Monette and Monette
[2019] FamCA 513
•2 August 2019
FAMILY COURT OF AUSTRALIA
| MONETTE & MONETTE | [2019] FamCA 513 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings |
| Family Law Act 1975 (Cth) |
| Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 Henry & Henry [1996] HCA 51 Lan & Hao (No. 2) [2017] FamCAFC 175 |
| APPLICANT: | Ms Monette |
| RESPONDENT: | Ms Monette |
| FILE NUMBER: | SYC | 6936 | of | 2013 |
| DATE DELIVERED: | 2 August 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 18 June 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey |
| SOLICITOR FOR THE APPLICANT: | Vizzone Ruggero Twigg Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Alexandre-Hughes |
| SOLICITOR FOR THE RESPONDENT: | Dezarnaulds Basten |
Orders
The wife’s Initiating Application filed 8 June 2017 is stayed permanently.
All associated Applications in a Case are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Monette & Monette has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6936 of 2013
| Ms Monette |
Applicant
And
| Ms Monette |
Respondent
REASONS FOR JUDGMENT
The matter of Monette was an application by the respondent husband to stay the wife continuing proceedings in Australia.
Ms Alexandre-Hughes of Counsel appeared for the husband. Mr Batey of Counsel appeared for the wife.
The evidence I read was as follows:
a)For the husband:
i)Response, filed 19 June 2017;
ii)Application in a Case, filed 11 May 2018;
iii)Affidavits, sworn 21 July 2017, 19 February 2018 and 11 June 2019;
iv)Affidavit of the husband’s solicitor, Ms A, sworn 20 February 2018, 11 May 2018 and 17 June 2019;
v)Affidavit of a single expert with witness Ms B, filed 10 September 2018; and
vi)Husband’s Exhibit 1 was his case outline.
b)For the wife:
i)Initiating Application, filed 8 July 2017;
ii)Response to an Application in a Case, filed 5 December 2018;
iii)Affidavits of the wife, sworn 5 December 2018 and 18 June 2019;
iv)Affidavit of Mr F, sworn 5 July and 7 June 2019;
v)Wife’s Exhibit 1 was her case outline;
vi)Wife’s Exhibit 2, husband’s Westpac Banking account ending …48; and
vii)Wife’s Exhibit 3, husband’s Westpac Banking accounts ending in numbers …14.
c)Court Exhibit 1 was the Affidavit of the Court Expert Ms B dated 10 September 2018.
It is the husband’s case that the Court should permanently stay the present proceedings commenced in the Sydney Registry of the Family Court of Australia on 8 June 17 on two grounds.
Firstly, that the Australian Court is a clearly inappropriate forum for the following reasons:
a)A final decision of the District Court of City K, France of 3 April 2017 disposed of a large number of issues in relation to the parties’ matrimonial property. The balance of the property dispute between the parties is pending before that same Court. The wife commenced proceedings in France in 2011 and the husband reinvigorated them in 2014. Over seven years of litigation, the wife has never raised any argument of the jurisdiction the French Courts. The facts of the case present with stronger connections to France than to Australia.
The second ground is that the wife’s conduct amounts to an abuse of process on the following facts:
a)The wife commenced proceedings in France in 2011 and the present proceedings in Australia in June 2017 after the District Court of City K had ruled on a final basis on a number of property issues between the parties in April 2017;
b)Both the husband and wife have continued proceedings before the City K Court. The wife’s submissions filed in May 2019 before that Court and the five-pages of orders she seeks, make it clear she wishes to continue to fully litigate the proceedings in France; and
c)It is the husband’s contention that on the balance of probabilities, the wife has no genuine intention to fully litigate the present proceedings in Australia and has rather commenced the proceedings in order to be in a position to issue subpoenae in Australia, particularly as she claims the husband has failed to disclose the totality of his significant assets, including monies in bank accounts.
