KOELL & MADER

[2014] FCCA 2866

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOELL & MADER [2014] FCCA 2866

Catchwords:
FAMILY LAW – Divorce – defended divorce – whether Australia is a forum non conveniens – appropriate forum – where applicant commenced proceedings in Australia – where respondent commenced proceedings in the United Kingdom.

Legislation:

Family Law Act 1975 (Cth), s.48

Cases cited:
Henry v Henry (1996) 185 CLR 571; 20 Fam LR 171; FLC 92-685
Voth v Manildra Flour Mills (1990) 171 CLR 538

Applicant: MR KOELL

Respondent: MS MADER

File Number: SYC 3704 of 2014

Judgment of: Judge Scarlett

Hearing date: 1 December 2014

Date of Last Submission: 1 December 2014

Delivered at: Sydney

Delivered on:  10 December 2014

REPRESENTATION

Counsel for the Applicant: Ms Cohen

Respondent: In person

ORDERS

1. The Court has jurisdiction to make a Divorce Order.

2. Unless either party provides evidence by way of affidavit sufficient to satisfy the Court that a Divorce Order should not be made within seven (7) days, the Court will hear the Application for Divorce filed on 18 June 2014.

IT IS NOTED that publication of this judgment under the pseudonym Koell & Mader is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3704 of 2014

MR KOELL

Applicant

And

MS MADER

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for divorce brought by the Husband. In his Application, he states, incorrectly, that the parties were married on [date omitted] 2004 and that they separated on 12^th January 2012. There are no children of the marriage.

2. On 29^th July 2014 the wife filed a Response to Divorce. In that Response, prepared by her solicitor at the time, the wife gives the following reasons why she claims that the Application should be dismissed:

   A. The Respondent is a citizen of the United Kingdom;

   B. The parties married in the United Kingdom and lived most of their married life in that country;

   C. The only assets of the parties relationship are located in the United Kingdom and in particular in [omitted], the city in which the parties married;

   D. The Husband is not a resident of Australia but a resident of Singapore;

   E. An Order was made by the Principal Registry of the Family Division of the High Court of Justice of England under file number FD12D05900 that the Respondent to this Divorce Application be given liberty to proceed with a petition for a decree nisi (i.e. Divorce) on an undefended basis. In particular His Honour District Judge Simmonds made an Order to that extent on 30 September 2013.

   F.  In particular an Application for a decree nisi was filed by the Respondent to this matter in the United Kingdom which was personally served upon the Applicant on or about 31 December 2012. That Application let (sic) to his Honour District Judge Simmonds Order of 30 September 2013 and consequentially granted me leave to proceed with the Divorce Application thereafter.

   G. The Federal Circuit Court of Australia at Sydney thus is a forum non conveniens and in particular, bearing in mind proceedings were commenced last year of the same nature in the United Kingdom (as aforesaid) the Federal Circuit Court of Australia is, with respect, a clearly inappropriate forum. As a consequence the Applicants Application for divorce should be dismissed, or alternatively stayed pending the completion of the Respondents Application before the Family Law Division of the United Kingdom’s High Court of Justice.

3. The Wife filed an affidavit sworn or affirmed on 5^th August 2014 in which she deposed that she had discovered that the Husband was having an affair with a work colleague and commenced divorce proceedings in the United Kingdom in November 2012. The Husband was served on 31^st December 2012.

4. The Wife further deposed that the proceedings in the United Kingdom were challenged on jurisdiction on 3^rd July 2013, but on 30^th September 2013 she was given liberty to proceed with a petition for a Decree Nisi on 30^th September 2013. The divorce proceedings in the United Kingdom are based on the ground of adultery. The Wife stated that she was “subsequently in the process of filing a financial order in the UK, so that Mr Koell will be forced to take his share of the marital debt and I am retaining the services of a Singapore Law firm.[1]

   [1] Affidavit of Ms Mader 5.8.2013

5. Again, the Wife deposed that the Husband is now living in Singapore. 

Procedural History

1. The Husband’s Application was returnable before the Court on 7^th August 2014. As a Response had been filed, the Registrar transferred the proceedings to a Judge, and on 3^rd November 2014 the Application was mentioned before me.

2. Ms Cohen of Counsel appeared for and with the Husband. The Wife was not represented and attended by telephone from Brisbane, where she currently lives. The Wife told the Court that her solicitors were no longer instructed. As there was some doubt about the progress of the proceedings in the United Kingdom, I directed both parties to file and serve an affidavit setting evidence as to the progress and status of the Application for Divorce in the United Kingdom and I directed the solicitors formerly acting for the wife to file and serve a Notice of Ceasing to Act. The Application was adjourned to 1^st December 2014 for further mention so that I could hear submissions as to jurisdiction.

3. Each party filed an affidavit.

4. The Wife deposed that her Application was before the Court in the United Kingdom on 20^th May 2014 as the Husband was “trying to have the case removed from the UK again”.[2] Neither the Husband nor the Wife attended.

   [2] Affidavit of Ms Mader 28.11.2014 at [6]

5. The Wife stated that she was advised that the case was still open and she forwarded the decree nisi papers to the Court at the beginning of August 2014. She received a further summons to attend court on 29^th September 2014. She said that neither the Husband nor his representatives attended Court. She had been given leave to attend Court by telephone. She does not state whether she did attend by telephone or not.

6. The Wife annexed to her affidavit a letter dated 21^st November 2014 from the Divorce Office in the United Kingdom saying:

   I can confirm you have an open Divorce with the Central Family Courts for FD12D05900 in the name of [Ms Mader & Mr Koell].

