Lundquist & Lundquist
[2024] FedCFamC1A 219
•20 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Lundquist & Lundquist [2024] FedCFamC1A 219
Appeal from: Lundquist & Lundquist(No 2) [2024] FedCFamC2F 1002 Appeal number(s): NAA 195 of 2024 File number(s): SYC 7577 of 2022 Judgment of: RIETHMULLER J Date of judgment: 20 November 2024 Catchwords: FAMILY LAW – APPEAL – Appeal from Divorce Order – Where the wife argues Australia is a clearly inappropriate forum – Property settlement hearing completed in Australia with judgment reserved – Where the wife seeks to delay the divorce until property settlement orders are made – Where wife is pursuing divorce proceedings in the UK – Where wife claims there are tax implications in the UK but provides no evidence – No discretion to refuse divorce application – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) s 48
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 26
Cases cited: Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90
CDJ v VAJ (1998) 197 CLR 172; [1988] HCA 76
Dobson & Londen (2005) FLC 93-225; [2005] FamCA 479
Falk and Falk (1977) FLC 90-247; [1977] FamCA 46
Gronow & Gronow (1979) 144 CLR 513; [1976] HCA 63
Henry v Henry (1996) 185 CLR 571; [1996] HCA 51
House v The King (1936) 55 CLR 499; [1936] HCA 40
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
RAF & MMF [2005] FamCA 497
Number of paragraphs: 40 Date of hearing: 31 October 2024 Place: Parramatta The Appellant: Litigant in person Counsel for the Respondent: Ms McMahon Solicitor for the Respondent: Cominos Family Lawyers ORDERS
NAA 195 of 2024
SYC 7577 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS LUNDQUIST
Appellant
AND: MR LUNDQUIST
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
20 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Appeal NAA 195 of 2024 be dismissed.
2.The appellant’s Application in an Appeal filed 30 October 2024 be dismissed.
3.The matter be relisted on 6 December 2024 at 10.00am for arguments as to costs.
4.The respondent file and serve any affidavits on which he intends to reply on with respect to the costs argument within seven days of the date of these orders and the appellant is to file and serve any affidavits she intends to reply on with respect to the costs argument within fourteen days of the date of these orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lundquist & Lundquist has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
The appellant appeals against a Divorce Order made in late June 2024 on the application of the respondent.
There is no dispute that the parties were born in Australia and lawfully married in Australia in 1984. They moved to the United Kingdom in 1987 before returning to Australia in 2020. The appellant says that she is now domiciled in the United Kingdom.
The respondent first applied for a divorce order in late November 2022 (around one month after having applied for property settlement orders). The appellant disputed the date of separation, alleging that they only separated on 27 October 2022. The respondent withdrew the first divorce application and made the current divorce application in early November 2023. In late October 2023 the appellant filed an application for divorce in the United Kingdom, however, the divorce application was not issued by HM Courts and Tribunal Services until mid-November 2023 (see Annexure ‘3’ of the respondent’s affidavit filed 6 June 2024). Despite this, the appellant argued before the primary judge that there was a chance of the parties reconciling, which was addressed by the primary judge who said:
21 Despite the period of separation, the husband's re-partnering, the husband commencing property proceedings and two Applications for divorce, the wife contends, in her Response, that there is a chance of reconciliation. The husband denies that this is the case. I will find, and I do find, though it is relevant for the Application for Divorce later, that there is no prospect of reconciliation, and I accept the husband's evidence in respect of that. I find the wife's Response, which nominates a chance of reconciliation, is inconsistent with her evidence and inconsistent with the wife's own Application for Divorce in the United Kingdom.
In Henry v Henry (1996) 185 CLR 571, the High Court confirmed that the test for determining whether a stay should be granted to divorce proceedings is whether Australia is a “clearly inappropriate forum”. This principle applies when there are competing divorce proceedings commenced in different jurisdictions.
The primary judge found that Australia was an appropriate forum and that the respondent’s divorce application was not an abuse of process. Her Honour determined the application and granted a divorce order.
The Notice of Appeal sets out eight grounds of appeal that were drawn by a solicitor before the reasons for judgment of the primary judge were published. The appellant was unrepresented before the primary judge and is unrepresented on the appeal. Her Summary of Argument filed on 2 October 2024 (an email of just over two pages) sets out rather cryptic arguments but makes clear that she pursues each ground in the Notice of Appeal.
The respondent’s Summary of Argument filed 22 October 2024 (signed by counsel) was entirely unhelpful in either identifying the complaints of the unrepresented appellant or in answering them, simply stating:
1.The summary of argument filed by the Appellant on 2 October 2024 bears no nexus to the grounds of appeal filed 25 July 2024.
