Janssen & Dupont

[2021] FamCA 268

FAMILY COURT OF AUSTRALIA

Janssen & Dupont [2021] FamCA 268

File number(s):

SYC 7990 of 2016

Judgment of:

REES J

Date of judgment:

11 May 2021

Catchwords:

FAMILY LAW – PROPERTY – FORUM – Where the parties entered a French marriage contract – Where the wife seeks orders for the sale of the former matrimonial home in the Family Court of Australia – Where the husband seeks to stay the proceedings for want of jurisdiction – Whether Australia is a “clearly inappropriate forum” – Consideration of the principles in Henry v Henry (1996) 185 CLR 571 – Husband’s application to stay the proceedings dismissed.

Legislation:

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

Foreign Judgments Act 1991 (Cth) s 3

Cases cited:

Henry v Henry (1996) 185 CLR 571

Pierson & Romilly (2020) FLC 93-959

Number of paragraphs:

87

Date of hearing:

4 May 2021

Place:

Sydney

Counsel for the Applicant:

Ms Judge

Solicitor for the Applicant:

Patrick Hargraves & Co

Counsel for the Respondent:

Ms Alexandre-Hughes

Solicitor for the Respondent:

Blanchfield Nicholls

ORDERS

SYC 7990 of 2016

BETWEEN:

MR JANSSEN

Applicant

AND:

MS DUPONT

Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	11 MAY 2021

THE COURT DECLARES:

1.That the Family Court of Australia has jurisdiction to hear and determine a dispute between the husband and the wife in relation to the property at Suburb B.

2.That the Family Court of Australia is not a clearly inappropriate forum to determine the dispute between the husband and the wife in relation to the property at Suburb B.

THE COURT ORDERS:

3.That the application of the husband to stay these proceedings is dismissed.

4.That the matter is listed for mention and directions before the Honourable Justice Rees on 6 July 2021 at 9:30am by Microsoft Teams.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Janssen & Dupont has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Rees J:

1. Ms Dupont (“the wife”) and Mr Janssen (“the husband”) are parties to proceedings in relation to property both in France and in Australia.

2. The wife lives in Australia. The husband lives in France. They both have dual citizenship.

3. The husband seeks orders dismissing the proceedings in Australia for want of jurisdiction or, in the alternate, staying the Australian proceedings “pursuant to the principles of forum non-conveniens”.

4. Thus the issue of forum falls to be determined as a threshold issue.

5. The husband relies on an affidavit sworn by him on 21 December 2020.

6. The wife relies on an affidavit sworn by her on the same date.

7. A single expert Ms D, has provided a report and a number of addenda dealing with the position of the parties under French law. The single expert’s evidence is found in an affidavit sworn by him on 26 April 2021.

8. Some context is necessary to understand the parameters of the dispute.

9. The husband was born in France. The wife was born in Country C.

10. The parties met in Australia and lived together in Australia between 1994 and 1999.

11. The husband deposed that, at the commencement of the co-habitation, he owned three residential properties in France and had significant cash assets in France.

12. In mid-1995, they entered into a marriage contract, “Séparation de biens”, in France and later in 1995, they married in France. The marriage contract specified that the parties adopted:

    … as a basis for their union, the  regime of the separation of property, as defined in Articles 1536 to 1543 of the Civil Code, amended and supplemented by the clauses of this document.

13. The Civil Code referred to is the French Civil Code.

14. The effect of the marriage contract is that each party retained ownership of moveable or immoveable property in his or her possession at the time of the marriage and property which may come into his or her possession after the marriage. The marriage contract does not deal with property acquired jointly after the marriage.

15. In 1996, they purchased a property in Suburb B as joint tenants for $450,000. They never lived in the property which was rented out.

16. They both became Australian citizens on 21 July 1999 and in August or September 1999 they moved, with their children, to live in French Overseas Region F.

17. In May 2002, they separated in Region F. The wife instituted proceedings in Region F in relation to divorce which were “revoked” by the end of 2003. I infer that the proceedings were either discontinued or that the wife failed to prosecute her application.

