Mittelman & Eilerts
[2024] FedCFamC1F 115
•5 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mittelman & Eilerts [2024] FedCFamC1F 115
File number(s): MLC 3982 of 2023 Judgment of: WILLIAMS J Date of judgment: 5 March 2024 Catchwords: FAMILY LAW – JURISDICTION – Appropriate forum where proceedings are on foot in Country B and Australia – Where there are competing applications for an anti-suit injunction with respect to financial and divorce proceedings – Where the parties were married in Country B – Where the wife’s domicile of choice is Australia – Where both parties concede that Australia is an appropriate forum for the parenting proceedings – Where the Australian court is held not to be a clearly inappropriate forum for financial and divorce proceedings – Application for injunction restraining the husband from proceeding his application in Country B granted Legislation: Domicile Act1982 (Cth) s 10
Family Law Act 1975 (Cth) ss 45, 75, 79
Cases cited: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Henry v Henry (1996) 185 CLR 571; ]1996] HCA 51
Kent & Kent [2017] FamCAFC 157
Kornfeld & Weinger [2023] FedCFamC1F 817
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32
Voth & Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55
Yeo & Huy (No 2) [2012] FamCA 541
Division: Division 1 First Instance Number of paragraphs: 98 Date of hearing: 9 February 2024 Place: Melbourne Counsel for the Applicant: Mr Sweeney Solicitor for the Applicant: Pearsons Lawyers Pty Ltd Counsel for the Respondent: Mr Fudim Solicitor for the Respondent: Jerald Gomez & Associates ORDERS
MLC 3982 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MITTELMAN
Applicant
AND: MR EILERTS
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.The husband forthwith do all acts and things and sign all documents necessary to withdraw and/or discontinue his application for divorce, financial relief and parenting in the High Court of Country B in City C, Region D, Country B, (Summons No: […]) and pending such withdrawal and/or discontinuance of that application, the husband be restrained by injunction personally, by his servants and/or agents from further prosecuting any such applications.
2.All extant applications be listed for further mention before a judicial registrar on a date to be advised, noting that the case will remain in the docket of the Honourable Justice Williams.
3.All extant applications and responses are otherwise dismissed.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mittelman & Eilerts has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION
The issue for the court to determine is whether financial and divorce proceedings between the parties should be determined in this Court or in the High Court of Country B.
The wife filed an Amended Initiating Application in this Court on 19 January 2024 seeking financial relief and parenting orders. She contends this Court is the appropriate forum to determine the marital dispute and seeks an injunction restraining the husband from proceeding with his applications in Country B.
The husband has filed an application in the Country B Court seeking divorce, financial relief, and parenting orders. He contends the Country B Court is the appropriate forum and seeks an injunction restraining the wife from proceeding with her application in this Court.
The matter was listed before me for determination on 9 February 2024 and proceeded by way of submissions from both counsel. During the hearing, counsel for the husband conceded the appropriate forum to determine the parenting proceedings is Australia because the child is currently, and will be for the foreseeable future, habitually resident in Australia.
The dispute to be determined by me is therefore in relation to competing fora for financial matters and divorce.
For the reasons that follow, I have determined that this Court is the appropriate forum to determine the financial and divorce proceedings between the parties.
BACKGROUND
The wife was born in Country B and is 54 years old. She is a Country B citizen and a permanent resident of Australia. She has been resident in Australia since 2015, and has expressed her intention to continue to reside in Australia. Her domicile of choice is Australia.
The husband was born in Country B and is 63 years old. He is a citizen of Country B and a permanent resident of Australia. He currently lives in Country B but has expressed an intention to return to Australia for the purpose of setting up a business in Western Australia.[1]
[1] Husband’s affidavit filed 25 January 2024, paragraphs 42 and 109.
The parties have one child together, X aged fourteen years, who lives in Australia with his mother.
The parties commenced cohabitation in Country B in 2009, according to the husband and in early 2010, according to the wife. In 2015 they commenced living in Australia with their son, returned to Country B to marry in early 2018, and separated in October 2022.
