Merritt and Hill
[2016] FamCA 338
•12 May 2016
FAMILY COURT OF AUSTRALIA
| MERRITT & HILL | [2016] FamCA 338 |
| FAMILY LAW – Forum – Is Australia clearly inappropriate? – Both parties and their children live in Singapore – Consideration of advantages to wife – not clearly inappropriate – husband’s application for stay refused. |
| Family Law Act 1975 (Cth) |
| Dobson and Van Londen (2005) FLC 93-225 Elford and Elford [2016] FamCAFC 45 Henry v Henry (1996) 185 CLR 571 JAF v JAE [2015] SGHC 114 Navarro v Jurado (2010) 44 Fam LR 310 Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2010) CLR 491 |
Voth v Manildra Flour Mills Pty Ltd (1991) 71 CLR 538
| APPLICANT: | Ms Merritt |
| RESPONDENT: | Mr Hill |
| FILE NUMBER: | MLC | 7537 | of | 2015 |
| DATE DELIVERED: | 12 May 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 10 March 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sweeney |
| SOLICITOR FOR THE APPLICANT: | Clancy & Triado |
| COUNSEL FOR THE RESPONDENT: | Mr North QC |
| SOLICITOR FOR THE RESPONDENT: | Lander & Rogers |
Orders
That the husband’s application for a stay outlined in the response filed 23 December 2015 is dismissed.
That all extant applications in this Court are adjourned to a Registrar’s Directions hearing at 9.30am on 6 July 2016.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merritt & Hill 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 MELBOURNE |
FILE NUMBER: MLC 7537 of 2015
| Ms Merritt |
Applicant
And
| Mr Hill |
Respondent
REASONS FOR JUDGMENT
Ms Merritt (“the wife”) issued an application seeking financial relief under the Family Law Act1975 (Cth) (“the Act”) on 11 August 2015. The respondent to the application is Mr Hill (“the husband”).
By the husband’s response filed 23 December 2015, he sought a permanent stay of the wife’s application. On 19 January 2016, the wife filed an application in the Federal Circuit Court for a divorce. It is common ground that the divorce falls within the husband’s stay application.
The husband’s stay application asserts that Australia is the clearly inappropriate forum for all issues and that consequently all proceedings should be determined by the relevant courts in Singapore. The husband seeks an order for a permanent stay of the wife’s applications.
The husband carries the burden of demonstrating that the wife’s substantive application, if continued in Australia, would be productive of injustice because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious, in the sense of productive of serious and unjustified trouble and harassment. (Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2010) CLR 491 (at para 78)).
Relief sought
The wife’s application originally sought imprecise orders for a property division but also spousal maintenance and child maintenance. Her amended application filed 20 November 2015 sought orders that:
· The husband pay to the wife $830,000;
· The husband transfer to the wife his interest in the jointly owned real property at B Town;
· The husband discharge the mortgage encumbering the B Town property as well as a property in Suburb C (which stands in the wife’s name alone); and
· That the husband pay expenses for the parties’ children.
Needless to say, the wife’s divorce application asserted that the parties’ marriage had broken down irretrievably. To found jurisdiction, the wife alleged that she was an Australian citizen and regarded Australia as her home. The unusual feature of this case is that both parties, and their children, currently live in Singapore. Indeed, although the children have visited, they have never lived in Australia.
On 13 October 2015, the husband issued proceedings in the Family Justice Courts of the Republic of Singapore seeking a divorce and ancillary relief which related to the equivalent of property, parenting and maintenance proceedings in this Court.
It is common ground that the parties await a determination as to forum from this Court.
Background
The husband is a 48 year old British citizen who is chief executive officer of an international organisation. He is entitled to remain in Singapore on an employment pass. He earns close to $1million per annum.
The wife is 44 years of age. She is an Australian citizen. She works casually in a professional occupation working about three hours per week. Her income is nominal by the husband’s standard.
The parties met in Australia. At that time, the wife was the registered proprietor of a property in Suburb C and had professional qualifications.
In 2000, the husband moved to Singapore from Australia and on the way, purchased an investment property in the United Kingdom in his name only
One month after the husband moved to Singapore, the wife obtained a two year contract in her chosen profession working in Singapore and two months later, she joined the husband in Singapore.