18. In mid-2004, the husband returned to live in France and the wife and the children remained in Region F.

19. On 23 May 2005, the wife again instituted divorce proceedings in Region F. In November 2005, a court in Region F made interim orders in relation to parenting and financial support.

20. In mid-2009, the wife and the children returned to live in Australia.

21. On 10 June 2014, the court in Region F made orders in relation to maintenance, parenting, child support and divorce. Specifically, the wife made a claim for “prestation compensatoire” which the single expert explained as a:

    …compensatory lump sum, which is a maintenance after divorce to compensate the breach in level of life created by the divorce.

22. Those orders did not deal with property, either the Suburb B property or the husband’s property in France.

23. In August 2014, the wife appealed against the Region F orders.

24. The divorce took effect in 2016.

25. The court in Region F dismissed the wife’s appeal in October 2016.

26. On 2 December 2016, the wife filed an application in the Family Court of Australia, seeking orders for the sale of the Suburb B property and the distribution of the proceeds as to 80 per cent to her and the balance to the husband.

27. The husband filed a response to that application on 9 March 2017 seeking orders to the effect that the wife’s application be dismissed for lack of jurisdiction and that the issue of jurisdiction be considered as a threshold issue.

28. In October 2020, the husband filed an application in the French court seeking a determination of the parties’ shares in the Suburb B property.

29. On 19 November 2020, the wife filed an Application in a Case seeking orders to the following effect:

    ·Dismissing the husband’s application to stay the Australian proceedings.

    ·Requiring the husband to discontinue the French proceedings.

    ·Restraining the husband from continuing to prosecute the French proceedings.

    ·In the alternative, an anti-suit injunction in relation to the husband’s continuing to prosecute the French proceedings.

    JURISDICTION

30. The husband’s application for dismissal of the wife’s proceedings for want of jurisdiction is easily determined.

31. Section 39(4) of the Family Law Act 1975 (Cth) (“the Act”) provides that proceedings of this nature can be instituted under the Act if:

    any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date.

32. The wife, at the time she instituted these proceedings, was an Australian citizen, ordinarily resident in Australia and present in Australia.

33. The Family Court of Australia has jurisdiction to hear and determine the substantive proceedings. The issue is whether the Family Court should proceed to exercise that jurisdiction.

    THE LAW

34. In circumstances where financial proceedings have been regularly instituted in courts exercising jurisdiction under the Act, a court might stay those proceedings if the doctrine of forum non conveniens compels the conclusion that the court is a “clearly inappropriate forum”.

35. In Henry v Henry (1996) 185 CLR 571 ("Henry"), the High Court considered the principles to be applied in considering an application relating to forum. The Court held that the test to be applied is that of a "clearly inappropriate forum". The High Court noted:

    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. 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.

    (Footnotes omitted)

36. Further, the Court noted that:

    25.… 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 of the parties and for the ends of justice’”.

37. It follows from the decision in Henry that the matters here to be considered are:

    ·Do both Courts have jurisdiction in relation to the parties and their marriage?

    ·If both have jurisdiction, will each recognise the orders and decrees of the other? If the orders of the foreign Court will not be recognised in Australia, that will ordinarily dispose of any question that the local proceedings should not continue.

    ·Which forum can provide more effectively for complete resolution of the matters involved in the controversy?

    ·The order in which the proceedings were instituted, the stage they have reached and the costs that have been incurred.

    ·The connection of the parties and their marriage to each of the jurisdictions.

    ·Whether, having regard to their resources and their understanding of the language, the parties are able to participate in each jurisdiction on an equal footing.

    ·Does either party have a legitimate personal or juridical advantage in proceedings in his or her chosen forum?