Since arriving in Australia, the husband deposes to regular travel between Australia and Country B for work and that the parties and child regularly travelled to Country B to visit extended family.
In 2016, the parties purchased two properties at 1 and 2 E Street, Town F where they operated a business known as G Business. The same year, they also started a business which was owned by H Pty Ltd, of which the parties were sole directors and shareholders.
In late 2022, the husband returned to live in Country B to care for his elderly mother.
In 2022, the property at 1 E Street was sold for $2.2 million. The proceeds of sale were paid equally to the parties at settlement, however, according to the husband the proceeds of sale remain to be adjusted. Shortly thereafter, the property at 2 E Street was sold for $1.1 million, with the proceeds of sale remaining in a term deposit controlled by the lawyers who acted on the sale of the property.
According to the husband, his assets in Country B consist of the following:
(a)An interest in H2 Company – $1,666,666;
(b)A building in Region D, Country B – $266,666;
(c)Agricultural land in Region K, Country B – $250,000;
(d)Investments in the L Investments – $16,667;
(e)Motor vehicles – $28,999;
(f)Funds in banks – $416,666.
The wife asserts the husband has failed to disclose his shareholding interests in the principal company operated by him in Country B, H2 Company, because he recently transferred his interests to his three adult sons of another relationship.
According to the husband, the assets in Australia consist of the following:
(a)Funds held in a trust account - $1,083,183;
(b)Funds in the husband’s bank account (M Bank) - $231,000;
(c)Funds in the parties joint CBA accounts - $3,300;
(d)Funds in the wife’s bank account - $317,229;
(e)Motor vehicles - $2,000;
(f)The wife’s superannuation entitlements - $398,053.
THE DOCUMENTS RELIED UPON BY THE PARTIES
The wife relied upon the following documents:
(a)Further Amended Initiating Application filed by the applicant on 19 January 2024.
(b)Affidavit of Ms Mittelman filed 19 January 2024.
(c)Affidavit of Ms N filed 19 January 2024.
(d)Financial Statement filed by the applicant on 19 January 2024.
(e)Affidavit in reply of Ms Mittelman filed 2 February 2024.
(f)Affidavit of Mr O filed 4 December 2023.
(g)Affidavit of filed 7 February 2024.
The husband relied upon the following documents:
(a)Response to Initiating Application filed by the respondent on 23 June 2023.
(b)Affidavit of Mr Eilerts filed 23 June 2023.
(c)Financial Statement filed by the respondent on 25 January 2024.
(d)Affidavit of Mr O filed 4 December 2023.
(e)Affidavit of Mr P filed 7 February 2024.
ORDERS SOUGHT BY THE PARTIES
The wife seeks orders that the husband be restrained by injunction from issuing or proceeding with his application for divorce, property division and parenting orders in Country B, in addition to various monetary and discovery related interlocutory orders.
The husband seeks orders that the wife be restrained by injunction from proceeding with her application in this Court for the adjustment of property interests, her application for security for costs be dismissed, and she pay the costs of and incidental to these proceedings.
THE RELEVANT LEGAL PRINCIPLES
The power to grant an anti-suit injunction should not be exercised without the court concerned first considering whether its own proceedings should be stayed: see Kent & Kent [2017] FamCAFC 157 at [27].
The power to grant a stay arises from the general powers in s 45(1) of the Family Law Act 1975 (Cth) (“the Act”) and are an aspect of the inherent or implied power of every court “… to prevent its own processes being used to bring about injustice” (CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 391).
In Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197, 479 Deane J said:
The power [to grant a stay] should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local Court in which the particular proceedings have been instituted that it is so inappropriate for their determination that their continuation would be oppressive and vexatious to him…
In Voth & Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”) the High Court of Australia (“the High Court”) held a party who has properly instituted proceedings in Australia has a prima facie right to have those proceedings determined by an Australian court, unless the Australian court is a “clearly inappropriate forum”.