2. The Respondent says no error made in the Court below.
In considering appeals with respect to discretionary determinations and issues of weight the principles are well established. In House v The King (1936) 55 CLR 499 at 504–505 the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Similarly, in Norbis v Norbis (1986) 161 CLR 513 at 540 per Brennan J, it was stated:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
As was stated in Gronow & Gronow (1979) 144 CLR 513 at 520 “an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight”. In CDJ v VAJ (1998) 197 CLR 172 at 230–231 Kirby J expressed the test as requiring an appellant to show that the primary judge was “plainly wrong”.
APPLICATION IN THE APPEAL
The appellant filed an Application in an Appeal on 30 October 2024, the day before the hearing of the appeal. The appellant did not set out specific orders sought in the application, but included brief arguments. It became clear in submissions that she was seeking orders adjourning the hearing of the appeal pending the determination of the parties’ property settlement proceedings which had been heard in early October 2024 by another judge, leave to file further evidence concerning capital gains tax changes that she expects to flow from the forthcoming government budget in the United Kingdom, orders for disclosure that may be relevant to the property settlement proceedings, and costs. The Application in an Appeal was supported by an affidavit sworn on 21 April 2024 and an affidavit sworn on 30 October 2024.
There is no admissible evidence as to the specific orders proposed by the parties in the property settlement proceedings nor the potential effect of the tax laws and regulations in the United Kingdom if a divorce is granted prior to the property settlement orders. The appellant attaches an email from an accountant in England pointing out that with a recent change of government the tax laws are likely to change, however, there is no expert evidence as to relevant tax issues nor references to any relevant legislation or regulations. There is no explanation for why an expert report was not obtained well before the property hearing addressing the taxation issues.
A litigant is ordinarily entitled to the benefits of a judgment obtained in their favour. Appeals ought to be dealt with promptly. The appellant says she is awaiting a report regarding the tax implications that she has not actually commissioned. Even if there was evidence that the timing of the divorce would have financial consequences for the parties, I am not persuaded that such ‘financial consequences’ would be a reason to delay a person’s entitlement to a divorce as almost all divorces have financial consequences for spouses.
I am not persuaded that the appeal should be adjourned. The other orders sought in the appellant’s Application in an Appeal are not relevant to the appeal but concern discovery in the property settlement proceedings and should have been addressed to the judge hearing that application prior to the property settlement trial.
The appellant’s Application in an Appeal must be dismissed.
GROUNDS OF APPEAL
Procedural Fairness arguments
The appellant set out a general ground relating to procedural fairness and then a number of specific grounds relating to a failed adjournment application. It is convenient to deal with the general ground first.
Ground 8
8. The Primary Judge failed to afford the Respondent procedural fairness or in the alternative failed to advise the Respondent of her procedural rights.
There are no particulars and no argument in her Summary of Argument addressed this ground beyond what was set out in Grounds 2 to 4. She had notice of the hearing before the primary judge as a result of orders and directions made by Judge M Neville for the filing of material at a directions hearing where the appellant appeared. She filed material and was given a reasonable opportunity to make submissions before the primary judge.
In oral submissions she raised an argument that she had not been served with the divorce application. The primary judge dealt with this issue at [37] to [38] finding:
37 On 4 December 2023, [a commercial agent from] [Service B] signed an affidavit of attempted service by hand, and they outlined the attempts that were made to serve the wife. The husband then filed an Application in a Proceeding to dispense with service, and that matter was listed before the Court for the scheduled divorce hearing date on 21 December 2023.
38 The wife filed documents on 20 December 2023, providing a copy of the Response to Divorce to the husband's lawyers on the date of hearing on 21 December 2023. As a consequence, I am satisfied that the wife was served with this Application.
The appellant also argued that the hearing before the primary judge was listed for interlocutory orders concerning property settlement issues, saying “I – to – because to me, this wasn’t a divorce hearing. This was under property settlement, where it was supposed to ..... seeking to leave to get subpoenas approved” (Transcript 27 June 2024, p.6 lines 11-13). However, Judge M Neville had made directions on 22 April 2024 (at a hearing where the appellant appeared), specifically listing the forum argument before the primary judge. The primary judge refused the adjournment on the appellant’s oral argument.
On the appeal the appellant submitted that she believed that only the forum argument would be dealt with by the primary judge. The argument as to whether Australia was an appropriate forum for the divorce application was the ground upon which the appellant opposed the divorce (see Response to Divorce Application filed 20 December 2023 at Item 6). There was no dispute in the current divorce application as to the separation date (which was the date alleged by the appellant) nor any dispute that the divorce application had been filed more than 12 months after separation, nor any claim that there was a child of the marriage under 18 years of age (at [39]). Once the statutory grounds are established and the court determines that s 48(3) of the Family Law Act 1975 (Cth) does not apply, there is no discretion, a divorce order must be granted (Falk and Falk (1977) FLC 90-247; RAF & MMF [2005] FamCA 497 at [50].) In Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90 at [42]-[43], the Full Court confirmed there was no discretion to refuse a divorce order unless the court could decline to exercise jurisdiction, for example, if Australia is a clearly inappropriate forum. If the appellant failed on the forum argument and her adjournment application, a divorce order was inevitable in this case.
