JVH and ACNG - [2006] FMCAfam 551

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JVH & ACNG

[2006] FMCAfam 551

FAMILY LAW – Divorce – stay of proceedings – forum non conveniens.

Family Law Act 1975, s.48
Evidence Act 1995, s.177

Henry and Henry (1995) 185 CLR 571
Oceanic Sunline Special Shipping Company Inc. and Fay (1988) 165 CLR 197
Voth and Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Spiliada [1987] AC 460
Dobson and Van Londen (2005) 33 FLR 525

Applicant:

JVH

Respondent:

ACNG

File Number:

NCM279 of 2006

Judgment of:

Lapthorn FM

Hearing date:

13 September 2006

Date of Last Submission:

13 September 2006

Delivered at:

Newcastle

Delivered on:

15 September 2006

REPRESENTATION

Counsel for the Applicant:

Mr Hartley

Solicitors for the Applicant:

Peter Evans & Associates

Counsel for the Respondent:

Dr Ingleby

Solicitors for the Respondent:

Lander & Rogers

ORDERS

The wife’s application filed 31 March 2006 is dismissed.
A Divorce Order be granted to come into effect in one month’s time.
The respondent husband is to file written submissions for costs within 28 days and the respondent wife reply within 21 days of receipt of the husband's submissions.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCM279 of 2006

JVH

Applicant

And

ACNG

Respondent

REASONS FOR JUDGMENT

I have before me an application to stay the continuation of divorce proceedings. The matter was heard on 13 September, having been previously in the list on 12 April and 22 August.
On 12 April the matter came before Housego FM and the matter was set down for a hearing on 22 August. On that day counsel for the husband appeared but when the matter was called on there was no appearance by or on behalf of the wife. It appears there had been some error in counsel's recording of the matter and the matter could not proceed on that day. The matter was adjourned to 13 September when I heard submissions from Dr Ingleby on behalf of the wife and

Mr Hartley on behalf of the husband.
An application for divorce was filed by the husband on 7 February 2006. No response has been filed to that application. However, an application to stay the hearing of the divorce was filed on 31 March 2006. The issue to be determined is whether Australia is an inappropriate forum to hear the divorce application.
The material that was read in the case on behalf of the wife was the application that I have already mentioned, an affidavit of the wife filed on 7 April 2006, an affidavit of SHML filed on 7 April 2006, the affidavit of the wife filed on 8 September 2006, an affidavit of HML filed on 8 September 2006 and the affidavit of BML filed on