Therefore, when a dispute arises about whether a foreign court or an Australian court is the appropriate forum to determine a dispute between parties, the Australian court should remain seized of the proceedings, unless it is satisfied it is a clearly inappropriate forum. Conversely, if the court is a clearly inappropriate forum, it should stay its own proceedings and yield the controversy to the alternative jurisdiction.
In Henry v Henry (1996) FLC 92-685, 576 (“Henry”) the High Court adopted the general law test, previously enunciated by the High Court in Voth, for family law proceedings and explained a court is clearly an inappropriate forum “if continuation of the proceedings in that court 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”.
In Henry at 565, the plurality set out a non-exhaustive list of considerations relevant to a stay of proceedings and emphasised that “the question of 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”.
Assuming both countries have jurisdiction, in Yeo & Huy (No 2) [2012] FamCA 541 at [35], Murphy J set out a succinct distillation of the Henry considerations as follows:
•Whether each court will recognise the others orders and decrees;
•Which forum can provide more effectively for complete resolution of the matters involved in the parties controversy;
•The order in which the proceedings were instituted;
•The stage at which the proceedings have been reached;
•The cost that has been incurred by the parties;
•The connection with the parties and their marriage with each of the jurisdictions;
•The resources of the parties and their understanding of language and enabling the parties to participate in respective proceedings on an equal footing.
Noting that the Australian court clearly has jurisdiction, I will now turn to the whether the Country B court has jurisdiction to determine the property proceedings.
Does the Country B court have jurisdiction?
The single expert engaged by the parties, Mr O, states the Country B court’s power to make a decree of divorce arises under the country’s marriage and divorce act.[2] The power arises when:
•The marriage has either been registered or deemed registered under the [relevant act] or was contracted under a law providing that, or in contemplation of which, the marriage is monogamous; and
•The domicile of the parties to the marriage at the time when the petition is presented is in [Country B].
[2] Single expert witness affidavit filed 4 December 2023, paragraph 8.
There was no dispute the parties married in Country B and the marriage was registered there.
In relation to domicile, the single expert opines that pursuant to s 3(1) of the relevant act, shall apply to all persons in Country B and to all persons domiciled in Country B but resident outside Country B.[3] Further, s 3(2) of the relevant act provides a citizen of Country B is deemed, until the contrary is proved, to be domiciled in Country B.
[3] Single expert witness affidavit filed 4 December 2023, paragraph 9.
In this case, the wife asserts that whilst she is a Country B citizen, she is not domiciled in Country B. She has lived in Australia since 2015, become a permanent resident, expressed an intention to remain living in Melbourne as well a desire to purchase another home should she have funds sufficient to do so.[4] Counsel for the wife submitted that she has adopted Australia as her “domicile of choice”, evinced through her expressed intention to continue residing in Melbourne permanently. The wife’s expressed intention to reside permanently in Australia is consistent with s 10(2) of the Domicile Act1982 (Cth) which relevantly provides:
The intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his or home indefinitely in that country.
[4] Wife’s affidavit filed 19 January 24, paragraphs 3, 24 and 55.
Counsel for the wife submitted that in circumstances where the wife has expressed her intention to continue to reside permanently in Melbourne and adopted Australia as her domicile of choice, Country B’s legislation would not apply to her, and the court there would lack jurisdiction to make property orders.
There was no expert evidence about the issue of domicile. Because it is not possible to determine whether or not the Country B court will accept the wife has acquired a domicile of choice in Australia, I will address the considerations referred to in Yeo & Huy (No. 2) [2012] FamCA 541. That approach is consistent with the submissions of both counsel, noting that the husband’s counsel submitted that the High Court of Country B has prima facie jurisdiction to hear the dispute.
Whether each court will recognise the others orders and decrees
According to the single expert, reciprocal enforcement of judgments “does not apply between [Country B] and Australia, not even when there is a monetary judgement”.[5] There are currently no reciprocal agreements between Country B and Australia in regard to the division of assets, and Country B will not enforce an Australian court order pertaining to asset division if property is located in Country B.
[5] Single expert witness affidavit filed 4 December 2023, paragraph 57.