The parties’ cohabitation properly began in June 2000 in Singapore. Two years later, the wife’s contract was extended but in February 2003, as a result of a career move by the husband, both parties moved to live in China. The wife could not immediately have her qualifications recognised there.
In 2004 in China, the parties’ first child was born and the second was born in 2006. The parties then married in 2006.
Before marrying, the husband bought another investment property in the United Kingdom. The purchase of this second property, along with the first, is relevant because an issue arises whether the courts of Singapore will recognise that property as being taken into account in a property division arising out of the breakdown of the marriage. The issue here relates to whether or not the law in Singapore recognises de facto relationships and contributions connected with them. Both properties were purchased prior to the parties’ marriage.
In April 2009, so after the parties had married, they jointly purchased their first and only joint Australian property at B Town specifically as a holiday home.
In 2009, the third of the three children was born.
The parties remained in China until April 2010 during which time, various non-real property investments were made the bulk of which seems to have been in the E Town.
In April 2010, the husband’s career required a further promotional move and this time, back to Singapore. The wife was predominantly occupied in the care of the three children who were successively enrolled in an international school in Singapore.
Having returned to Singapore, the wife began a diploma course. This was through D University and from there, she graduated in November 2014.
Throughout the years after 2000, the parties came to Australia for holidays and to meet with the wife’s extended Australian family. They also occasionally went to the United Kingdom to meet the husband’s family.
It was the wife’s evidence that she had always intended to return to Australia to live and that the husband had agreed. The husband’s position was that it was not practicable for them to live in Australia, referring to the fact that he was earning the significant living that he was in Asia and that he was supporting the dependent family.
All three children are now in school in Singapore. Both parties still live there. The wife acknowledged that although she desires to return to Australia, Singapore is a signatory to the Hague Child Abduction Convention so she could not just leave with the children. The husband opposes her desire to come to live in Australia observing that the children are settled in Singapore.
The marriage broke down and the parties permanently separated in January 2015. The ending of the marriage precipitated the wife issuing the proceedings to which I have referred.
The litigation sequence
On 11 August 2015, through Australian solicitors, the wife issued the proceedings earlier mentioned. She told the husband about them only days later and the wife’s solicitors then corresponded with the husband by email. Having received the email, the husband told the wife that notwithstanding a date had been allocated for the proceedings in Australia, he was not going to respond to her solicitors.
On 2 October 2015, the husband’s solicitor wrote a letter to the wife indicating that they acted for the husband. That led to correspondence between two law firms (one in Australia and one in Singapore) on 9 October 2015. The husband’s solicitor raised the forum issue.
On 12 October 2015, the husband was served personally with the wife’s Australian court documents and on 13 October 2015, he filed his proceedings in the relevant court in Singapore to which I have already referred.
The Singaporean court proceedings included an application by the husband for a divorce. Unlike Australia, the granting of the divorce is a threshold that must be met before ancillary proceedings can proceed.
The specific ground pleaded for the divorce (but not the only one upon which the husband may be entitled to rely) is that the relationship broke down as a result of the wife’s unreasonable behaviour. It would seem that that behaviour refers to the fact that she wanted to leave Singapore and return to Australia.
Although the expert evidence suggests that ancillary relief cannot be pursued until the divorce ground is established, it would also seem in the circumstances, such as here, where both parties acknowledge there is no prospect of a reconciliation, the court would normally be expected to grant the divorce. In other words, the necessity to prove the wife’s unreasonable behaviour, may not be necessary.
The ancillary relief sought by the husband included parenting orders. It was not suggested that the husband wants more than contact time (in Australian terms) with the three children. As he acknowledged, his business life demands were significant. He is currently seeing the children at modest times each fortnight.
In respect of other relief, the dispute seems on its face, modest. These matters are relevant to the issue of what the husband asserts is the likelihood of a very costly exercise with evidentiary difficulties because the main witnesses will all be in Singapore. The husband pointed to the fact that the Family Court of Australia could not make inquiries of psychologists, teachers and social contacts in Singapore and two lots of lawyers would be oppressive apart from being prohibitively expensive. But then again, that depends largely on the extent of the dispute. It was reported by Ms Lian, the lawyer acting for the wife in Singapore, that the court was told in December 2015 that there were no urgent children’s issues to be resolved and the parties had an agreed access arrangement. The wife’s application for relocation was not urgent and indeed, it seems to be suggested that it is not necessary until 2017. The husband’s solicitor was said to have told the court in Singapore that the husband was not prepared to confirm that he had no issues about parenting matters. That was an interesting comment but one picked up by senior counsel for the husband before me. He said that the current arrangement did not mean the husband did not want orders. Having regard to the husband’s evidence, the main issue still appears to be the relocation and that is not apparently urgent.
