Kornfeld & Wehinger

Case [2023] FedCFamC1F 817

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kornfeld & Wehinger [2023] FedCFamC1F 817

File number(s): MLC 1984 of 2023
Judgment of: WILLIAMS J
Date of judgment: 26 September 2023
Catchwords: FAMILY LAW – JURISDICTION – Forum non conveniens – Appropriate forum where proceedings are on foot in the United Kingdom and Australia –Where the husband sought an application for an anti-suit injunction against the wife with respect to her proceeding in the UK jurisdiction – Where the wife subsequently applied to stay the husbands proceedings on the ground that the Australian forum is clearly inappropriate – Where the wife and children reside in Australia and the husband resides in the United Kingdom – Consideration as to the appropriateness of bifurcation – Determination that Australia is a clearly inappropriate forum – Husbands application dismissed
Legislation:

1           Family Law Act 1975 (Cth) ss 45, 79, 106A

Domicile and Matrimonial Proceedings Act 1973 (UK)

Foreign Judgements (Reciprocal Enforcement) Act 1933 (UK)

Maintenance (Reciprocal Enforcement) Act 1972 (UK) Part I

Matrimonial and Family Proceedings Act 1984 (UK) Part III, ss 12, 13, 17

Matrimonial Causes Act 1973 (UK) ss 24B, 25, 25B

Reciprocal Enforcement of Foreign Judgements Order (Australia) Act 1994 (UK)
Cases cited:

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

Henry v Henry (1996) FLC 92-685

Kent & Kent [2017] FamCAFC 157

Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197

Voth & Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

Yeo & Huy (No 2) [2012] FamCA 541
Division: Division 1 First Instance
Number of paragraphs: 132
Date of hearing: 1 September 2023
Place: Melbourne
Counsel for the Applicant: Mr Carne
Solicitor for the Applicant: Davison Family Lawyers
Counsel for the Respondent: Ms Bowen
Solicitor for the Respondent: Clancy & Triado
Table of Corrections
26 September 2023 In paragraph 61, the highlighted symbol “XX” has been removed.

ORDERS

MLC 1984 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR KORNFELD

Applicant
AND:

MS WEHINGER

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

26 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The husband’s application for divorce and financial orders under the Family Law Act 1975 (Cth) be permanently stayed.

2.The husband’s application for parenting orders be listed for further mention before a Judicial Registrar on a date to be advised.

3.Within twenty-one (21) days of the date of these Orders the wife make, file and serve an Amended Response setting out her parenting orders sought on both an interim and final basis.

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…

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AGLC
Kornfeld & Wehinger [2023] FedCFamC1F 817
Case
[2023] FedCFamC1F 817
Decision Date

CaseChat Overview and Summary

The case of Mr Kornfeld versus Ms Wehinger involved the husband seeking an application for anti-suit injunction against the wife in relation to her proceedings in the UK jurisdiction. The wife subsequently applied to stay the husband's proceedings on the ground that the Australian forum is clearly inappropriate. The husband was born in the UK and is a British citizen and permanent resident of Australia, while the wife was also born in the UK, is an Australian and British dual citizen. There are two children of the relationship who reside in Australia with their mother. The husband resides in the United Kingdom. The legal issue that the court was required to decide was whether Australia is a clearly inappropriate forum for the proceedings or whether it is appropriate for the proceedings to be conducted in Australia.

The court determined that Australia is a clearly inappropriate forum for the proceedings. The court noted that the wife and children reside in Australia and the husband resides in the United Kingdom. The court also considered the appropriateness of bifurcation, which refers to the division of proceedings into separate parts, in this case, the divorce and property matters being conducted in the UK and the parenting proceedings being conducted in Australia. The court found that bifurcation was not appropriate in this case. The court concluded that the majority of the assets of the marriage are located in the UK, including two properties, one of which is the former matrimonial home, pension entitlements of the husband and the husband's interest as a beneficiary in the M Trust. The court also noted that the wife may face significant hurdles if the financial proceedings were conducted in Australia, particularly in relation to obtaining discovery and disclosure of financial information pertinent to the husband's superannuation fund and family trust. The court further noted that if the financial and divorce proceedings were conducted in the UK where the husband lives, he would be relieved of the financial burden of having to potentially travel to Australia to conduct the financial proceedings.

The husband's application for divorce and financial orders under the Family Law Act 1975 (Cth) was permanently stayed. The husband's application for parenting orders was listed for further mention before a Judicial Registrar on a date to be advised. The wife was required to make, file and serve an Amended Response setting out her parenting orders sought on both an interim and final basis within twenty-one (21) days of the date of these Orders.

Orders

Orders of the court

MLC 1984 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR KORNFELD

Applicant

AND:

MS WEHINGER

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

26 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. The husband’s application for divorce and financial orders under the Family Law Act 1975 (Cth) be permanently stayed.

2. The husband’s application for parenting orders be listed for further mention before a Judicial Registrar on a date to be advised.

3. Within twenty-one (21) days of the date of these Orders the wife make, file and serve an Amended Response setting out her parenting orders sought on both an interim and final basis.

