Kima and Kima

[2017] FamCA 401

FAMILY COURT OF AUSTRALIA

KIMA & KIMA [2017] FamCA 401

FAMILY LAW – PRACTICE AND PROCEDURE – FORUM

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Henry v Henry (1996) 185 CLR 571
Oceanic Sun Line Special Shipping Co. Inc.v Fay (1988) 165 CLR 197
Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460
Gilmore v Gilmore (1993) 110 FLR 311

Family Law Act 1975 (Cth)

APPLICANT: Mr Kima

RESPONDENT: Ms Kima

FILE NUMBER: CAC743 of 2013

DATE DELIVERED: 5 June 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 16 February 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT: Self-represented

Orders

1. I dismiss the Wife’s application dated 10 January 2017.

2. I declare that Australia is not a clearly inappropriate forum for the purpose of proceedings in relation to the property interests of the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC743/2013

Mr Kima

Applicant

And

Ms Kima

Respondent

REASONS FOR JUDGMENT

History of Proceedings

1. In this case it is contended that each of the parties holds interests in real property in India as well as Australia.  By her application of 10 January 2017 the wife raises the question of whether proceedings should be conducted in India and asserts that Australia is a clearly inappropriate forum.  By way of remedy the wife seeks a partial stay of proceedings, such that the component of the proceedings that relates to property in India that is not jointly owned by the parties, or in the alternative, was acquired by the wife’s parents in India, be stayed.  The wife, accordingly, does not seek a complete stay of the proceedings, nor of a stay of proceedings in relation to property jointly owned by the parties in India.

2. The relevant procedural history is detailed below:

   a)The husband filed an Initiating Application on 29 October 2015, seeking a 55 / 45 division of the property pool in his favour. In his supporting affidavit the Husband alleged that the Wife owned further properties in India.

   b)In her responding affidavit dated 29 January 2016 the Wife acknowledged joint-ownership with the Husband of two properties in India, but did not refer to any further properties solely-owned.

   c)The Wife filed an Application on 2 June 2016 seeking spousal maintenance, a release of equity in the matrimonial home, the possession at her own cost of a vehicle and some furniture, and financial information relevant to the properties in Suburb E and Brisbane, for the purpose of complying with tax statements.

   d)The Husband filed a Response to the Wife’s 2 June 2016 application on 7 June 2016. The Husband sought dismissal of the Wife’s application, and further orders that an expert valuer be appointed to value the four properties in India described below. In support of his Response, the Husband’s affidavit of 7 June 2016 contained information regarding four Indian properties, one of which had been disclosed by the Wife, the other three which had not been previously disclosed, alleged to be owned by the Wife, as detailed below:

   i)Property F (previously disclosed by the Wife)

   ii)Property G, Survey no. …

   iii)Property H, Survey no. …

   iv)Property I, Survey no. …

   e)The Wife filed an Application on 7 July 2016, seeking spousal maintenance and certain financial records pertaining to the Suburb E and Brisbane properties. In addition, the Wife sought details as to how the husband had obtained the information in his affidavit dated 7 June 2016 relating to the Wife’s alleged Indian property holdings. In her affidavit supporting this application, the Wife stated that she was previously unaware of any further properties in India; however the Wife’s mother had informed her of properties purchased by the Wife’s parents in the Wife’s name, without the Wife’s knowledge. In support of this the Wife refers to her mother’s affidavit filed 7 June 2016.

   f)The Wife’s mother’s affidavit dated 7 June 2016 stated that she, the mother, had purchased property in the Wife’s name, without the Wife’s knowledge. This affidavit also stated that the Wife’s late father had purchased property in the Wife’s name, without the Wife’s knowledge. These properties were:

   i)Property G

   ii)480 sq yds of house site at Property H

   iii)400 sq yds at Property I

   The descriptions of these properties as given by the Wife’s mother are consistent with the descriptions given by the Husband in his 7 July 2016 affidavit.