There is no merit in this ground.
The adjournment application – Grounds 2-4 and 6
In Grounds 2 to 4 and 6 the appellant complains that the primary judge erred in declining to adjourn the application and gave inadequate reasons with respect to this issue. Those grounds provide:
2. That the Primary Judge gave inadequate reasons with respect to dismissing the Respondent’s application for adjournment of the hearing set down for 27 June 2024.
3. That the Primary Judge erred in determining not to grant an adjournment of the hearing set down for 27 June 2024.
4. That the errors set out in paragraphs 1 – 3 herein infected the determination to grant the divorce order and the Primary Judge accordingly erred in the making of that divorce order.
…
6. In dismissing the Respondent’s application for an adjournment of the 27 June 2024 hearing the Primary Judge erred in failing to consider, or, alternatively, failed to give appropriate weight to:-
a. Any injustice that would be done to either party in the granting of the application for an adjournment.
b. Any injustice that would be done to either party in dismissing the application for an adjournment.
c. The capital gains tax implication for the property pool for division, specifically in relation to the UK assets and the parties’ position in relation to their positions in the UK corporations, of the making of a divorce order in the Australian forum.
d. The procedural consideration that the determination of the capital gains tax liabilities attaching to the UK assets is an issue to be determined at the property distribution trial and that justice and equity would be best served, and the requirements of Rule 1.04 and the overarching purpose of the Court to facilitate the just resolution of disputes according to law as inexpensively and efficiently as possible would be best met by adjourning the determination of the forum issue and the application for divorce to a date after the determination of the property division application.
e. The evidence that there was a hearing date scheduled for 2 August 2024 in the UK forum for the determination of an application for Divorce, such application having been filed in the UK jurisdiction prior to or just after the filing of the application for the divorce in the Australian jurisdiction.
The appellant had filed a response and an affidavit in the divorce proceedings on 20 December 2023, some six months before the hearing. The hearing was set down by orders of Judge M Neville on 22 April 2024 at an electronic hearing where the appellant appeared in person (Appeal Book, page 33). The primary judge addressed the appellant’s arguments for an adjournment, rejecting the appellant’s claim that she was not notified of the respondent’s divorce application (at [7]-[9] and [19]). The primary judge rejected the appellant’s argument that disputes as to disclosure in the property proceedings were relevant to the divorce application (at [20]) and rejected the appellant’s claims that there were prospects of reconciliation (as these claims were inconsistent with her divorce application filed in the United Kingdom) at [21].
The main complaint by the appellant appears to be that there would be capital gains tax implications in the United Kingdom if the divorce order were made prior to property settlement orders. This argument was not supported by any evidence from an expert, nor any reference to legislation from the United Kingdom. The appellant only had some pages printed from a website. The primary judge considered this argument, finding that there was no expert evidence and that it was not an appropriate consideration with respect to the divorce application (at [20]). This finding must also be seen against the background of pending property settlement proceedings where the parties’ potential taxation liabilities would be considered together with their conduct (if they had taken steps that caused unnecessary taxation liabilities). There was no admissible evidence before her Honour on this issue and thus the argument had to fail in any event.
The argument identified in particulars (a), (b), and (c) of Ground 6 appears to be that an adjournment of the Australian divorce application should have been granted as the appellant’s divorce application in the United Kingdom was listed for hearing on 2 August 2024. As the primary judge identified (at [30]) there was no evidence of the hearing date being set in England. The wife’s statement in Written Submissions filed 27 June 2024 that the hearing was listed for 2 August was not supported by evidence nor conceded by the respondent.
The appellant did not offer an undertaking not to pursue the United Kingdom divorce application on 2 August 2023, if it was in fact listed. If the court adjourned the Australian divorce application at the appellant’s request, then the appellant would have been able to pursue her United Kingdom divorce application in the meantime. This would have resulted in the parties’ divorce occurring in the United Kingdom which would defeat the respondent’s Application for Divorce in Australia without the forum issue being determined. If the appellant pursued her divorce application in the United Kingdom, then the divorce would have been effected prior to the outcome of the parties’ property settlement which would be inconsistent with the appellant’s argument that the divorce should have been postponed until judgment is delivered in the property settlement proceedings. Thus, the alleged hearing date was not a factor that weighed in favour of an adjournment in any event.