8 September 2006.
An affidavit of AJF, which was initially filed on behalf of the husband, was also read in the wife's case. The husband did not seek to rely on that affidavit during the course of his submissions.
The husband's material that was read was the application for divorce filed on 7 February 2006, his response filed on 10 April 2006, an affidavit of the husband filed on 10 April 2006 and the affidavit of the husband filed on 17 August 2006.
As I have indicated, the affidavit of AJF was initially sought not to be read by the husband but pressed by the wife. I allowed the wife to read the affidavit of AJF because it would have been unfair to the wife to form the view that that affidavit was not being read when no notice was given to her of that fact and the wife had sought to rely on its contents. If the husband had indicated earlier that the affidavit was not being read, the wife would have been in the position to put the same or similar evidence before the Court. I therefore read that affidavit.
An issue arose during the course of the proceedings as to the two affidavits of HML that I have referred to. Ms L is the solicitor in Singapore who acts on behalf of the wife. She has also in the past acted as a mediator for the parties and I indicated the Court's concern as to the inappropriateness of the mediator then acting on behalf of one of the parties. The affidavits purport to be affidavits of an expert witness setting out the law in Singapore in relation to matrimonial proceedings.
No certificate was provided to the husband pursuant to s.177 of the Evidence Act. However, because the husband is keen for this matter to proceed, he ultimately did not take any objection to the Court reading the affidavits of Ms L.
I am satisfied that it was appropriate to read her affidavits given the fact that this matter has been before the Courts for some time now, although I express again my concern as to, firstly, the inappropriateness of a person purporting to be an expert when they are retained as the solicitor for the party albeit in a foreign jurisdiction, and more so, the fact that this person acted as a mediator and then acted for the party.
I will now turn to a brief outline of the background. Before doing so, I can indicate that having read all of the material I have had regard to all of the evidence set out therein. This matter proceeded by way of submissions only and I did not observe either of the parties in the witness box.
I am satisfied in all of the circumstances that it was appropriate to proceed that way.
The husband is 68 years of age, the wife 58. The husband was born in New Zealand and is a permanent resident of Australia and Singapore. The husband has lived in all three countries for various periods of his life. He has spent more than 25 years in Australia and owns a property in Seaham, New South Wales. He regards Australia as his home and his three adult children from a prior relationship live in Australia.
The wife has lived all of her life in Singapore, save for a period of about two and a half years between 2000 and 2003 when both the husband and wife lived in Australia.
They were married on 11 May 1991 and separated in October 2004. There is evidence, though, that the parties did not always live together but at times considered themselves to still be married.
The wife says that she would be significantly disadvantaged if this matter were to proceed in Australia, that is the divorce proceedings, because under Singaporean law she is not able to apply for maintenance or property proceedings in the Singapore Courts unless there is a divorce application before the Court in Singapore. She relies on the evidence of Ms L, to which I have already referred, to support that position. I do not propose to repeat the evidence of Ms L. In summary it says that it is necessary for either of the parties to bring an application for the primary relief, that is divorce, before the Court in Singapore has jurisdiction to hear the ancillary relief, such as maintenance or property proceedings.
There was some doubt thrown on that view when the Court read the annexure to AJF's affidavit. AJF's affidavit set out an internet search of the matrimonial law from the Singaporean Government Website as to what parties may do in relation to their divorce proceedings. Particular interest was raised with counsel to paragraph 10 of that document which is in a question and answer form. The question is:
I want to live separately from my spouse without a divorce. Must I enter into a Deed of Separation with my spouse or apply for any Court order on the children, maintenance or other ancillary matters?
The document says that it is not necessary to enter into a Deed. The parties may simply live separately. However, it was possible for the parties to formalise agreements in relation to children, maintenance and the division of matrimonial assets by agreement by the signing of a Deed of Separation. It went on to say:
If you want to deal with the division of matrimonial assets as if you are divorced but you do not want a divorce, you may have to apply for judicial separation and ask the Court to divide the assets.
Having considered that area of the evidence, I am satisfied that in Singaporean law it is necessary for there to be some primary application before the Court for either a judicial separation or divorce before the Court will entertain any application for maintenance or matrimonial assets. It is possible obviously, however, for the parties to enter into a Deed of Separation. Whether it would be possible for them to do so after the granting of a divorce in this country remains undetermined by this Court but given Australian decrees and orders are recognised by Singapore I am of the view that that would be unlikely.
The mother also says that it would be difficult in Australia to determine any application she may bring for maintenance because the Australian Court would have to determine the costs of living in Singapore. Of course that is a valid argument for the wife to raise, however, the same argument is mirrored because it would be for the Singaporean Government to ascertain the cost of living in Australia in order to determine the husband's ability to meet the maintenance order sought. The difficulty arises for both Courts.
The wife says that she would have most of her documents, if not all, in Singapore and that in any property application there would be a need for discovery. Again, this difficulty would be experienced in the mirror by both parties because the husband has much of his material in Australia.
The wife relies heavily on the issue of her health and in support of that issue she relies on the affidavit of BML which was filed on 8 September. Dr L is a Senior Consultant Rheumatologist and Physician and has treated the wife for some time. The doctor tells the Court that the wife is suffering from Primary Sjogren’s Syndrome and has done so since 1999. This is evidenced by dryness of eyes and mouth, dental cavities, tiredness and joint aches. She also has a goitre and had pancreatitis in 1987 and a number of other medical issues. She is under medication for her conditions. The doctor says that her advice is that the wife not travel overseas as the weather changes and stress of travel will aggravate her illness and delay her recovery.
The wife, of course, did have this illness when she travelled to Australia in 2000 and again when she travelled back to Singapore in 2002. I am satisfied, however, that the wife does suffer from this debilitating condition and that it is a factor that the Court must take into account.