38. As the Full Court stated in Pierson & Romilly (2020) FLC 93-959:

    14.…the process is not one of weighing those factors that point towards a stay against those that point away from a stay, but rather of assessing whether there are enough factors indicating that the forum is clearly inappropriate, in which case a stay should be granted. If there are significant factors pointing to the conclusion that the chosen forum is appropriate, it is immaterial that there may be many factors suggesting that another forum might also be appropriate or even more appropriate.

    THE EVIDENCE OF THE SINGLE EXPERT

39. The single expert was asked a series of questions and answered those questions. The expert referred to the process whereby the distribution of property is determined as the “liquidation”.

40. In summary, the single expert stated:

    ·Because the parties have signed the marriage contract, the liquidation (in France) is limited to only the property owned in common (jointly owned) or debts in common (joint debts).

    ·The effect of the marriage contract is that the marriage will have no effect on the spouses’ assets.  Each spouse will keep the ownership of properties acquired in his or her name during the marriage and all income received during the marriage belongs to the spouse who earned it.

    ·The liquidation can concern all the property owned by the parties both in France and abroad.

    ·In a French court, the rules of private international law will be applied.

    ·The Court in Australia could deal with the dispute over the Suburb B property and the French court with the other aspects of the liquidation.

    ·No decision has been made in the French court on the parties’ percentage share in the Suburb B property.

    ·As the Australian court has already been seized if the French court is seized second, the French court will not deal with the Suburb B property. The French court will apply the lis pendence rules and reject it’s jurisdiction for the Australian property due to the proceedings initially filed in Sydney.

    ·In the event that an Australian court declines to exercise jurisdiction, a French Court will assume jurisdiction.

    ·The Australian court could deal with the Suburb B property independently to the rest of the matrimonial assets.

    ·The fact a proceedings is pending in Australia about the Suburb B property will prevent the French courts to take any decision about it. A French judge will consider that the case is already pending in Australia and reject an application in relation to this property.

    ·By taking steps to sever the joint tenancy, the husband has not renounced the jurisdiction of the French court. Nothing done by the husband in Australia affects the jurisdiction of a French court.

    CONSIDERATION

41. I propose to consider the matters specified in Henry having regard to the evidence of the single expert. The issue to be determined is whether Australia is a “clearly inappropriate forum”.

    Do both Courts have jurisdiction in relation to the parties and their marriage?

42. The Australian court has jurisdiction by virtue of the provisions of s 39(4) of the Act.

43. The single expert’s evidence is that the French court also has jurisdiction.

44. However, the single expert also stated:

    As the Australian Court has already been seized if the French Court is seized second, the French court will not deal with the Suburb B property. The French court will apply the lis pendence rules and reject its jurisdiction for the Australian property due to the proceeding initially filed in Sydney.

45. The single expert also stated:

    As explained before the fact that a proceeding is pending in Australia about the Suburb B property will prevent the French courts to take any decision about it. A French judge will consider that the case is already pending in Australia and rejected (sic) the demands related to this property.

46. Thus I conclude that both the Australian court and the French court have jurisdiction. The French court will exercise its jurisdiction if the Australian court declines to do so.

    If both have jurisdiction, will each recognise the orders and decrees of the other? If the orders of the foreign Court will not be recognised in Australia, that will ordinarily dispose of any question that the local proceedings should not continue.

47. The provisions of the Foreign Judgments Act 1991 (Cth) are not available to enforce any order made in France in relation to the Suburb B property because, by virtue of s 3 of that Act, matrimonial causes or proceedings in relation to matrimonial property are excluded from the definition of action in personam.

48. I was not referred to any statutory provision which would enable the enforcement of a French order in an Australian court.

49. Counsel for the husband relied upon the decision of the Full Court in Pierson & Romilly (2020) FLC 93-959 where the court stated:

    54.It was not necessary for the primary judge, nor is it necessary for us, to determine whether a French order might provide the basis for making a s 78 declaration or how a French order will otherwise be enforced. The issue may not ultimately need to be determined by an Australian court. The husband is a French national and subject to the laws of France. Any order made by a French court that the husband do things or sign documents in relation to Property D or any encumbrance on that property will bind him, in personam, in France and the wife is a party to those proceedings.  