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.

Background

Background to the litigation

The dispute to be determined by me is therefore in relation to competing fora for financial matters and divorce. BACKGROUND The husband was born in the UK and is 46 years old. He is a British citizen and permanent resident of Australia. The wife was also born in the UK, although she grew up in Australia and is 47 years old. She is an Australian and British dual citizen. There are two children of the relationship, X, aged 11 years and Y, aged 9 years (“the children”). The parties met in City O during 2007 and commenced cohabitation in Melbourne in 2008, prior to marrying in 2010. The parties lived for periods of their relationship in both Australia and the UK. At the commencement of cohabitation, the husband owned a property at C Street, Suburb D, City O, (“the Suburb D property”) and at E Street, Suburb F, City O, (“the Suburb F property”). During the marriage, the husband sold the Suburb F property and the parties purchased G Street, Suburb H, City O (“the Suburb H property”) in the husband’s name, with the intention of it being the matrimonial home. Shortly after the parties first child was born in 2012, they moved from Melbourne, Australia to live in the UK. The wife describes this move as a “three-year trial” to ascertain if she wished to remain living in the UK. In 2016 the wife and children returned to live in Melbourne whilst the husband elected to remain in the UK. In the ensuing four years, the parties engaged in a long-distance relationship before they separated in May 2020. Subsequent to separation, the wife and children continued to live in Melbourne and the husband remained in City O. The parties engaged in dispute resolution in Melbourne on 15 August 2022 and 1 February 2023. The wife was represented by Melbourne solicitors. The parties have not engaged in any form of mediation or settlement negotiations in the UK. On 1 February 2023, the wife filed an Application for Divorce in the Family Court in Town B, United Kingdom, which indicated her intention to apply for a full range of financial orders. The husband contends the UK proceedings were filed with no warning and no pre-action or protocol letters, which is denied by the wife. On 15 February 2023, the wife’s UK solicitor served the husband with a copy of the wife’s Application for Divorce to the UK Court, which was accompanied by a letter advising the husband the wife wished to deal with the financial consequences of the divorce in the United Kingdom and she hoped a settlement could be achieved through mediation following an exchange of financial information. The letter sought confirmation from the husband he would be ready to exchange financial information by 15 March 2023. There was no reply from the husband. On 1 March 2023, the husband filed a Response to the wife’s Application for Divorce and financial relief in the Family Court in Town B, United Kingdom. In his Response, the husband agreed the UK Court had jurisdiction to grant a divorce, but did not consent to it and stated he had commenced proceedings in Australia for a division of matrimonial property and parenting orders. On the same day, he filed an Initiating Application for parenting and property orders in this Court. In his Initiating Application, the husband sought an order restraining the wife from commencing, prosecuting, or progressing any suit, claim or proceeding to divide their property in any jurisdiction other than Australia.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I can infer from the position of each party that they able to participate in proceedings in either jurisdiction and ironically, do not seek proceedings to take place in the jurisdiction where they live.Discussion and conclusion It is common ground between the parties that both the UK and Australia have jurisdiction in relation to the divorce and property applications, and the parenting proceedings should take place in Australia. The wife contends that even if the parenting matters are dealt with in this jurisdiction, there is no reason why the divorce and property matters should not be separated and conducted in the UK. The husband contends all three sets of proceedings should be conducted in Australia, notwithstanding his concession that additional proceedings to affect an equalisation of his pension entitlements accrued during the marriage may have to be commenced in the UK. Both parties agree the majority of the assets of the marriage are located in the UK which include two properties, one of which is the former matrimonial home, pension entitlements of the husband and the husband’s interest as a beneficiary in the M Trust. It is axiomatic a number of valuations will be required to be carried out in the UK and indeed in his application in this jurisdiction, the husband seeks an order that an expert be appointed in the UK to jointly value the parties’ pension interests. The issue of the husband’s pension interests in his family company superannuation fund, which he estimates are worth approximately £660,000 may well be contentious, particularly as the husband states in his affidavit filed 1 March 2023, other family members, namely his mother, has an interest in his family business superannuation fund, Superannuation Fund 1. The wife will undoubtably require discovery and disclosure of Superannuation Fund 1 and documentation relating to the husband’s interest in his family trust including particulars of the extensive litigation he refers to in his affidavit. If the financial proceedings were conducted in Australia, the wife may face significant hurdles in the event she sought discovery of financial information pertinent to both the superannuation fund and the husband’s family trust, although I acknowledge the husbands position is that he will comply with his disclosure obligations. Accepting the wife’s evidence which was essentially unchallenged, her financial position in Australia appears to be far more straightforward than the husband’s and I consider the challenges facing the wife in relation to potential discovery and disclosure may well be more substantial than those faced by the husband in relation to the wife’s Australian assets. In his affidavit filed in March 2023, the husband deposes to significant expense to travel to Australia and his potential difficulty in meeting that expense in the future. If the financial and divorce proceedings are conducted in UK where the husband lives, he will be relieved of the financial burden of having to potentially travel to Australia to conduct the financial proceedings.

Ratio Decidendi

Legal Principle Established

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