Marshall and Kent - [2013] FamCA 967

FAMILY COURT OF AUSTRALIA

MARSHALL & KENT

[2013] FamCA 967

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Where an Initiating Application was filed in this court – Where both parties are Country Fn Citizens – Where both parties are currently residing in Country H – Where subsequently the husband has initiated proceedings in Country H – Where subsequently the wife has initiated proceedings in Country F – Where the matters relating to children have been dealt with by the Court in Country H – Where the parties have property in a number of countries – forum non conveniens – Where this jurisdiction is no longer an appropriate forum.

Family Law Act 1975 (Cth) s 39(1), s 39(4), s 39(4A), s 69E(1)(c), ss 69E(2), s 69H(1)
Foreign Judgments Act 1991 (Cth)

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Henry v Henry (1996) 185 CLR 571
Chen & Tan [2012] FamCA 225
Clayton & Banter [2013] FamCA 790

APPLICANT:

Mr Marshall

RESPONDENT:

Ms Kent

FILE NUMBER:

BRC

9692

2010

DATE DELIVERED:

11 December 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

13 November 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Cooper
Cooper Family Law

COUNSEL FOR THE RESPONDENT:

Mr McDougall

SOLICITOR FOR THE RESPONDENT:

Little Lawyers

Orders

That these proceedings, BRC9692 of 2010, be permanently stayed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9692 of 2010

Mr Marshall

Applicant

And

Ms Kent

Respondent

REASONS FOR JUDGMENT

By a document headed “Amended Response to Initiating Application (Family Law)” filed in this Court on 1 May 2013, Mr Marshall (“the Husband”) seeks an order in the following terms:
That the proceeding (BRC 9692/2010) be stayed on the basis that this Honourable Court is a clearly inappropriate forum.
These proceedings, numbered BRC 9692/2010, were commenced in this Court by Ms Kent (“the Wife”) by the filing of an Initiating Application (Family Law) on 29 October 2010. In that application, the Wife sought parenting orders on an interim and final basis in respect of the two children of the Husband and the Wife, in addition to orders on an interim and final basis in respect of a piece of real property situated in Suburb C in Brisbane that was registered in the Husband’s sole name.
According to the Husband’s evidence relied on in his application currently being determined, this Court made interim orders on 28 March 2011 that the Suburb C property be sold and that from the net proceeds of sale the Wife receive $75,000. The Husband says that the property was sold on 4 November 2011 for $725,000 and that it was further ordered that Gadens Lawyers be paid $7,893.60 from the sale proceeds. The Husband did not give evidence as to the reason for that, but said that the remainder of the sale proceeds of the property were invested in the trust account of the Wife’s solicitors, where they remain today in an amount of $30,640.
The Husband said in his evidence that the Wife had filed an Amended Initiating Application since the filing of her Initiating Application. She did that on 16 December 2010. The Husband said that in both those documents the Wife effectively sought orders that she receive the entirety of the net proceeds of sale of the Suburb C property.
Certainly, the final orders for property adjustment the Wife sought in her Initiating Application only related to the Suburb C property. She did seek the sale of that property and the balance of the proceeds of sale, after discharge of the mortgage, to be paid to her. However, in the Amended Initiating Application filed by the Wife on 16 December, 2010, the Wife sought a final order that the Husband pay her “an amount sufficient to bring her share of the property pool to 70 [per cent]”.
In his affidavit evidence, the Husband sets out a table of the property that he asserts the Wife has previously asserted is the property that is available for distribution or adjustment between them. It lists what appear to be three pieces of real estate situated in Country F, a share portfolio, some bonds, the Husband’s interest in an employee’s Provident fund and his “[D Pty Ltd] Superannuation”. The Husband also attached to his affidavit the Balance Sheet that he filed in these proceedings on 18 March 2011. In that, he lists interests in real properties in Country F, real property in Country G, motor cars, valuable watches, handbags and jewellery, furniture and personal property and bank deposits. He also lists superannuation interests.
The Husband says in his affidavit that the Wife seeks no orders referable to the properties in Country F or his “[Country H] superannuation funds” or any chattels “she may be now in possession of in [Country H].” However, the Wife’s Amended Application in which she applied for the order that the husband pay her an amount sufficient to bring her share of the property pool to 70 per cent seems to belie that asserted fact. It seems clear to me that means she wants to be paid by the Husband an amount that equals 70 per cent of the value of all of their property, wherever situate, not just by reference to the property that is in Australia.
The Husband deposed to filing a Response in the proceedings on 12 March 2011. A copy of an unfiled Response document that bore a date of around that time was handed to the Court but there is no record on the Court file of the Husband ever having filed a Response. As the Husband deposed in his affidavit, in that unfiled Response (that he apparently thought he had filed) he sought orders that the net proceeds of sale of the Suburb C property be invested pending agreement or decision of a Court of competent jurisdiction.
At the hearing of the Husband’s application now being considered (the stay application), the Wife sought and obtained leave to file another Amended Initiating Application. As interim orders sought, the Wife included in that document the following:
1. That the Final Order sought in the Husband’s Amended Response filed 1 May 2013 seeking a stay in these proceedings be dismissed.
2. That the monies held in the trust account of Littles Lawyers on behalf of both parties in the amount of $30,640.23 be released to the Wife by way of partial property settlement for the Wife’s sole use and benefit absolutely.
3. That the Husband pay to the Wife a further cash payment of $25,000 to be paid into the trust account of Littles Lawyers BSB … on or before 30 November 2013 by way of partial property settlement for her sole use and benefit absolutely.
4. That these orders be authority for Littles Lawyers to transfer the monies held in trust on behalf of both parties into a trust account held in the Wife’s sole name.
No argument was advanced on behalf of the Wife for the hearing and determination of her application for those orders prior to consideration and determination of the Husband’s application for a stay. Determination of the stay application in the Husband’s favour will, I am satisfied, have the consequence of staying any consideration of that application. Accordingly, it is to the determination of the Husband’s application for a stay that I now turn.