Counsel for the wife submitted if the financial litigation is conducted in Australia, the lack of reciprocity and enforcement by the Country B court was not problematic for the wife, because the relief she sought was limited to assets in Australia.[6]
[6] Wife’s written submissions filed 7 February 2024, paragraph 34(a).
At paragraph 56 of the single expert report filed 4 December 2023, it is noted that:
[Country B] Courts may in their discretion to decline to make orders in rem over foreign assets if there are concerns on whether the orders can be effectively enforced, especially where parties are not in [Country B].
As to the husband’s stated position, counsel for the wife contended the lack of reciprocity and enforcement highlights the futility of the husband litigating in Country B, when he has indicated he wishes to retain Australian assets.[7]
[7] Wife’s written submissions filed 7 February 2024, paragraph 34(a).
Notwithstanding the lack of reciprocity and recognition, according to the single expert “a [Country B] court can deal with foreign assets by making orders in personam against the spouse who is a party and is within jurisdiction or at least subject to the jurisdiction of the [Country B] court”.[8]
[8] Single expert witness affidavit filed 4 December 2023, paragraph 53.
In making orders in personam, the Country B court can include the value of foreign assets into the pool of matrimonial assets within Country B and order a division based on that pool, without making orders requiring the transfer or sale of foreign assets.
Further, the single expert opines that “coercive powers can be brought to bear on the parties who remain resident within the jurisdiction to compel compliance”.[9]
[9] Single expert witness affidavit filed 4 December 2023, paragraph 55.
Counsel for the wife submitted any such enforcement would be oppressive to the wife if she returned to Country B to visit relatives, and determination by the Country Bn court could only be achieved at great prejudice to the wife.
Which forum can provide more effectively for a complete resolution of the matters involved in the parties controversy
In this case, the Australian court has jurisdiction for both final parenting and property adjustment matters, thus can determine all controversies in the one hearing. Because the wife is only seeking relief against Australian property, there are no issues of enforcement outside Australia.
As previously noted, counsel for the husband properly conceded that the appropriate forum for parenting proceedings is this Court. Therefore, the court in Country B would only be appropriate to resolve the divorce and financial controversy.
It would be open to the court to bifurcate proceedings so that this Court could deal with parenting matters and the Country B court could adjust the parties respective property interests.
The order proceedings were instituted, the stages reached and costs incurred
On 22 November 2022, the wife’s solicitors wrote to the husband’s Country B solicitors advising they acted on behalf the wife and requested disclosure of financial documents by the end of March 2023.
On 17 April 2023, the wife filed an Initiating Application in this Court seeking financial relief as she contends this Court is the appropriate forum to determine her application.
On 23 April 2023, the husband’s Country B solicitors wrote to the wife’s solicitors advising that the husband was “in the process of searching for an Australian lawyer to advise him on the matter”.[10]
[10] Wife’s affidavit filed 22 May 2023, paragraph 8.
On two dates in early 2023, the husband filed an application in the Country B court which was returnable in mid-2023. His lawyers did not advise the wife of any such application in the letter to the wife’s lawyers of 23 April 2023. The Country B proceedings were served on the wife in mid-2023.
The proceedings in this Court are currently at a threshold stage, whereby the court is being asked to determine whether Australia or Country B is the proper forum. Once that issue is resolved, if the proceedings are to be determined in Australia, the matter will progress through the usual case management pathway in accordance with the relevant Central Practice Direction.
If the court determines Country B is the appropriate forum, the single expert states there are no compulsory procedural hearings in Country B.[11] However, once the “petition is filed, matters are closely case managed by the courts, with regular dates fixed to ensure compliance of directions towards setting the matter for final hearing”.[12] The estimated time for setting the matter down for final hearing in Country B is dependent on the extent of interlocutory applications including discovery and other matters. A general timeline would be between nine to twelve months from the date of filing the petition.[13]
[11] Single expert witness affidavit filed 4 December 2023, paragraph 46.
[12] Single expert witness affidavit filed 4 December 2023, paragraph 46.