The wife also says that the husband travels and frequently travels to Singapore. She has no evidence of that before the Court. She, however, through her counsel, invites the Court to make a finding that the husband does so on a regular basis because he has failed to comply with a request made on 28 August, 6 September and 11 September this year to provide a copy of his passport to the wife so that she may make submissions in that regard.
As I had indicated earlier, the wife's counsel did not appear when the matter was before the Court on 22 August. On that occasion later in the day an agent appeared on behalf of the wife and apologised to the Court for the oversight on the part of the wife's counsel. I indicated on that occasion that since the husband was due to travel to New Zealand and would not be available when the Court could hear this matter that he, as well as the wife, was excused from attendance on 13 September.
It was clear to those present in the Court room that the husband would be out of the country and I find that the wife's solicitors have failed to request a copy of that passport in sufficient time for the husband to have a copy provided before his departure. If I am wrong in the fact that he may have departed much later, I am still of the view that as this matter has been before the Court since 12 April 2006 the wife's solicitors have not prosecuted such request in sufficient time and therefore I will not take up the invitation to find that the husband travels to Singapore on a regular basis.
The wife also argues that should the matter of her property proceedings necessarily be heard in Australia that not only will she have difficulty travelling because of her health but also if she were to alternatively appear by video such a means would not be effective given the need to observe documents and give evidence through video and the consequential time delays.
The husband argues that the same inconveniences would fall on him if the matter was heard in Singapore. It is simply a matter of fact that these parties live in different countries and no matter which jurisdiction is the vehicle for the prosecution of any claims; the inconvenience would arise for one or the other. The husband says that the majority of his documents are in Australia. He argues that a video appearance would be effective and that although he recognised that the wife does suffer a health condition it is not sufficient to preclude travel altogether.
I will deal more specifically with these issues later in this Judgment.
I turn now to the law in this matter. The leading case which is still the law in this country is a decision of the High Court of Australia in Henry and Henry (1995) 185 CLR 571. The test to be applied is whether the Australian Court is a clearly inappropriate forum. This test requires the Court to determine whether the continuation of proceedings in the local court would be oppressive or vexatious in the sense that those words were used by Stein J in Oceanic Sunline Special Shipping Company Inc. and Fay (1988) 165 CLR 197 at page 247.
At page 587 of the report in Henry, the Court, referring to the decision of Voth and Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 said:
………this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, 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."
It was also held in Voth that in determining whether the local court is a clearly inappropriate forum, "the discussion of Lord Goff in Spiliada [1987] AC 460, of relevant 'connecting factors' and 'a legitimate personal or juridical advantage' provides valuable assistance." In this last regard, Lord Goff of Chieveley expressed the view that 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 the parties and for the ends of justice'".
The decision in Voth made it clear that the question whether the local court is clearly an inappropriate forum requires attention to be directed to the inappropriateness of the local forum and not the appropriateness, or comparative appropriateness, of the suggested foreign forum. At page 558 of that decision, the majority of the High Court said this:
The clearly inappropriate forum test is similar to and for that reason is likely to yield the same result as the more appropriate forum test in the majority of cases. The differences between the two tests will be of critical significance only in those cases, probably rare, in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one. But the question which the former test presents is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums. That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum. The important point is that in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the Court may more readily conclude that it is not a clearly inappropriate forum.
The majority in that decision went on at page 559 to say:
Granted that there is an obligation on the domestic courts of this country to exercise jurisdiction which is conferred upon them - a matter on which the majority in Oceanic Sun was united - it does not extend to cases where it is established that the forum is clearly inappropriate. To say in line with the Spiliada approach that the selected forum is justified in refraining from exercising its jurisdiction when it concludes no more than that another available and competent forum is more appropriate, is to acknowledge that a court can decline to perform its obligation to exercise jurisdiction even though it is an appropriate or not inappropriate court. That proposition is by no means easy to sustain as a matter of legal principle.
I return to the decision of Henry and in particular to page 591 where the majority in that decision held that:
It does not follow that because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or even that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of "seriously and unfairly burdensome, prejudicial or damaged", or vexatious in the sense of "productive of serious and unjustified trouble and harassment." And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.
In Henry the majority set out a number of factors that should be considered. At page 592 of that decision the learned Justices said this:
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.
I turn therefore to those issues. Firstly, whether each forum recognises the orders and decrees of the other. This is not an issue in this particular case with both Australia and Singapore mutually recognising each other's orders and decrees.
The next issue of which forum can provide more effectively for the complete resolution of the controversy. In the decision of Dobson and Van Londen (2005) 33 FLR 525, the Full Court of the Family Court constituted by Finn, May and Boland JJ at paragraph 46 on page 536 held:
The observations contained in the joint Judgment in Henry concerning the need to treat issues arising between husband and wife as forming but one single controversy arising out of the matrimonial relationship have application not only when considering the stay of local proceedings on forum non conveniens grounds but also when considering the grant of any anti suit injunction.
In this particular case I am satisfied that it is appropriate to treat the divorce proceedings and any ancillary relief, whether here or in Singapore, as being of the one controversy. Having said that, I then need to consider whether it is possible for all of the controversy to be determined in Singapore and Australia. Clearly, in Australia both the husband and the wife will have a right to have determined all of their matters, whether it be the dissolution of the marriage, maintenance or property proceedings.