What does the Evidence establish as relevant factual background?

The Husband and the Wife were born in Country F and are Country F citizens. They were married in Country F in 2000. Their two children were born in Country F in 2002 and 2003 and are Country F citizens.
In February 2006, the couple purchased property in Country F. The family of four moved to Australia in 2008 but the Husband, who is employed with D Pty Ltd and based in City I in Country H, continued to live much of the time in City I, coming back to Australia, for a period of 3 to 7 days only, each month.
Before the family came to Australia to live, a block of land was bought in Suburb C and registered in the Husband’s name. A house was built on that land for the family to live in after they arrived here. The Husband says the Wife and children lived in Australia between 2008 and 2010, making trips back to Country F and other countries in that time.
The relationship broke down in 2010. It seems there is factual dispute about the circumstances of the breakdown. The Husband says in his affidavit that the Wife asserts that the couple separated on 12 September 2010. He does not agree with that. He says that they had an agreement that the family would relocate to Country H and that he left with the children to go to City I on 15 October 2010. He asserts that the Wife relocated to City I a year later, on 15 October 2011. By then though, the couple was clearly separated and in serious dispute about parenting of their children and division of their property.
The Husband asserts both he and the Wife currently reside in Country H and that he continues to be employed with D Pty Ltd, flying approximately 60 hours per month. He asserts that the Wife is employed in City J, a city in Country H.
The Husband asserts in his affidavit sworn in March this year and filed in support of the application for the stay on 1 May 2013 that he and the Wife have submitted to the jurisdiction of Country H courts on matters relating to divorce and parenting of the children. He asserts that on 20 June 2012, a Court in City I in Country H heard and determined divorce and parenting proceedings between the couple. That was the date of a determination of an appeal and cross-appeal against an order of a first instance court. The Husband asserts that those proceedings resulted in the couple being divorced and the children living with him. He has exhibited a copy of the judgment in Arabic and an apparently certified English translation of that judgment. It reflects that a court of five judges determined an appeal as between him and the Wife and that each party was represented by a lawyer.
As I read the English translation of that judgment, it appears that the Husband sought a divorce and custody of the two children at first instance on the basis of the Wife’s alleged adultery. He was unsuccessful at first instance but successful on appeal. Accordingly, he obtained the divorce from the Wife and custody of their two children. The Wife appealed that decision and was unsuccessful in that appeal. She was ordered to pay the Husband’s costs of her unsuccessful appeal.
The Husband exhibits to his affidavit filed 1 May 2013 a letter from his “Advocate & Legal Consultant” in Country H, dated 26 February 2013. In that letter, reference is made to the case filed in the City I Court that relates to the “disbursement of assets acquired in the period of the marriage between both parties and is a normal progression further to the Divorce and Children Custody case heard and concluded to date.” It says that both parties have submitted to Country H courts on matters relating to their divorce and custody of the children. It also says:
Apart from the assets acquired during the course of their marriage, the case filed includes all monies held in trust by either party, or any appointed Trustee; funds to which both parties have interests in.
The Husband also exhibits to that same affidavit what are purported to be copies of Country H court documents and English translations evidencing that he has commenced proceedings in the court in City I in respect of property arising out of the breakdown of their relationship. He also exhibits a letter from his Country H lawyer of 25 February this year to the Wife’s Australian solicitors in which they are advised that the court hearing in respect of property has been moved to April 26, 2013. The Husband deposed in his affidavit that a “hearing with respect to the property of the parties is scheduled in Country H for 26 April 2013”. It appears from the English translation of the document issued out of the City I court on 26 February 2013 that the matter was probably adjourned to 26 April 2013 as the Wife had not been served with relevant documents as at that February hearing.
The Husband, in his affidavit, further asserts that the couple’s only connection with Australia now is the money being held on trust for them by the Wife’s solicitors in this country.
That is the extent of his evidence in support of his stay application.
At the hearing of this matter in this Court on Monday 18 November, 2013, the wife’s legal representative relied upon two affidavits of evidence filed that same day. One was an affidavit of the Wife’s Brisbane solicitor, the other was an affidavit of the Wife.