   g)The Husband filed an application on 30 August 2016 seeking further time to provide evidence.

   h)On 16 September 2016 the court made orders for the sale of one of the parties’ Australian properties in Brisbane;

   i)The Husband filed a minute of orders sought on 9 December 2016, seeking further disclosure from the Wife in relation to her Indian properties and certain bank transactions alleged to have occurred.

   j)In the Wife’s affidavit of 12 December 2016 the Wife questioned the enforceability of any Australian judgement in India, but did not do so in the context of a stay application. Rather, the Wife was still opposing the inclusion of her solely owned Indian properties in any Australian proceedings, and introduced the question of enforceability as a reason why these properties should not be included.

   k)The Wife filed an Application on 10 January 2017. This application, and the supporting affidavit, squarely raised the issue of a stay application on the basis of forum non conveniens. The Wife sought a stay of part only of the Australian proceedings in relation to the Indian properties that were not jointly owned by her and the Husband, and a stay in relation to the Indian properties that had been acquired in her name by her parents. The stay application focused on two issues, being:

   i)That the Husband would lack standing before the Indian courts, and would not be able to enforce any Australian judgement; and

   ii)That should the Family Court make an in personam order directing the Wife to do certain acts in relation to property in India the Wife would not be able to comply, as such an order would require the contravention of Indian laws, namely the anti-dowry laws. 

The law relating to forum

1. The applicable test for whether this court should deal with the matter is whether this court is a “clearly inappropriate forum”[1] for the hearing of the dispute.  The question is directed to whether the proceedings here are vexatious or oppressive[2].  Oppressive means “seriously and unfairly burdensome, prejudicial or damaging” and vexatious means “productive of serious and unjustified trouble and harassment.”[3] These questions are directed to the avoidance of injustice between the parties[4] and involve a “subjective balancing process” in the “circumstances of a particular case”[5] requiring, as the circumstances of the case determine, consideration of a number of different factors, directed to whether Australia is a clearly inappropriate forum.  Voth and Henry have identified several potential factors for consideration:

   a)In the context of the understanding that the “jurisdiction to grant a stay or dismiss the action is to be exercised with ‘great care’ or ‘extreme caution;’”[6] one consideration relates to the right of a plaintiff who has regularly invoked the jurisdiction of the court to have his or her case heard,[7] noting the “obligation on the domestic courts of this country to exercise jurisdiction which is conferred upon them…(unless)… it is established that the forum is clearly inappropriate.”[8]  Care must be taken not to give this matter “undue emphasis”[9] such that it obscures the inquiry as to whether Australia is a clearly inappropriate forum;

   b)The consideration of whether there are parallel proceedings on foot in the other forum, and the degree to which they involve the same subject matter, legal issues and parties[10]; 

   c)Whether “it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities (including the extent of the liabilities) of the parties.”[11] This does not normally involve evaluation of “the justice or relative merits of the substantive laws of the available forums”; ^[12]

   d)The availability of relief in the foreign forum,[13] although not the fact of the “selected forum’s administrative problems, e.g. congested lists and lack of administrative resources, these being matters of a kind to which our courts do not usually have regard”;[14]

   e)The availability of relief in the foreign jurisdiction. An absence of relief in the foreign jurisdiction would, in general terms, make it a difficult task to establish that Australia is a clearly inappropriate forum; and

   f)An examination of “connecting factors” and “legitimate personal or juridical advantage.”[15] This includes consideration of matters such as “convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction…and the places where the parties reside or respectively carry on business.”[16] 

   [1] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565.

   [2] Henry v Henry (1996) 185 CLR 571 at 588 per Dawson, Gaudron, McHugh and Gummow JJ in critiquing Gilmore v Gilmore (1993) 110 FLR 311.

   [3] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 555 adopting Deane J in Oceanic Sun Line Special Shipping Co. Inc. v Fay (1988) 165 CLR 197.