[13] Single expert witness affidavit filed 4 December 2023, paragraph 50.
The proceedings in Country B are similarly in their infancy. The wife was required to file responding material by 7 February 2024, and the matter was otherwise listed for a directions hearing.
At paragraph 52 of the single expert report filed 4 December 2023, it is estimated the legal costs each party would incur in Country B proceedings would be approximately AUD8,044 - AUD64,422 depending on the seniority of counsel, complexity of the case, and time spent on the case.
The husband deposes he has been advised by his lawyers in Country B that it will cost approximately AUD17,000 - AUD25,000 to litigate the matter to full trial in Country B.[14] As at the date of filing, he had spent the equivalent of AUD26,052 with his solicitors in Country B.[15]
[14] Husband’s affidavit filed 25 January 2024, paragraph 89.
[15] Husband’s affidavit filed 25 January 2024, paragraph 89.
As to the costs in Australia, the wife’s Cost Notice filed 7 February 2024 estimates her expected future costs up to the conclusion of the matter to be approximately AUD100,190. The husband’s Cost Notice filed 7 February 2024 estimates his expected future costs to the conclusion of the matter to be AUD97,320. The husband deposes to having already spent AUD35,007 on his Australian solicitors.[16]
[16] Husband’s affidavit filed 25 January 2024, paragraph 88.
The issues on which relief might depend on each of the jurisdictions
The financial proceedings in Australia will be determined under s 79 and other relevant provisions of the Family Law Act 1975 (Cth).
The financial proceedings in Country B will be determined under the relevant provisions of the relevant Act.
The single expert report filed 4 December 2023 identifies substantial differences between the approach adopted by the two jurisdictions.
Section 76 of the relevant Act empowers the Country B court to divide any assets or to sell any assets acquired by the parties during the marriage and to divide the proceeds, irrespective of whether the assets are registered in the joint or sole name of the parties.
The factors relevant to division of assets are set out in s 76(2) of the relevant Act. In summary, the court must have regard to the contribution of each party whether monetary or in-kind to looking after the home or caring for the family, regardless of who acquired the property; the debts owed by either party which were contracted for their joint benefit; the needs of the minor children of the marriage; and the duration of the marriage.
In Country B, the period of a de facto relationship is not recognised, and assets acquired prior to the marriage are not, except in limited circumstances, generally included for adjustment by Country B courts.
There are limited circumstances where property owned prior to marriage may be adjusted under s 76(5) of the relevant Act. These include where the non-owner can prove a direct contribution to the asset and where that asset is “substantially improved by him/her or by the joint efforts” or when a “marital home… was purchased in contemplation of the parties eventual marriage” (s 76(5) of the relevant Act). This was confirmed by the single expert witness.[17]
[17] Single expert witness affidavit filed 4 December 2023, paragraph 16.
In this case, the two properties in Australia were purchased in 2016, well before the marriage, and according to the husband, he contributed all purchase funds.
As to assets acquired after separation but before divorce, the single expert opines “these properties would arguably still amount to matrimonial assets as they were acquired during the continuation of a valid marriage”.[18] However, after referring to relevant authority, the single expert concludes at paragraph 18 of the report filed 4 December 2023 that:
If the court did consider the post separation properties to be matrimonial assets, it is my opinion that the assets will be divided based on the extent of the parties’ contribution post separation, towards acquiring the properties. This contribution may be direct or indirect.
[18] Single expert witness affidavit filed 4 December 2023, paragraph 17.
When adjusting interests in property, an Australian court does not require a nexus between contribution and an asset. Counsel for the wife contended all property is considered available for adjustment and relevant factors, including contributions (both financial and non-financial) and other factors pertinent to alteration of interests are to be considered holistically.
Additionally, Australian law considers post-separation contributions relevant in adjusting property interests. According to the single expert, this may not be the case in Country B, and any property acquired by the husband between now and any final determination could be ignored because of lack of contribution by the wife.[19]
[19] Single expert witness affidavit filed 4 December 2023, paragraph 17.1. Citing Uma Sundari Muthusamy v Kanniappan Thiruvengadam [2010] 1 CLJ 125.