The Wife’s solicitor’s evidence confirmed that the Wife currently resides in City I in Country H. Otherwise, it exhibited a copy of a document the Wife had emailed to her solicitor and a purported English translation of that document. It reflects that a matter was called on in the City I Court of Appeals on 11 November 2013. It reflects that a lawyer from the Husband’s Country H lawyer’s office appeared and tendered documents with translations. It reflects that the Respondent (presumably the Wife) did not appear and applied to reserve the judgment and that the Court decided to reserve the judgment in the appeal until 26 November, 2013.
In the Wife’s affidavit, she said that she has not submitted to the jurisdiction of Country H. She also says that she provided a memorandum to the City I Court on 6 October 2013 in response to the Husband’s appeal against an earlier decision of the Court that the Court would not proceed to “deal with the matter.” The Wife exhibits a copy of that memorandum to the City I Court. It is, in reality, a letter written by her and dated 6 September 2013. In that letter, she relevantly says this:
The properties purchased during our marriage are all located overseas and not in the [Country H]. However there is a lack of jurisdiction over this matter.
The property located at [K Street, Suburb L, Country F] is a property purchased and is under joint names between me and the Plaintiff. The disbursement of this property should be done in the Country F High Court. This case has been filed in the [Country F] High Court and the Plaintiff’s lawyers, Mr. Shakir Matouq were advised by E-mail and Fax. The Reference Number is: …. Attached is the letter that was sent by my lawyer in [Country F].
The land in [Country G] is solely under my name.
The property is Brisbane, Australia is dealt fairly and accordingly by the Family Court of Australia. The case was opened by me in 2010. File No: (P) BRC 9692/2010. The matter is still proceeding and solely under the jurisdiction of the Family Court of Australia.
Once again, I do not wish to submit to the jurisdiction of the City I court for this matter as I am only a resident here for a short period and will returning (sic) to my home country soon. These property matters should be heard in the country where it is located.
The Wife exhibits to her affidavit the copy of the same document in Arabic that her Brisbane solicitor exhibited to her affidavit along with the English translation reflecting the document to be acknowledging that the judgment of the Court in the appeal that was heard was reserved to 26 November, 2013.
There is no other evidence from the Wife. However, during the course of the hearing the Wife’s counsel referred me to the order of Barry J of this Court dated 29 October, 2010. His Honour made ex parte orders on the application of the Wife that day for the Husband to return the children to the Wife’s care in Australia and restraining him from leaving Australia.
Clearly, those orders were made after the Husband had taken the children from Australia as I have already observed he said he did on 15 October, 2010. I asked the Wife’s counsel if he was asking me not to hear the Husband’s application because the Husband had not returned the children to the Wife in Australia in compliance with that order, as was apparent. The Wife’s counsel eventually took that matter up and did ask the Court not to hear the Husband’s application for that reason. However, having now considered the matter further, I have determined that there is actually no evidence before me at all about that issue that would enable me to safely make findings that would justify a refusal to hear the Husband’s stay application for reason of alleged continued contravention of this Court’s orders or contempt of this Court’s process.

This Court’s Jurisdiction

When the Wife filed her Initiating Application she was in Australia and had been living in Australia with the children for a couple of years, being visited by the Husband each month for three to seven days at a time.
No argument was advanced on behalf of the Husband on the application for a stay that this Court does not have jurisdiction to hear either the Wife’s parenting orders application or her application for property adjustment orders. Although she is not living in Australia at the moment, the Wife was in Australia or, at least, ordinarily resident in Australia, on the day that her Initiating Application was filed in October 2010. (See s 39(1), (4), (4A) and s 69E(1)(c), (2) and 69H(1) of the Family Law Act 1975). Accordingly, the Court has jurisdiction in respect of the Wife’s parenting and property adjustment applications.
The jurisdiction the Court has in determining property adjustment applications is a jurisdiction exercised in personam. As such, orders the Court makes are directed against a party not property. Orders can be made in personam ordering a party to transfer title to real property even if it is situated overseas.[1]
[1] See the more detailed discussion by Kent J in Chen & Tan [2012]FamCA 225 delivered by his Honour 12 April 2012, particularly at [13] to [22].