The wife resists the stay application on the following grounds:
a)That the decision of the City K Court on 3 April 2017 was an interim decision only and did not deal with the disposition of any property on a final basis;
b)That the Australian Courts are seized of jurisdiction;
c)That the husband has failed to disclose his significant assets, including cash in banks and only by virtue of the subpoenae process available in Australia has the wife been able to ascertain previously undisclosed holdings and bank accounts of the husband; and
d)That due to the husband’s status in France, the Court process, his conduct generally, the wife’s age and state of health and fear of returning to France, in the interests of justice, Australia is the more appropriate forum to deal with the totality of the parties entitlement to their matrimonial property.
It is an agreed fact that the Family Court of Australia is seized of jurisdiction to deal with the matrimonial dispute between the parties in this matter. The husband states that the Court ought not to exercise that jurisdiction.
The law is clear and well-settled and begins for my purposes with the decision of Voth v Manildra Flour Mills[1], which was a matter concerning a claim for negligent advice.
[1]Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55.
This decision is authority that in matters such as this, the test is whether jurisdiction sought to be enlivened by a party is a clearly inappropriate forum.
In that decision, the Court stated that there was an obligation on a domestic Court in this country to exercise jurisdiction confirmed upon. However, if the Court’s conclusion is that the Local Court is a clearly inappropriate forum, that is a persuasive justification for the Court in refraining from exercising its jurisdiction.
The decision held that the party seeking the stay has the onus to establish the stay is appropriate.
The High Court decision of Henry & Henry[2] also dealt with a stay of proceedings of a matrimonial cause being a divorce. The wife had commenced proceedings for divorce in Monaco and the husband had commenced proceedings for divorce in Australia.
[2]Henry & Henry [1996] HCA 51.
The majority in Henry[3] adopted the Voth[4] principal at paragraph 25 as propounded by Justice Dean and as follows:
The stay should be granted if the Local Court is a clearly inappropriate forum which will be the case 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. Discussion of the relevant connecting factors and legitimate personal or juridical advantage provides valuable assistance. These last two factors although relevant are not decisive considerations.
[3] Above, note 2.
[4] Above, note 1.
Their Honours were clear that it may be misleading to give undue relevance to the prima facie right of a party who has invoked to jurisdiction to insist upon its exercise and that such a factor may only be relevant in a small number of matters. Further, their Honours said Voth[5] was authority for the proposition that the substantive law of the forum is a very significant factor in the exercise of the Court’s discretion but the Court should not focus upon that factor to the exclusion of all others.
[5] Above, note 1.
Stated at paragraph 33:
There may be more compelling considerations in favour of a stay of the local proceedings, if as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings and the proceedings are between the same parties with respect to the same issue a controversy. This principle is consistent with the facts in this matter.
Their Honours stated at paragraph 35:
It is prima facie vexatious and oppressive in the strict sense of those terms to commence a second or subsequent action in the Courts of this country if an action is already pending with respect to the matter in issue in another jurisdiction. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie the, the continuation of one or the other should be seen as vexatious or oppressive within the Voth[6] sense of those words.
[6] Above, note 1.
Their Honours went on to state at paragraph 36:
It does not follow that because one or other of the proceedings is prima facie vexatious or oppressive within the Voth[7] sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question of whether the local proceedings are oppressive in this sense of ‘seriously and unfairly burdensome, prejudicial or damaging’, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment’. And it also follows the court should strive, to the extent that Voth[8] permits, to avoid that situation.
[7] Above, note 1.
[8] Above, note 1.
Their Honours described the essence of the proceedings between the parties in Henry[9] as follows:
Although there may be differences in procedures and available remedies and in the substantive law with respect to marriage and divorce in different countries the proceedings will ordinarily be concerned with the same controversy. Disputes relating to property and maintenance will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.
Although the wife initially commenced proceedings for judicial separation in Monaco and only later commenced proceedings for divorce, both proceedings were in essence proceedings with respect to their marital relationship. Clearly, it was the same marital relationship which was the subject of the divorce proceedings bought in Australia by the respondent, and although it not may not be quite so clear, the property proceedings instituted by the respondent in the Family Court are but aspects of this controversy with the appellant as to their marital relationship. It may have been otherwise if they were no longer married but so long as their marriage subsists, their dispute with respect to property is a dispute as to the rights and obligations arising out of their marital relationship and those which should attend its dissolution.