50. I do not accept, as was submitted by counsel for the husband, that this passage can be taken as authority for the proposition that an order of a French court in matrimonial proceedings can be enforced in Australia by seeking a declaration pursuant to s 78 of the Act.

51. The single expert, in cross-examination stated that a French court could not enforce an order made in France for the sale of the Suburb B property or the transfer of the interest of one party in the property to the other.

52. In the present proceedings, there is no evidence from the single expert on the issue of whether a French court would enforce an Australian order. However, any order made in Australia relating to the disposition of property in Australia could be enforced in Australia without the necessity to seek the assistance of a French court.

    Which forum can provide more effectively for complete resolution of the matters involved in the controversy?

53. The only issue left to be determined between these parties is the distribution of the Suburb B property. All other issues between them have been determined in the French court and the wife’s appeal against that determination has been dismissed.

54. Since the subject property is in Australia and there is some doubt about whether an order made in a French court could be enforced in Australia, it is likely that an Australian court could provide more effectively a complete resolution of the issue.

    The order in which the proceedings were instituted, the stage they have reached and the costs that have been incurred.

55. On behalf of the husband, it is asserted that “the parties are immersed and have been immersed since 2002 in the French litigation which can lead to a determination of their respective interests in the Suburb B property…”

56. The evidence does not establish that there was any application before a French court to deal with the Suburb B property before October 2020.

57. The French court has dealt with issues relating to the children and to the application for prestation compensatoire.

58. The evidence of the single expert in this respect is set out at pages 7 and 8 of the affidavit in the following terms:

    9.Is it correct to say that the French courts have noted in their reasoning that both parties are joint owners of the Suburb B property?

    The Family judge and the Court of appeal in their respective decisions on the divorce proceeding considered the fact that the parties owned jointly a property in Sydney…

    Indeed the statement about this property has been made in their divorce submissions at this stage:

    ·Because they have to present a draft of the way they intend to share their matrimonial regime, this draft is mandatory but not binding for the judge.

    ·Because [the wife] made a claim to obtain a “prestation compensatoire” compensatory lump sum, which is maintenance after divorce to compensate the breach in the level of life created by the divorce. Each party have to provide a “declaration on honour’ of their estate and financial situation, in order to the judge to see if the claim should be granted or not.

1. I do not accept the submission made by counsel for the husband, as I understand it, that the proceedings in France, in relation to the interests of the parties in the Suburb B property have been ongoing for many years and, in fact, pre-date the filing of the proceedings in Australia.

2. The evidence of the single expert was clear that, in France, there are three separate stages to be completed.

3. Firstly, there must be an application for divorce in which the ancillary claims are determined. In the present matter, the court determined issues of parenting and the prestation compensatoire. In those proceedings, the court was not asked to determine their respective right to property.

4. Secondly, and after the parties are divorced, they are referred to notaries to negotiate a settlement of their respective claims in relation to their property.

5. Lastly, if they are unable to reach a negotiated settlement, either party may file a Summons for Liquidation and Partition. This is a new proceeding.

6. In his report, which predated the filing by the husband in October 2020, the single expert stated, in answer to questions from the husband:

   10.Is it correct to say that the French Courts have not specified or dealt with the question of the percentage of each party’s share in the Suburb B property?

   This is correct…

   11.      If the answer to question 10 above is “no”:

   (a)       Have the French Courts commenced the liquidation process; or

   (b)Have the French Courts simply Ordered the liquidation process to be conducted by the Notary?

   (c)What is the outcome in terms of the parties’ percentage shares in the Suburb B property?

   No, the French court has not commenced the liquidation process.

   The French Court has simply ordered, because of the divorce, the liquidation of the matrimonial regime in front the notary chosen by the parties.

7. The first proceedings in which a court was asked to make an order for the division or transfer of the Suburb B property were those instituted by the wife in Australia.

   The connection of the parties and their marriage to each of the jurisdictions.