There is doubt that in Singapore, if a divorce is granted in this country, whether either party can seek a maintenance or property adjustment order there. However, it may be possible if a divorce application is brought in Singapore for all of the matters to be determined in Singapore. I will deal later in this Judgment as to the issue of divorce itself.
I turn now to the order, stage and costs of the proceedings. No other proceedings have yet been instituted in either Australia or Singapore. The husband has been the first to file and the filing of his application is the application for divorce which, as I have said, was filed on

7 February this year. There will be costs associated with any other proceedings which may flow after the hearing of any divorce application. The costs, because this is an international marriage, if I can use that phrase, will be significant for one or both of the parties no matter where the matter is heard.
I turn now to the connection of the parties and the marriage to each jurisdiction. The wife has lived in Singapore all of her life, save for the two and a half years that I have already referred to. She says that her home is in Singapore, any employment prospects are in Singapore, any details about her financial affairs are in Singapore.
The husband was born in New Zealand. He has lived in New Zealand, Australia and Singapore. His home, however, is now in Australia and he not only has his home here but also has all of the documents that he would require if he is responding to or prosecuting any application.
I am satisfied that the wife's primary connection is to Singapore and the husband's primary connection is to Australia. I had indicated earlier that I had rejected the wife's submission that I should accept the invitation that the husband travels regularly to Singapore. I find no reason why he cannot travel to Singapore, however, that is not the particular issue when dealing with the parties' connection and the marriage connection to Singapore. I do note, however, that the parties were married in Singapore, they lived part of their married life there and part of their married life in Australia.
I turn now to the issues upon which relief might depend in the differing jurisdictions. I had indicated earlier that it is unlikely that the wife would be able to proceed with any maintenance application in Singapore if the divorce is granted here. That does not stop her, however, from bringing an application for maintenance or property adjustment in this country.
I am not satisfied that the parties would be entitled to obtain a divorce in Singapore. The law is different in Singapore than Australia. In Australia the parties need be separated for 12 months and for their relationship to have been irretrievably broken. In Singapore the law is a lot more detailed and I do not propose to repeat all of the law but the affidavit of Ms L has been of assistance here.
Ms L is of the view though that the parties would be able to proceed because of the treatment that the wife has received from the husband. The wife gave evidence that she would be prepared to enter into an agreement to present, in effect, a united front to the courts in Singapore. However, this court will not be a party to any attempt to be less than truthful to a court of a foreign land.
Clearly there is on the evidence sufficient grounds for a divorce to be granted in this country. There is some doubt on that issue in Singapore.
The next issue I turn to is the ability of the parties to participate in the proceedings on an equal footing. The wife would clearly argue here, as she does, that she would be disadvantaged by appearing by video link if the matters were to proceed in Australia. This technology is frequently in use and I am not satisfied that the wife would be in any way disadvantaged should the matter have to proceed by way of video.
As indicated earlier in the quotation from page 592 of Henry, the prima facie right to insist upon the exercise of jurisdiction once invoked should not be given undue influence. It remains, however, a relevant factor. I note that it was the husband who filed initially for this application and I note from a copy of the emails that have been annexed to the affidavit of the wife that the husband had spoken to the wife for some time about this issue. The wife did not bring any proceedings for divorce in Singapore before the husband brought his application in Australia.
This is a finely balanced case, having regard to the position the wife finds herself in and also the position the husband finds himself in. Each forum is able to provide certainly the ancillary relief to the parties and at some time in the future Singapore would be able to provide relief to the parties in relation to divorce. It may be able to do so now, however, it is clear that the divorce order could be made now in Australia.
Although the wife has a medical condition, I am not satisfied that she would be so disadvantaged in having any maintenance or property proceedings heard in Australia that would amount to being oppressive. I find that there are insufficient grounds to hold that it would be oppressive or vexatious if the matter was to proceed in Australia.
I am not satisfied that Australia is the clearly inappropriate forum and for the reasons that I have indicated I would dismiss the wife's application.
I turn now to the application for divorce.
In relation to the divorce application, I am satisfied that the wife has been served with the application and that the husband is a resident of Australia. I am satisfied the marriage has been proved and that the parties were married on 11 May 1991. I am satisfied that there has been an irretrievable breakdown of marriage proved and that the parties have been separated for longer than 12 months.
I therefore grant the divorce order which will become effective in one month's time. There is insufficient evidence of the need for urgency and therefore I will not abridge the time.
I will make an order that the respondent husband file written submissions for costs within 28 days and that the wife reply within

21 days of receipt of the husband's submissions. I will then determine that matter in chambers.
For these reasons I make the orders set out at the beginning of this Judgment.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Lapthorn FM

Acting Associate: Helen Drysdale

Date: 13 October 2006