[2000] FamCA 1045
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No SA2 of 2000
AT MELBOURNE Appeal No SA20 of 2000
File No ML10919 of 1998
BETWEEN:
RK
Appellant Husband
- and -
SK
Respondent Wife
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: FINN, KAY & HOLDEN JJ
DATE OF HEARING: 21 and 22 June 2000
DATE OF JUDGMENT: 5 September 2000
APPEARANCES: The Appellant Husband in person.
The Respondent Wife in person.
RK and SK
SA2 of 2000; SA20 of 2000;
ML 10919 of 1998
Coram: Finn, Kay & Holden JJ
Date of hearing: 21 & 22 June 2000
Date of judgment: 5 September 2000
JURISDICTION-stay of proceedings - foreign proceedings between the same parties -whether a stay should be granted in favour of a foreign forum- Iranian marriage - parties immigrating to Australia- proceedings relating to aspects of the marriage pending in both countries- property in Australia.
PROCEDURAL FAIRNESS- W failed to disclose all documents in her possession-H could not demonstrate that W’s failure to disclose rendered the trial unfair.
The parties were married in Iran in 1974. There were five children born of the relationship. H had three adult children from a previous relationship. There was some dispute about the date of separation; H alleged that it occurred when the parties arrived in Australia in 1989, whereas W alleged that it was in September 1996.
At the commencement of the marriage, H owned three properties in Iran. After the Iranian revolution in 1979 he was unable to continue his work as a customs agent, and was unemployed.
The parties migrated to Australia in 1989 pursuant to a special refugee and humanitarian program. The parties received welfare benefits. In 1990, H purchased a property for $310,000. The property was financed from funds in overseas accounts which H alleged he had borrowed from his eldest son of his first marriage.
In February 1998, H returned to Iran and was arrested for failing to declare a small bottle of alcohol in his possession. He was imprisoned for 3 months. During this period, W returned to Iran and opened H's safe taking a number of documents, 1 kg of gold and a number of Persian carpets.
In about October 1997, W’s brother, on her behalf, made an application to an Iranian court for the return of her marriage portion as specified in the parties’ marriage contract. The Iranian court ordered H to repay W her marriage portion.
W then filed proceedings in the FCA seeking alteration of property interests, and the capitalisation of child support. H returned to Australia to defend the proceedings.
W further sought to restrain H from leaving the jurisdiction until he had complied with any court orders.
H contended that the extent of W’s entitlements to receive any relief from him was already the subject of orders made by an Iranian court. He also asserted that he owned no assets and that any monies that existed in foreign…
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CaseChat Overview and Summary
The legal issues before the Full Court included whether the trial judge erred in her finding regarding the date of separation, and whether the matrimonial law of Iran had any bearing on the Australian proceedings. Specifically, the husband argued that parallel proceedings in Iran, where he claimed the parties were bound by their marriage contract, should lead to a stay of the Australian proceedings.
The Court upheld the trial judge's finding on the date of separation, finding ample evidence to support her conclusion that the parties had not separated immediately upon arriving in Australia, despite the husband's assertions. Regarding the relevance of Iranian law, the Court considered the principles established in *Henry v Henry* concerning vexatious and oppressive parallel proceedings. The Court reasoned that property proceedings arising from the breakdown of a marriage are intrinsically linked to the dissolution proceedings. Given that the Australian proceedings involved real estate located in Australia, an Australian court would likely not recognise an Iranian decree concerning that property, as Australian courts generally decline jurisdiction over foreign land. Furthermore, foreign judgments in personam are only enforceable in Australia if for a fixed sum, and the *Foreign Judgments Act 1991* (Cth) did not apply to the circumstances or to matrimonial causes.
The Court found no error in the trial judge's approach and dismissed the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
As to ground 9 - date of separation, there is ample evidence to support the trial Judge's finding. The husband was asserting the parties separated immediately upon coming to Australia. Thereafter they bought a house which they occupied together with their five children. They shared the same bedroom for some seven years. In the husband's application for dissolution of marriage in Australia he gave the date of separation as May 1996 (intending it to be September 1996). In our view, her Honour's rejection of the husband's evidence as to the date of separation was clearly open to her and is unassailable. That leaves for discussion grounds 1, 2 and 3. The complaint with ground 1 appears to arise out of her Honour's finding in paragraph 11 in her introductory remarks about the proceedings in Iran that "there was no expert evidence about matrimonial law in Iran." The husband sought to rely upon a document tendered in the Persian language with an English translation that appears at pp 661 to 666 of the Appeal Book. This document appears to be the requirements stated by the Embassy of the Islamic Republic of Iran in Canberra for the registration of a divorce decree. The issue of the relevance of the matrimonial law of Iran to the proceedings before the Court became apparent in respect of the husband's application for a stay of the Australian proceedings. It was the husband's assertion that the parties had married according to the laws of Iran and by their marriage contract they were bound by them. It was his assertion that as the wife was conducting proceedings in Iran and had already obtained a judgment for the payment of monies in Iran under the terms of her marriage contract, she should not be allowed to conduct the proceedings in Australia. In a passage from Henry v Henry (1995) 185 CLR 571, that her Honour set out at paragraph 34 et seq of her judgment, the High Court indicated that whilst it was prima facie vexatious and oppressive to conduct parallel proceedings in different countries in respect of the same subject matter, it did not follow that local proceedings should be stayed. The High Court indicated that in proceedings with respect to property arising out of the breakdown of a marital relationship the proceedings should be seen as part of the dissolution proceedings. In this case the husband had sought and had been granted a decree of dissolution of marriage in Australia. The Court then went on to say that where two courts had jurisdiction over the controversy it would be relevant to consider whether each would recognise the other's orders and decrees. Given that part of the subject matter of the proceedings in Australia concerned itself with real estate situate in Australia, it is difficult to see how an Australian court would have recognised an Iranian decree relating to that property. The general rule with respect to real estate is that the court will not exercise jurisdiction in respect of title to or possession of land situated outside the forum (see British South Africa Co v Companhia de Mocambique [1893] AC 602; Potter v Broken Hill Pty Ltd (1906) 3 CLR 479). At common law a foreign judgment in personam is enforceable in Australia only if it is for a fixed sum. (see Nygh, Conflict of Laws in Australia, 3rd ed at 147). The Foreign Judgments Act 1991 (Cth) has no application as Iran is not a country to which the application of the Act has been extended, and in any event, the Act has no application to matrimonial causes. Thus, an order from an Iranian court declaratory of the ownership of the property in East Doncaster or an order requiring the wife to transfer her interest in the property to the husband would be incapable of being enforced in Australia.