Counsel for the wife submitted the matters for a court to consider in dividing assets in Country B is far more restrictive than those under the Family Law Act 1975 (Cth). There is no consideration of s 75(2) factors which is relevant in the present case, and no equivalent of s 75(2) of the Family Law Act 1975 (Cth) which requires a court to consider any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account. The Country B legislation is more prescriptive, and less discretionary than the Australian equivalent. I accept that submission. There would clearly be a juridical advantage to the wife if proceedings are conducted in Australia and an advantage to the husband if proceedings are conducted in Country B.
Disclosure obligations in Australia are far more stringent and predate the issue of proceedings, unlike Country B.
Counsel for the husband submitted that although the wife does not seek orders against any of the assets held by the husband in Country B, in order to pursue her application for property settlement in Australia, these assets will require identification and valuation to persuade the court that it is just and equitable to make the orders sought by her.
It would be significantly onerous and unnecessarily costly to undertake discovery and valuation in Country B and have reports translated, to enable the Australian property proceedings to progress.
The connection with the parties and their marriage with each of the jurisdictions
As previously noted, both the husband and wife are Country B citizens and permanent residents of Australia. Their son was born in Country B, is a Country B citizen and resides in Australia. The wife lives in Australia with their son and deposes to her intention to make Australia her permanent home.[20]
[20] Wife’s affidavit filed 19 January 2024, paragraph 24.
Subsequent to commencing a de facto relationship in Country B in 2009, the parties commenced living in Australia during 2015. They therefore lived in Country B for a period of approximately six years, during which time the husband worked in his business in Country B and the wife sold an apartment and applied the proceeds of sale to purchase a boutique in a suburb of City J.
After arrival in Australia, in 2016 the parties purchased two properties in Town F where they ran a farm. There was no dispute that the funds used to purchase the properties came from the husband’s Country B business and/or sale proceeds of property owned by the husband in Country B.
During their residency in Australia, the husband regularly travelled between Country B and Australia for work, including managing several businesses located in Country B. The husband also deposes to visiting Country B at least once per year to visit extended family members who still reside in Country B.
In 2018, the husband and wife returned to Country B to marry in the company of family and friends and their marriage was registered in Country B.
Around late 2022, the husband returned to Country B to care for his elderly mother, although he deposes to an intention to return to Australia to conduct future businesses.[21]
[21] Husband’s affidavit filed 25 January 2024, paragraphs 34, 42 and 109.
The parties lived together in Australia for seven years until 2022, and thereafter the wife has remained in living in Australia until the present time. The parties have purchased property in Australia and conducted businesses here.
The assets in Country B are under the sole control of the husband and the majority of his interests were acquired prior to the marriage in 2018. They are not assets the single expert considers the court will adjust in property proceedings.
The resources of the parties and their understanding of language enabling the parties to participate in respective proceedings on an equal footing.
The single expert states pursuant to Country B legislation, all court proceedings in Country B shall be in the country’s language.[22] The court may also allow for proceedings to be conducted partly in the country’s language and partly in English, upon considering the interests of justice in the proceedings.
[22] Single expert witness affidavit filed 4 December 2023, paragraph 44.
Both parties are Country B citizens by birth and native speakers of the country’s language. In the husband’s affidavit he states that he does not speak English well and requires an interpreter in Australia, whereas the wife does not require an interpreter.[23] Both parties can participate in proceedings in Country B without the need for interpreters.
[23] Husband’s affidavit filed 25 January 2024, paragraphs 75 and 101.
As the husband has lived in Australia for a considerable period of time and deposes to his intention to return to Australia and establish a business, it is reasonable to infer that he holds some degree of proficiency in English. The provision of an interpreter in the Australian courts is reasonably straightforward.
Discussion and conclusion
The wife contends that Australia has jurisdiction in relation to divorce and property, however, it is uncertain whether Country B has jurisdiction because of her acquisition of a domicile of choice in Australia. This issue is referred to above.