8. The parties are dual citizens of both France and Australia.

9. The husband lives in France. The wife lives in Australia.

10. The marriage took place in France.

11. The subject property is in Australia.

    Whether, having regard to their resources and their understanding of the language, the parties are able to participate in each jurisdiction on an equal footing.

12. Both parties speak French as their first language.

13. The husband lived in Australia between July 1991 and August 1999 and has presumably attained an adequate level of English since his affidavit of 21 December 2020, of some 29 pages, was sworn without the assistance of an interpreter.

14. The husband has participated in these proceedings since December 2016, instructing his solicitor and counsel.

15. The wife speaks French and participated in the French proceedings.

16. Each would be similarly disadvantaged if required to litigate in a country in which he or she was not resident.

    Does either party have a legitimate personal or juridical advantage in proceedings in his or her chosen forum?

17. Each forum is advantageous to one of the parties.

18. The husband asserts a significant advantage to him if the issue were determined in France.

19. The evidence of the single expert is that, in a French court, the emphasis will be on the financial contributions made to the acquisition of the property. The single expert stated:

    The only claims that could be brought before the French court are:

    ·     For reimbursement if one of the spouses have invested in the other property, for example if one of the spouses has paid renovation in the property of the other he or she should be entitled to reimbursement of his or her expenses.

    ·     For partition if they have properties on joint name. In the case of dissolution of the marriage, unless if the spouses want to keep the property in joint names they will have end joint ownership. In this situation, two options are possible:

    o   One of the spouses could purchase the share of the other.

    o   No one could purchase the share of the other, in this case, the property has to be sold and the price shared between the parties. If one of the spouses refuses to sell the property, the other could forced the sale and have it done by auction, in this case the price will be shared between the parties.

    (As per the original)

20. Asked to assume that the husband had paid the whole of the purchase price and acquisition costs of the Suburb B property, the single expert stated:

    …if the spouses jointly owned a property and it appears that one of them as solely or mainly contribute to the payment of the purchase price, this spouse will be entitled to a claim against the other for the reimbursement of the contribution he or she has made on behalf of the other.

    In this case, if the Suburb B property has been purchased in joint name but the price has been paid only by [the husband] he is entitled to claim reimbursement against [the wife] for the investment he has made on the property on her behalf. He has a credit against her for what he has paid on her behalf. The value of his claim should be estimated taking into account the investment done and the current value of the property.

21. However, even that matter is not straightforward. The single expert gave evidence that rules of estoppel apply under French law so that if, for example, the husband had asserted in earlier proceedings that the ownership of the property was equal, he may be estopped from asserting otherwise in the future.

22. The single expert, in oral evidence, referred to the right of the wife under French law to make a claim for “remunerative donation” which is a claim not affected by the marriage contract. In his report, the single expert stated that there is extensive case law on the topic and the considerations might include such factors as the wife’s performing the role of carer for the children and home maker; foregoing paid employment to care for the children; performing unpaid work for the husband’s business entities or sacrificing her career to take care of the family and facilitation the husband’s career advancement.

23. The husband asserts a significant advantage to the wife if the issue were determined in Australia because an Australian court may determine that the pool of property available for distribution includes the property of the husband in France which is excluded from consideration under French law.

24. Thus both parties have a legitimate juridical advantage in proceedings in her or his chosen jurisdiction.

    CONCLUSION

25. None of the matters set out above leads to the conclusion that Australia is a clearly inappropriate forum for the resolution of this dispute.

26. The husband’s application will be dismissed.

27. The husband has undertaken that he will not further prosecute the French proceedings until such time as this court determines whether it will exercise jurisdiction.

28. Nothing in the husband’s undertaking prevents the husband from continuing the French proceedings after these reasons are delivered and orders made.

29. However, the single expert’s evidence is that the French court will decline to exercise jurisdiction if this court proceeds to exercise it. In those circumstances, I do not propose to make the anti-suit injunction sought by the wife but that application can be renewed if necessary.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       11 May 2021