Janssen & Dupont
[2021] FedCFamC1F 127
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Janssen & Dupont [2021] FedCFamC1F 127
File number(s): SYC 7990 of 2016 Judgment of: REES J Date of judgment: 13 October 2021 Catchwords: FAMILY LAW – COSTS – Application dismissed Legislation: Family Law Act 1975 (Cth) s 117(2A) Division: Division 1 First Instance Number of paragraphs: 28 Date of last submissions: 24 September 2021 In Chambers: 13 October 2021 Place: Sydney Solicitor for the Applicant: Blanchfield Nicholls Solicitor for the Respondent: Pearson Emerson Family Lawyers ORDERS
SYC 7990 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DUPONT
Applicant
AND: MR JANSSEN
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
13 OCTOBER 2021
THE COURT ORDERS:
1.That the wife’s application for costs filed 8 June 2021 and the amended application filed 27 September 2021 be dismissed.
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 a pseudonym Janssen & Dupont has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:
On 11 May 2021, I delivered reasons and made orders in relation to a dispute about the appropriate forum for the hearing of financial proceedings between Ms Dupont
(“the applicant”) and Mr Janssen (“the respondent”).
The facts and findings are set out in those reasons and will not be repeated here.
In those proceedings, it was the applicant’s contention that the proceedings should continue in Australia and the respondent’s contention that France was the appropriate forum. There is property in both Australia and France. The applicant lives in Australia. The respondent lives in France.
By an application filed 8 June 2021, the applicant sought an order that the respondent pay her costs of those proceedings.
On 5 July 2021, an order was made providing for the respondent, within 21 days, to file and serve a response and any affidavit upon which he sought to rely in relation to costs. Further, each party, within a further 21 days, was ordered to file any submissions upon which she or he sought to rely and to indicate whether that party consented to the matter’s being determined in chambers without further appearance.
Order 6 made on 6 July 2021 extended the time for the filing of the response and affidavit material by the respondent to 60 days.
The respondent filed a Financial Statement sworn 11 August 2021. Neither party filed written submissions.
On 27 September 2021, the applicant filed an amended application seeking an order that the respondent pay costs in the sum of $125,930.44 together with costs of the application for costs of $8,500.
The applicant relied on the following:
·Affidavit of Ms G (her French lawyer) sworn 7 June 2021.
·Affidavit of the wife sworn 8 June 2021.
·Financial Statement sworn 8 June 2021.
The application is to be determined having regard to the provisions of the Family Law Act 1975 (Cth) s 117(2A) which are set out below:
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The applicant has an income of $162,000 per annum from employment, her share of the rent of the Suburb B property after expenses and from interest.
Apart from her interest in the Suburb B property, the applicant has some $280,000 in
bank accounts and $270,000 in superannuation.
As at 3 June 2021, the applicant had incurred costs of about $25,300 to her French lawyers in relation to the proceedings in France.
The respondent’s income is about $63,000 per annum. He deposes to owning property to the value of about $2,200,000 excluding his interest in the Suburb B property. That amount includes about $50,000 in bank accounts.
There is no evidence of the costs incurred by the respondent in the French proceedings.
The applicant does not assert any conduct on the part of the respondent that would justify the making of an order for costs or that the respondent failed to comply with any order or the Court.
The respondent was wholly unsuccessful in the proceedings.
The applicant relies on offers of settlement.
Relevant to the determination of forum was the evidence of a single expert in French law,
Ms D (“the single expert”), who swore an affidavit annexing a number of reports on
26 April 2021.
Specifically, the single expert 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.
Further, the single expert stated, in his first report dated 4 September 2019:
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.
That evidence founded the conclusion that, although the French Court had jurisdiction, it would not exercise the jurisdiction.
On 31 October 2019, the solicitors for the applicant wrote to the respondent’s solicitors stating:
Our client’s view remains that the report is crystal clear about the jurisdiction in which this matter ought to proceed, and we draw your attention to page 5 and in particular the following paragraph:
The liquidation process has not begun in France and I think that the French court and the Australian Court have jurisdiction to deal with this situation. As the Australian Court has been already seized, if the French Court it 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 proceedings initially filed in Sydney.
On page 7 of the report Ms D confirms:
As explained before the fact 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 reject the demands related to this property.
With respect, the expert makes it abundantly clear that the French court will not take jurisdiction in this case.
It is also abundantly clear that the liquidation process was never started in France, and the expert has confirmed this.
Our client is extremely frustrated that your client is now putting the parties to further unnecessary expense of having a conference with the expert, at significant cost to the parties, when the expert's report does not leave the jurisdiction issue in any doubt.
We request that you counsel your client about the prospects of success of the course of action he has embarked upon, at great cost (financially and otherwise) to our client. We have already put you on notice that an order for costs is being sought against your client if he is ultimately unsuccessful in challenging the jurisdiction being exercised by the Family Court of Australia, which we say he ought to be.
A further letter was sent from the solicitors for the applicant to the respondent’s solicitors on 14 January 2020 stating, inter alia:
We wrote to you on several occasions including on 29 March 2019 inviting your client to consent to the property proceedings being heard and determined in Australia. You were also put on notice that costs will be sought against your client on an indemnity basis for all costs of the jurisdiction dispute if your client is ultimately unsuccessful. Your client nonetheless maintained his objection to jurisdiction.
We advise that since 9 March 2017 (being the date when your client objected to jurisdiction being exercised by the Family Court of Australia) and up to
10 December 2019 , our client has incurred legal costs and disbursements billed by this firm, including Counsel's fees, Court filing fees and general disbursements of
AU$58, 530. 86 including GST. In addition to this, our client has paid the sum of
€2, 000 to Ms D directly for her 50% share of his fees for the expert report. Further to that, our client has paid directly the sum of €1,562.51 in 2019 for advice from lawyers in France. All of the above fees are directly attributable to your client's application to oppose jurisdiction of the Family Court of Australia.However, the evidence of the single expert as to French law was not the only issue to be determined.
At paragraph 37 of the reasons delivered on 11 May 2021, the list of matters to be considered is set out in the following terms:
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 determination did not turn solely on the evidence of the single expert.
In those circumstances, I am not persuaded that it is appropriate to depart from the position that each party should bear his or her own costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate: NS
Dated: 13 October 2021
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