The husband submits Country B has prima facie jurisdiction in relation to divorce and property proceedings between the parties. There is no expert evidence about how the Country B court would deal with the wife’s domicile of choice. Both parties agree that Australia is the appropriate forum for the parenting proceedings.
The husband contends that even if parenting matters are dealt with in this jurisdiction, there is no reason why the divorce and property matters should not be bifurcated and conducted in Country B. The wife contends that all proceedings should be conducted in Australia.
Both parties agree assets of the parties are located in Country B which includes the husband’s business interests, property and possibly business interests he has disposed of to third parties. They also agree there are assets located in Australia as outlined earlier in these reasons.
Because the wife seeks orders only in relation to Australian assets and currently does not make any claim against assets situated in Country B, there are no reciprocity or enforcement issues arising from determination by an Australian court. The husband seeks orders in relation to both Country B and Australian assets in the Country B courts, which if successful, would give rise to enforcement issues in Australia.
Counsel for the husband submitted the most important factor to consider in reaching my determination is the connection of both parties with Country B and the location of what he considers to be the majority of assets in that country. He urged me to bifurcate the proceedings so that the Australian court will be seized of parenting proceedings and the property and divorce proceedings will occur in Country B.
Counsel for the husband sought to rely on my decision of Kornfeld & Weinger [2023] FedCFamC1F 817 to contend the proceedings could readily be bifurcated. The facts of Kornfeld can be distinguished from this case for many reasons. These include the wife sought relief against assets in the United Kingdom, whereas the wife in this case does not seek relief against any overseas assets, the assets in the United Kingdom included a superannuation pension fund, over which an Australian court would not be able to make any effective orders and the wife foreshadowed the necessity to issue subpoena in the UK to obtain financial information about the husband’s family trust and business interests. Furthermore, if at the conclusion of Australian property proceedings, the wife sought orders to obtain orders referable to a UK pension fund, she would be required to institute a further application to the UK courts to do so. None of those issues arise in this case to warrant bifurcation of the proceedings. It is clearly desirable for one court to effectively provide for complete resolution of all matters involved in the parties’ controversy following the breakdown of their marriage.
I accept the submissions by counsel for the husband that even if the wife’s relief is limited to Australian assets there would need to be disclosure and valuation of some, if not all the assets in Country B, in order to for her to persuade a court that her retention of the Australian assets would be just and equitable.
Whether discovery and disclosure relevant to the Country B assets is a complicated and protracted process is really in the hands of the husband. He has the ability to make appropriate discovery and disclosure quickly and transparently. I do not accept that valuing assets in another jurisdiction is particularly onerous or burdensome for either party and it is a common occurrence in property matters in this Court. Because of the advances in electronic trials post Covid-19, in the event of a valuation dispute, there would be no need for a witness to travel to Australia to give evidence, because that evidence could be given electronically.
The husband deposes he will return to Australia to live at some time in the future. It is therefore reasonable to infer he would be able to return to Australia if required, to attend a final hearing of the dispute between the parties. He is also a permanent resident of Australia. With leave of the relevant court, he would also, presumably be able to attend interlocutory disputes electronically, as he did with this hearing. It is also a relatively simple process to arrange for an interpreter to assist the husband, even if he is located in Country B.
It is desirable for one court to effectively provide for complete resolution of all matters involved in the parties controversy following the breakdown of their marriage, and the only court able to do so is this court.
In my view, the continuation of financial and divorce proceedings in this Court would not clearly be “oppressive, in the sense of seriously and unfairly burdensome… and vexatious in the sense of productive of serious and unjustified trouble” (Henry at 576).
The relevant test I am required to apply is not a comparison of the advantages and disadvantages of each jurisdiction, but rather to decide whether the Australian court is a clearly inappropriate forum.
Taking into consideration all relevant matters and in particular that Australia is the only court which would be able to hear parenting, financial and divorce applications, I am satisfied Australia is not a clearly inappropriate forum to determine the property and divorce applications.
I will make relevant orders injuncting the husband.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 5 March 2024
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