In respect of the relief sought by the husband in Singapore, the parties will be required to undertake a mediation process even if the divorce is granted by the Singaporean courts.
The experts
Each of the parties relied upon a lawyer in Singapore who had specialist knowledge of the jurisdiction. Their respective opinions were exchanged and commented upon. I find as a result of those opinions as well as s 121B of the Women’s Charter (Singapore) that Singapore is likely to recognise an Australian decree of divorce (if granted) but the party then seeking ancillary relief has to seek leave to proceed with the ancillary proceedings.
It is tempting to treat the matter as involving three discrete issues. First, there is the divorce. Secondly, there is the financial relief and thirdly, there is the parenting issue.
In respect of the third matter, albeit the wife does not see it as a pressing issue, she will have to deal with it at some stage in the future and, because of the convention matter, in Singapore. At the moment however, and notwithstanding the husband has a claim for relief about children’s issues, they are not matters that I consider are being seriously pressed by either party or determinative of this application.
That leaves the other two issues. The issue about the divorce should not be seen as separate from the one matrimonial controversy (see Henry v Henry (1996) 185 CLR 571 and Dobson and Van Londen (2005) FLC 93-225.
In Henry (supra) the High Court of Australia said:
The marital relationship lies at the heart of all proceedings between the husband and the wife with respect to their marital status especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.
In my view therefore it is appropriate not to separate out the two issues of the divorce and financial matters notwithstanding in Australia they are seen as distinctly different but in Singapore, as a sort of threshold.
Another dispute between the experts in Singapore concerned just what property is divisible. This issue revolves around the distinction between movable and non-movable property. Although there was some argument about discovery, the parties (in Australian terms) have modest assets. Whilst the wife talked in terms of a “pool” of assets, the reality is that she has a modest interest in the real property that she had prior to the commencement of the relationship with the husband and a joint interest in the B Town property. Both of those properties are encumbered by a mortgage to the National Australia Bank. There are two real properties in the name of the husband alone both of which are in the United Kingdom and both of which are encumbered by mortgage.
The parties have a variety of shares and investments and bank accounts. The significant bond portfolio policy seems to be registered in E Town and/or China and otherwise, the husband holds a significant shareholding arising out of his employment. There are bank accounts in Singapore and China in both parties’ individual names and there is superannuation in Australia and the husband has entitlements as a result of his employment. The husband also has club membership entitlements in Singapore which have modest values. It can be seen therefore that the assets in Singapore and Asia are what has been described as “moveable” and to the extent that any orders might be made by an Australian court, they would (as sought by the wife) be made personally against the husband (that is, in personam). To the extent that such orders were made, the expert evidence tends to suggest that if they were made in Australia, the orders would be recognised by the courts of Singapore.
In relation to property, the expert evidence which I accept from the wife’s solicitor is that the laws of the country where the financial orders are sought to be enforced would be determinative on whether such laws would be enforceable. The experts’ view was that it would be unlikely that the Singapore courts would find that it was appropriate to make financial orders under Singaporean law relating to assets outside of Singapore. That said, the expert noted that there appeared to be no significant properties located in Singapore let alone immoveable properties. That is significant if (as seems to be the case) the fund investment is not located in Singapore but rather China. To the extent that the proceedings for property settlement went ahead in Australia, in personam orders would most likely be enforceable in Singapore but it is hard to imagine how that would be necessary bearing in mind that most of the assets are outside of Singapore.
The de facto relationship issue
One of the problems raised about property settlement as articulated by the wife was that, as she and the husband were in a de facto relationship until 2006, any claim that she might have for a share of the husband’s property or indeed, for a share of all of the property would be prejudiced in Singapore because that country does not recognise de facto relationships.