What Law and Principles are to be applied in determining the Husband’s Stay application?

For the Husband, it is argued that this Court is a clearly inappropriate forum for hearing the parenting and property adjustment proceedings. In making this argument, the Husband seeks to invoke the doctrine of forum non conveniens under the conflict of law rules within the common law of Australia. By this doctrine, the Court may be compelled to decline to exercise its jurisdiction, where it is otherwise properly enlivened, having regard to the principles that emerge from the High Court’s decisions in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 and Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 and Henry v Henry (1996) 185 CLR 571.[2] As Kent J said in Chen & Tan[3], where Australia is determined to be a clearly inappropriate forum, allowing a case to proceed here becomes oppressive or vexatious and, because of this, the Court should decline to exercise its jurisdiction to prevent abuse of its process.
[2] See again the discussion of the principles emerging from these cases by Kent J in Chen & Tan at [23] to [39].
[3] [2012]FamCA 225 [38].
To determine whether or not Australia is a clearly inappropriate forum, the Court needs to consider and assess a number of factors. They have, in the cases referred to in the previous paragraph, authoritatively been identified to include the following:
a)Factors of convenience and expense such as the location of witnesses;
b)Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing;
c)The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;
d)Whether the other potential forum will recognise Australian Orders and vice versa and the ease of enforcement in each country;
e)Which forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy;
f)The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;
g)The governing law of the dispute;
h)The place of residence of the parties;
i)The availability of an alternative forum; and
j)Any legitimate juridical advantage to litigating in either jurisdiction.