   [4] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554.

   [5] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 556 adopting Deane J in Oceanic Sun.

   [6] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554.

   [7] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554.

   [8] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 559.

   [9] Henry v Henry (1996) 185 CLR 571 at 589.

   [10] Henry v Henry (1996) 185 CLR 571 at 590.

   [11] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 556 adopting Gaudron J from Oceanic Sun at 266.

   [12] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 560.

   [13] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558.

   [14] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 561 adopting Oceanic Sun  at 254.

   [15] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565 adopting Lord Goff in Spiliada.

   [16] Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460

   at 478.

2. Consideration of legitimate personal or juridical advantage requires that “regard must be had to the interests of all the parties and the ends of justice”[17].  The lens through which these matters were to be considered, in the context of the differing English test for forum, was the consideration of “where the case may be tried ‘suitably for the interests of all the parties and for the ends of justice.’”[18]

   [17] Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 483.

   [18] Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 482.

3. In considering examples of differing discovery systems, scales of damages and limitation periods, Lord Goff’s focus was not on the advantage the plaintiff may gain or lose (recognising that an “advantage to the plaintiff will ordinarily give rise to a comparable disadvantage to the defendant”[19]) but whether the ends of justice would be defeated by the differing regime.

   [19] Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 482.

4. Given the common element of both the Australian and English approaches, being the avoidance of injustice between the parties, a similar understanding of personal or juridical advantage is applicable here.

5. None of these matters are necessarily determinative of the issue, nor even necessarily have a “real bearing on the matter”.[20]  They do not constitute the test for forum, but are potential considerations, dependent upon the circumstances of the particular case.  Each consideration must be directed toward the question of whether Australia is a clearly inappropriate forum, as to litigate here would cause injustice to one or more of the parties.

   [20] Henry v Henry (1996) 185 CLR 571 at 589.

This case

1. The primary question then is directed to what factors, in this case, could lead to a conclusion that this is a clearly inappropriate forum.

2. The wife’s approach to have the proceedings only partly restrained appeared to acknowledge that Australia is not a clearly inappropriate forum for the resolution of part of the dispute between the parties.  This extended to at least a number of the Indian properties, being those jointly owned by the wife and the husband.  That is, she did not regard Australia as a clearly inappropriate forum even for the resolution of the dispute touching upon properties located in India.

3. What were resisted were the proceedings dealing in any sense with those properties in her sole name in India.  On her case, litigation would continue in Australia in relation to some properties and, although unclear, allow for either the conduct of parallel proceedings in India, or the non-consideration of those particular properties in India.  That is, an acceptance of the wife’s position leaves incomplete proceedings in Australia, conducted without reference to the legal and equitable interests held by the parties in all property, with either parallel proceedings or a gap in the proceedings.

4. In contrast, proceedings in Australia would be required to take into account the characteristics of the property held in India and the limitations on the rights of the parties in relation to that property.  That is, the court would be required to take into account the scope of the legal and equitable rights in the property in India.

5. While raising the issue of enforceability of orders in India, this was not an objection taken in relation to jointly owned properties.  It is also unclear that in personam orders would be ineffective in circumstances where the parties are resident in Australia, hold property in Australia, have commenced proceedings in Australia and have conducted those proceedings for an extended period. The Husband stated that no issue of enforceability would arise, as he was not seeking orders in relation to any property in India, merely that they be taken into account.

6. The wife’s assertion that the conduct of the proceedings exposed the husband to criminal liability in India was not supported by evidence.

7. As to the wife’s proposition that she may be unable to comply with the outcome of proceedings in Australia because of the operation of the anti-dowry laws, if the matter is conducted in Australia the court will not be able to make orders that would cause the wife to breach the law in India in relation to her property.

8. The wife has failed to demonstrate that Australia is a clearly inappropriate forum.  Her application to restrain proceedings is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 June 2017.

Associate: 

Date:  5 June 2017