The husband’s expert pointed to the Women’s Charter. Section 112 of that Charter provides that pre-marriage assets can be included if the wife can prove the assets were used by the parties as well as the property being “substantially improved” during the marriage by one or both of the parties. If as here, where the parties have married, there have been contributions during the pre-marriage cohabitation period, the Women’s Charter has been interpreted (JAF v JAE [2015] SGHC 114) as being wide enough to encompass those contributions. But that decision was also qualified by the Judicial Commissioner saying that those contributions could be taken into account if they “enhance a consequent marriage”. That qualification might be viewed as an impediment by the wife but it might also be seen that under the Australian law, there are similar requirements (for example, there being no community of property entitlement in Australia (see Elford and Elford [2016] FamCAFC 45 at 27)). Thus, any advantage might be questionable but not a matter that I can determine here anyway.
What are the factors that are to be considered?
Thus, it is at least open for this Court to find that Australia provides the wife with some juridical advantage in respect of the de facto relationship issues.
In Navarro v Jurado (2010) 44 Fam LR 310 Thackary J as a member of the Full Court and by reference to Voth v Manildra Flour Mills Pty Ltd (1991) 71 CLR 538 observed that the focus must be on the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum. Thus, the husband has to show that the Australian court is the clearly inappropriate forum. The emphasis on the word “clearly” must mean that the inappropriateness stands out.
That inappropriateness depends on an assessment of the factors and, because they are not exhaustive, any other relevant factors, approved of in Voth and Henry. The expressed list was:
(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 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 submissions of the parties and discussion
Senior counsel for the husband submitted that the wife had approached the matter on a mistaken and misconceived manner. In so far as that was directed to the question of whether the wife was promoting Australia as the appropriate forum, it is permissible for the Court to do that but ultimately, the Court has to come back to the question of whether or not Australia is the “clearly inappropriate forum” for the conduct of the proceedings that are currently before it.
There was little dispute about the relevant authorities. Senior counsel for the husband submitted that the Court needed to be conscious of the fact that the controversy (see Henry at 591-592) was the marital relationship itself and not the respective applications. It was submitted that the question of the forum had to be looked at in the entirety of the controversy not in the context of the application that the wife was seeking.
The husband’s position was to follow the pathway identified in Henry (at 592).
There is little doubt that the respective courts will recognise each other’s orders and decrees and in particular, Singapore will recognise orders that are made in personam.
As to which forum can provide more effectively a complete resolution of the matters involved in the parties’ controversy, much depends upon what view one takes of the looming parenting dispute. Senior counsel for the husband submitted that it could be readily assumed that each court has jurisdiction about property but that there was no aspect of the parties’ lives that was relevant here in Australia. I reject that. The parties acquired property here and used B Town as a holiday place. They used the wife’s property in Suburb C as security for borrowings. It is true that the major portion of the children’s lives has been spent recently in Singapore but they were born in China. The wife’s future career is dependent upon her Australian qualifications and she is the undisputed primary carer of the children.
If the proceedings were to remain here, it was submitted that the parties would have to fly in and fly out because at this stage, both still live in Singapore and will for the foreseeable future. Against that, Singapore is clearly the community where both parties live. In relation to any claim about the children, whilst the Court could have jurisdiction, it will not exercise it because of the provisions of s 111CD of the Act. Importantly however, that arises because the husband seeks parenting orders in Singapore but against that, the wife has indicated that there is no urgency about the parenting issue in any event. The parenting issue is of little moment. Even if there is to be a dispute, it seems to be focussed on the claims of the husband for his limited role having regard to his work and travel obligations. The wife’s desire to locate to Australia was not currently being pressed. Notwithstanding the Court should treat the issue as one controversy arising out of the marital breakdown, my view is that there is no pressing parenting issue. This is a case where that issue can be separated from the contentious issues.
In relation to questions of maintenance associated with the children, senior counsel for the husband submitted that it was absurd for a court in Australia to try and assess the expenses associated with the children in Singapore but against that, as submitted by counsel for the wife, the provisions of the child support legislation will apply and it would only be if there was some controversy about the formulaic approach, that an issue would arise. It is hard to envisage such an issue arising in circumstances where the husband is earning what he is.
