through the Court, and has filed no further documents, to appeal against, challenge, set aside or otherwise rescind the orders made by Federal Magistrate Monahan on 23 September 2011.
Listing
4.	The Wife’s application set out in her Application in a Case filed 14 November 2011 (save for order 3 sought, which has been deleted) is continuing to hearing before a Judge in Court on 6th March 2012.
Other Orders
5.	It is requested that the Case Co-ordinator forthwith inform all parties by email that these orders have been uploaded to case Track and may be viewed via the Courts Portal. For those parties or lawyers who do not have access to the Court’s portal, the Case Co-ordinator is requested to forward a copy of these orders forthwith by mail.

By the Court

Registrar Campbell