The adjournment decision itself cannot be the subject of an appeal: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26(2)(b)(ii). That decision is relevant only if it led to a defect in the judgment on the divorce application, such as a want of procedural fairness, in which case it is not the adjournment decision that is the subject of appeal but the final orders. The refusal of the adjournment did not lead to a failure to afford procedural fairness or any other defect in the judgment.
Even if the adjournment decision were appealable, in this case the primary judge considered the arguments put by the appellant with respect to the adjournment application. It has not been shown that the primary judge failed to place appropriate weight on the various matters her Honour took into account. The decision to proceed was not unreasonable in the sense discussed in House v The King at 504-505.
There is no merit in these grounds.
Forum Grounds
Ground 1 alleges that “the Primary Judge gave inadequate reasons with respect to making the declaration that Australia is an appropriate forum.” The primary judge addressed this issue at [22] to [31] and discussed the various relevant considerations on the material before the court in the context of the correct test, whether Australia was a “clearly inappropriate forum”. Not only did the appellant fail to show that Australia was a “clearly inappropriate forum”, but the primary judge was persuaded that Australia was the appropriate forum. This ground is without merit.
Ground 5 alleges that the primary judge failed to consider various matters relevant to the adjournment application. Ground 5 provides:
5. That in determining that Australia is an appropriate forum for the determination of the Application for a Divorce order (“the forum issue”) the Primary Judge erred in:-
a. Failing to consider, or to give sufficient weight to the undisputed facts that the parties had resided in the UK for at least 33 years (undisputed the parties resided in the UK from the date of their marriage until at least 2020) of their 40 year marriage (date of marriage undisputed [in] 1984 and calculated to the current date).
b. Failing to consider, or to give sufficient weight to the elements of the appropriateness of the UK as the most appropriate forum.
c. Failing to consider, or to give sufficient weight to the fact that a hearing of the Application for divorce filed in the competing forum of the UK is pending [in early] August 2024.
d. Failing to consider, or to give sufficient weight to, the capital gains tax consequences on the property held in the UK by the parties, of making a divorce order in Australia as opposed to the making of a divorce order in the UK;
e. Failing to consider that the issue of the capital gains tax liability attaching to the UK assets will be an issue to be determined at the trial of the property proceedings and that in order to meet the requirements of Rule 1.04 and the overarching purpose of the Court to facilitate the just resolution of disputes according to law as inexpensively and efficiently as possible, the most appropriate course of action would have been to grant the respondent’s application for an adjournment of both the divorce application and the forum application to a date after the determination of the property proceedings.
f. In considering, or giving too much weight to, the failure of the Respondent to object to Australia being the appropriate forum for the determination of the property division dispute, as being relevant to the determination of whether or not Australia is the appropriate forum for the determination of the application for the granting of a Divorce order.
In relation particular (a), the parties’ period of cohabitation in the United Kingdom was identified at [14]. Particular (b) does not identify any particular circumstance that the primary judge failed to consider. Particular (c) fails for the reasons set out above with respect to the adjournment application grounds. Particulars (d) and (e) address the appellant’s claims concerning taxation implication in the United Kingdom. As discussed above, these claims were not supported by evidence and could have been the subject of consideration in the property settlement proceedings. The final particular is more conveniently addressed under Ground 7.
The appellant has not shown that the primary judge failed to consider relevant facts or circumstances. The decision was not “plainly unreasonable” nor so “unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion” (House v The King at 504-505).
The appellant has not made out Ground 5.
Ground 7 alleges that:
7. That the primary judge erred in determining that the lack of challenge to Australia as the appropriate forum to determine property division is relevant to the issue of whether or not Australia is the appropriate forum for the determination of the granting of a divorce order.
This ground (and Ground 5(f)) address whether it was relevant to take into account that the parties had another matrimonial cause pending in Australia (the property settlement proceedings). The primary judge noted that the appellant had not objected to the court dealing with the property settlement application (at [26]).
It is difficult to understand why property settlement proceedings (another matrimonial cause) being litigated in Australia without jurisdictional objection would not be a relevant circumstance when considering whether Australia would be a “clearly inappropriate forum”. When deciding whether to grant a stay or an anti-suit injunction, all proceedings arising out a matrimonial relationship should be seen as forming a single controversy, see: Dobson & Londen (2005) FLC 93-225 at 79,712. These property settlement proceedings demonstrate an acceptance of the proposition that, at least for that matrimonial cause, Australia is not a clearly inappropriate forum.
Ground 7 (and Ground 5(f)) have no merit.
CONCLUSIONS
As the appellant has not made out a ground of appeal, the appeal must be dismissed.
The respondent sought costs but was unable to set out the argument prior to the delivery of the appeal judgment as there are claims concerning offers that may have been made. I will direct that the matter be relisted for a costs argument with directions as to the filing of affidavit material.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 20 November 2024
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