Mr Sweeney on behalf of the wife submitted that there were juridical advantages for her in Australia. One of them related to the question of the wife’s rights associated with the de facto relationship but another relates to the question of litigation funding. The wife is in apparent parlous circumstances and whilst senior counsel for the husband said that that could be remedied, there is a much simpler pathway for the wife in circumstances where she seeks an interim property settlement which does not seem to be an apparent entitlement in Singapore. To the extent that the husband pointed to the witnesses, I agree with counsel for the wife that most of those issues arise out of other countries than either Singapore or Australia.
Discussion
In relation to the question of how advanced the respective proceedings have become, there is little difference in time but it is obvious that the wife issued first. As senior counsel for the husband submitted, neither proceeding has got very far. Only when the wife elected to proceed to ignore the request of the husband’s solicitors in Singapore to withdraw did the husband bring the proceedings that he did. Accepting as I do the evidence of the wife’s expert, the parenting issue was not the major concern nor any of the financial issues associated with the children. The major concern related to the property issue and the divorce.
One of the issues that the Court has to take into account is the cost factor. As I have already observed, whilst the husband suggests that two sets of proceedings would be prohibitively expensive, he is certainly in a much stronger financial position than that of the wife. Counsel for the wife observed that his client has no litigation funding in Singapore and by inference, cannot participate as easily whereas, if the proceedings remained in Australia, she could bring an interim application. Senior counsel for the husband was willing to provide assistance. I am more comforted by the knowledge that such an application can be quickly brought in Australia if the husband was not true to his word.
The Court may take into account the connection of the parties, and of the marriage, with the respective jurisdictions. This is not simply a question of where the parties live. Connection does not just mean residence. The wife’s position has always been that she intended to return to Australia but it would seem that the husband’s position was quite the contrary. Australia was not entirely ignored because the parties purchased a holiday home and used the wife’s Suburb C real property as security. Whilst the parties have lived in Singapore, they have virtually no assets of any substance there. A significant portion of their married life together has been out of Singapore and indeed as I have already indicated, all three children were born in China.
There is clearly a dispute between the parties as to whether the issue of the pre-marriage contributions can be taken into account. The husband’s expert says it may be taken into account but the legislation is not that clear. The authority relied upon is so qualified that I could only conclude that a Singaporean Court has a discretion but it would be inappropriate to speculate how that might be exercised. It seems to me that the balance of probabilities favours the wife’s interpretation. As against that, the significance seems modest because the Australian property is not something serious pursued by the husband and the English property has modest equity out of the total property. On balance, I am satisfied that there is juridical advantage to the wife in being able to litigate in Australia.
There is no question that both parties have the capacity to participate in the proceedings in either Australia or Singapore on an equal footing. There is no language barrier. Whilst the husband might complain about having to come to Australia, that same problem applies to the wife. A lot of the interlocutory steps can be done remotely and the parties can participate in the proceedings from Singapore. In Singapore, it is conceivable that there are more interlocutory steps and in particular, the threshold issue of the divorce. Those are not simply procedural issues; they go to jurisdiction. There is an advantage for the wife in Australia and no prejudice to the husband.
It is to be remembered that the essence of the determination lies in the question of whether or not Australia is a clearly inappropriate forum.
Conclusion
In Henry, the majority held:
The question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.
There are clearly advantages and disadvantages in both countries but the onus falls to the husband to show that the retention and continuation of the Australian proceedings is oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging. Any proceedings arising out of this relationship will be burdensome but there is nothing other than the inconvenience of costs that seems to me to be prejudicial to the husband. The same prejudice applies to the wife and that is offset in her mind by the juridical advantage she sees. There is therefore nothing oppressive about the nature of the proceedings. Nor could it be said that the proceedings have been brought in a vexatious way in a sense described as unjustified trouble and harassment. Nothing in the evidence suggests that the wife has chosen Australia for a vexatious purpose. It seems to me that she has chosen Australia because she sees that as an advantage for her and it is hard to see that there is any disadvantage as a consequence for the husband.
The general circumstances of this case are that there is little difference between the parties’ arguments. The strongest argument for the husband is the fact that he and the wife and the children are all in Singapore but the strongest argument for the wife is that she has an advantage in Australia albeit that is hard to quantify. The result must be that this Court is not clearly an inappropriate forum for the conduct of the property and other financial matters and certainly not for the divorce albeit that that application is currently in the Federal Circuit Court.
In my view, the application of the husband must fail.
I certify that the preceding Sixty Six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 May 2016.
Associate:
Date: 12 May 2016
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