The Husband bears the onus on the application and the Court is limited to considering the matter against only that evidence which each of the parties filed. At the hearing of the application, I expressed the Court’s disappointment at the failure of the legal representatives of each party to assist the Court with written submissions setting out the law and principles to be applied and relating the facts of the case to those principles. I am equally disappointed with the lack of effort those legal representatives made in respect of putting appropriate and relevant evidence before the Court on the determination of an application such as this. Better is expected of practitioners representing parties on applications such as this. That said, I must turn to the determination of the application on what is before the Court.
Both parties apparently now live in Country H. The Wife’s evidence includes the assertion that she does not submit to that jurisdiction. It also includes the assertion that she is only resident in Country H for a short period and will be returning to her “home country soon.” It does not include evidence as to what country that is, but I consider it safe to assume that Country F is the “home country” she refers to. If the matter was to proceed in this Court both parties would need to travel here to participate in a trial and give evidence.
Apart from the money in the trust account of the Wife’s solicitors, the evidence points conclusively to all other property being located in other countries, particularly in Country F, Country G and Country H. Any disagreement about valuation of that property would require evidence from experts most likely to be drawn from the community local to the area where the property is situated. No such witness would be likely to be drawn from the Australian community.
On the evidence, proceedings have been commenced in Country H by the Husband and also by the Wife in Country F, the parties’ country of origin and the location of three real properties of the parties. I have little doubt the parties could participate in proceedings in Country F on an equal footing in respect of language, culture, ability to attend the proceedings and related matters. As to the proceedings in Country H, I do not know whether the Husband is able to speak the Arabic language such that puts him at an advantage over the Wife in a Country H Court given that she cannot speak Arabic. Having regard to the Husband’s employment and the income that it is likely to generate for him, compared to the Wife’s employment and the income it is likely to generate for her, I expect that the Husband might have direct financial advantage over the Wife in respect of participation in legal proceedings regardless of which country they are in. I doubt that continuing proceedings in this Court would somehow ensure the Wife is more able to participate on an equal footing in that respect.
The parties only lived in Australia for two years during their marriage and then, the Husband was only infrequently here. They clearly have a far greater connection with Country F which is where the Wife has otherwise commenced proceedings for property adjustment. For the moment at least, they also clearly have a greater connection with Country H, the Husband having lived there with the children since 2010. It is not clear how long the Wife has lived in Country H but the evidence establishes that she left Australia in late 2011. In any event, she is living there at the moment.
There is a dearth of expert evidence put before this Court about the issues on which property adjustment relief may depend in each of the other jurisdictions. For the Husband, a letter from his Country H lawyers asserting that Country H court proceedings currently under way relate to the “disbursement of assets including all monies acquired during the course of the marriage and/or held in trust” is the extent of such evidence. With respect to Country F, it is of note that the Wife has commenced the proceedings there. That suggests, at least, that she is comfortable seeking relief in that country.
There is a similar dearth of any expert evidence as to whether or not Country F and/or Country H will recognise Australian Court Orders and how Australian orders might be able to be enforced in those countries.
In so far as Country H is concerned, I am however assisted by findings of fact made by Kent J in his Honour’s recent judgment in Clayton & Banter [2013] FamCA 790. His Honour found, after considering extensive expert evidence, that Australia and Country H do not have any reciprocal treaty arrangement providing for the enforcement or recognition of this Court’s orders in Country H. He also found that there is no equivalent to a “mirror procedure” for the making of orders in Country H which “mirror” orders made by this Court. Orders of this Court have no force or effect, and are not enforceable in, Country H. Undertakings to this Court are, similarly, not enforceable in Country H.
There was absolutely no evidence put before me about the enforceability or recognition of this Court’s orders in Country F.
Judgments of the courts of Country H and the courts of Country F are not enforceable in this country pursuant to the provisions of the Foreign Judgments Act 1991 (Cth). In the circumstances, I expect judgments of this Court are not enforceable or recognised in Country F.
Absent any capacity for enforcement of this Court’s orders in Country H or in Country F, the in personam nature of this Court’s jurisdiction means this Court’s jurisdiction is only likely to be effective at all in finalising property division between the parties if the party who was to have obligations under this Court’s orders was within the jurisdiction at any time. There is no evidence that either party will be coming back to Australia at any time in the future.
The children of the marriage are no longer living in Australia. They live with the Husband in Country H, pursuant to a Country H court determination. I am convinced there is absolutely no efficacy in continuing parenting proceedings in this Court. Of course, whilst this Court may be a clearly inappropriate forum to litigate parenting matters as between two parties it may nonetheless not be considered a clearly inappropriate forum to litigate property division.
As it appears the children are living in Country H with the Husband pursuant to Court order made in a court of that country that has also dealt with the divorce of the parties and which is currently, at least, seized of property matters, it appears to me that the courts of Country H look to be able to provide the parties more effectively with a complete resolution of their disputation. Of course, there is evidence that the Wife objects to Country H court’s jurisdiction to deal with their property and that she has commenced proceedings in Country F. However, there is absolutely no expert evidence at all before me upon which I could make any findings as to the Wife’s prospects of success in respect of that objection. Furthermore, it is not beyond possibility, I consider, given the predominant Islamic culture in both Country H and Country F, that those two countries may have some form of mutual recognition and enforceability of each other’s judgments.
It is very clear to me that a complete resolution of the matters involved in the parties’ disputation is not likely to be effectively provided in this Court, whereas there is a greater prospect of that being achieved in the courts of Country H and/or Country F.
The proceedings in this Court were commenced first in time. Parenting orders were made in these proceedings soon after their commencement but they have remained completely ineffective given that the children were apparently already beyond the jurisdiction with the Husband when they were made and have remained beyond the jurisdiction apparently ever since. The parenting proceedings here have been overtaken completely by parenting orders made in Country H court in favour of the Husband. Those are clearly in force and remain enforceable whilst the children remain in that country. Some property orders were made on an interim basis in the proceedings in this Court soon after they were commenced but they only related to the one piece of real property situated in this country. Pursuant to those orders, the sale of that real property was effected, most of the net proceeds of sale were paid to the Wife and the balance retained in trust for the parties by the Wife’s solicitors. Nothing more has happened in the property proceedings here in many months since then. At the same time, each of the parties has commenced property proceedings in other countries that each appears to consider far more effectively dealing with their overall property division entitlements than the continued pursuit of the proceedings before this Court.
There is no evidence before me as to the issue of the costs that each party has spent in the proceedings here or the proceedings in the other countries.
Again, given the absence of any relevant expert evidence, I am unable to make specific findings about legitimate juridical advantage to the Wife to litigating in this country as opposed to Country H or Country F, but I observe again that it is the Wife who has said she commenced proceedings in the Country F Court and that the Court there is the more appropriate forum for dealing with the property situate there.
In considering all of the factors that I have discussed in the paragraphs above, I come to the conclusion that Australia is now a clearly inappropriate forum for the continued litigation of these parties’ disputation. Accordingly, I will make the order the Husband seeks staying these proceedings. I will stay them permanently and will not now go on to consider the application for interim orders made by the Wife.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 December 2013.

Associate:

Date: 11 December 2013