   I can confirm you have applied for Decree Nisi, which was received at the court on the 26^th August 2014. We also received an email version on the 6^th November 2014.

   Please note I will try to fast track your Decree Nisi for the delays you had with the court.

7. The Husband set out in his affidavit of 28^th November 2014 that he had telephoned the Court in the United Kingdom on numerous occasions and had emailed the Court trying to obtain a definitive statement about the progress of the Wife’s Application for a Decree Nisi.

8. The Husband and his Counsel attended Court on 1^st December 2014. The Wife attended by telephone. Ms Cohen, for the Husband, submitted that the Wife had had her application for a divorce before the Court in the United Kingdom since 2012 but had not prosecuted the application. She further submitted that the Wife was trying to thwart the Husband’s application for a divorce in Australia.

9. The Wife denied that allegation, saying that she was still in Australia because she was suffering from depression due to the Husband’s cruel behaviour towards her. She said that she had no wish to remain married to a man who had treated her so badly.

Whether a Divorce Order should be made in Australia or in the United Kingdom

1. The Wife claims in her Response that Australia is a forum non conveniens, an inappropriate forum, and that the proceedings in Australia should be dismissed or stayed.

2. The Husband mentioned in his affidavit of 28^th November 2014 that the Wife’s application in the United Kingdom would be null and void because the Wife is a resident of Australia. However, he does not dispute that the Wife retains her citizenship of the United Kingdom, and the Court in the United Kingdom has allowed her Application to proceed.

3. In the absence of evidence that the Wife cannot prosecute her application for a divorce in the United Kingdom, I am satisfied that the Family Court at Central Family Court in London has jurisdiction to hear the Wife’s application.

4. The Wife’s reasons for her claim that Australia is an inappropriate forum, other than the ongoing proceedings in London, are:

   a)she is a citizen of the United Kingdom;

   b)the parties were married in the United Kingdom and lived most of their married life in that country;

   c)most of the parties’ assets are located in the United Kingdom; and

   d)the Husband is no longer a resident of Australia but a resident of Singapore.

5. The Husband’s LinkedIn page, annexed to the Wife’s affidavit of 28^th November, confirms that he is currently located in Singapore and states:

   Long term visit Pass – Singapore. Australian Citizen. Available for fly in and fly out.

6. Those matters, taken at their highest, do not mean that the Husband cannot apply for a divorce in Australia. He remains an Australian citizen and, as such, can apply for a divorce in this country.

7. The question of whether Australia is a clearly inappropriate forum for family law proceedings was considered by the High Court in Henry v Henry[3], where the High Court applied its earlier decision of Voth v Manildra Flour Mills Pty Ltd[4].

   [3] (1996) 185 CLR 571; 20 Fam LR 171; FLC 92-685

   [4] (1990) 171 CLR 538

8. The High Court held that the test for determining whether a stay of matrimonial proceedings should be granted is whether the Australian court is a clearly inappropriate forum. This requires the Court to determine whether the continuation of proceedings in the Australian court would be oppressive or vexatious.

9. To apply the test it is relevant to consider whether jurisdiction exists in the courts of another forum to deal with the same matter which is before the Australian court. The stage which proceedings have reached in the other forum is a relevant consideration is a relevant consideration in deciding whether to stay the Australian proceedings.

10. Whether Australia is a clearly inappropriate forum will depend on the general circumstances of the case, taking into account the true nature and full extent of the issues involved. These include whether each forum recognises the orders and decrees of the other, which forum can provide more effectively for the complete resolution of the controversy; the order, stage and costs of the proceedings; the connection of the parties and the marriage to each jurisdiction and the issues upon which relief might depend.[5]

    [5] per Dawson, Gaudron, McHugh and Gummow JJ at 586-593

Conclusions

1. The parties clearly have a connection with the United Kingdom, as they were married there and the wife is a citizen of that country. They spent much of their married life in that country and still retain property there, although there are no proceedings on foot in respect of that property.

2. The Wife commenced proceedings for a divorce, and a divorce alone, in November 2012, but the application remains unresolved more than two years later.

3. The Husband is an Australian citizen and the wife resides in Australia. There are no children. It is of no significance that the Husband may be currently working in Singapore. He still remains an Australian citizen.

4. The Husband commenced his own Application for Divorce in this Court on 18^th June 2014 and the Application was returnable on 7^th August 2014. The Application could have been decided on that day, had not the Wife filed her Response.

5. What the Wife has failed to do is show evidence that continuation of the proceedings in this Court would be oppressive or vexatious. She has not shown that it would be in any way detrimental to her to be divorced under the law of Australia. Indeed, she told the Court on 1^st December 2014 that she had no wish to remain married to the husband.

6. There are no other proceedings before the Court in the United Kingdom that would be adversely affected by the parties being divorced in Australia. There is no evidence that a Divorce Order made by this Court would not be recognised in the United Kingdom if the Wife were to choose to return to live in that country.

7. I am not satisfied that Australia is a clearly inappropriate forum. This Court has jurisdiction to make a divorce Order and I consider that it should exercise that jurisdiction.

8. It appears clear that the marriage between the parties has broken down irretrievably and that they have separated and lived apart for a continuous period of not less than 12 months immediately preceding the date of filing the Application, namely 18^th June 2014. Thus, a ground for a divorce order under s.48 of the Family Law Act appears to have been established.

9. Unless either of the parties produces cogent evidence to the Court within seven days that a divorce order should not be made, I intend to hear the Application for a divorce order dissolving the marriage between the parties.     

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  10 December 2014