[9] Above, note 2.
This is not same fact in these proceedings as the wife commenced proceedings for property settlement in Australia after the divorce had been granted in 2017 in City K.
Their Honours described the considerations relevant to a stay of proceedings at paragraph 39 as follows:
Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, a question does not arise unless the courts of the respective countries have jurisdiction with respect to the parties in the marriage, and if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine the question.
However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia that will ordinarily dispose of any suggestion that the local proceedings should not continue.
However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in the other country and, if so, the relative ease with which they can be done.
As well it will be relevant to consider which forum can provide more effectively complete resolution of the matters involved in the parties’ controversy.
Other considerations include the order in which the proceedings were instituted, the stage in which they have reached and the costs that have been incurred.
It will also be relevant to consider the connection of the parties and their marriage with each other with each of the jurisdictions and to have regard to the issue on which relief might depend in those jurisdictions.
Moreover, it will be relevant to consider whether, having regard to the resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, 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.
Ultimately, their Honours found that the Full Court had not approached the matter on the correct basis and the appeal was allowed. The wife’s application for a stay of the Family Court proceedings was ultimately granted when the matter was remitted and re-heard.
I was referred by Counsel for the husband to a decision of Justice Stevenson of Pierson v Romilly[10]. That decision has many factual similarities with this matter. The parties had signed a prenuptial agreement in France and their divorce had been granted by a French Court. The wife had commenced proceedings for property settlement in Australia and had also engaged in the litigation in France after this event. The husband sought the Australian proceedings be stayed. The question for or her Honour as for me was, “whether the Australia Court is a clearly inappropriate forum’. The law of France is the law of France for my purposes.
[10]Pierson & Romilly [2019] FamCA 259.
Her Honour recited the relevant parts of the decision in Henry[11] and concluding with the statement “that a determination as to a clearly inappropriate forum will depend on the general circumstances of the case, taking into account the true nature and in full extent of the in the issues involved.”
[11] Above, note 2.
As the jurisdiction of both countries to determine the matter was conceded this is an agreed fact. Nor was any argument raised that either country would not recognise an order or decree of the other or, therefore, I find each party agrees either country will recognise an order or decree of the other country.
I accept there may have been an issue of enforceability of the French orders in Australia, however, the husband is agreeable to transferring the properties in City E to the wife and the remaining property is either in City K or France where there is no issue of enforcement.
At paragraph 34, Her Honour recited the facts of the case which bears significant similarities the facts of this case.
Her Honour says at paragraphs 34, 35 and 36:
As part of the divorce proceedings a court in France is order the husband pay to the wife’s “compensatory allowance” of Euro 250,000 and he has made this payment.
The evidence is that the division of the parties proper is a further step in the French proceedings. As recorded above, French Courts could have made orders “for preferential allocation” to the wife of certain properties with the parties needing to take certain steps with the assistance of a notary to advance the litigation.
Her Honour stated at paragraph 37:
The experts agree that a period of 6 to 12 months will be required for a notary in France to meet with the parties and provide a report as to the points of agreement and disagreement. They agreed that an additional period of 1 to 2 years will be required for a judge to rule on points of disagreement and a similar time for disposition of any appeal. Thus, while the proceedings in France are advanced I accept they have not concluded. This is the same factual situation as the proceedings before me.
Her Honour went on to discuss the consequence of preferential allocation from the expert opinion before and found:
Preferential allocation of properties means a spouse benefiting from this allocation is entitled to become the owner of this property. This means that the other spouse can no longer request to become the sole owner of the property.
Her Honour determined that this meant that substantial steps had been taken by the French Court in terms of consideration and alteration of the comparative financial circumstances of the parties particularly when one had regard to the fact that a compensatory order (spouse maintenance) had also been made by the French Courts.
These are the same facts as in the matter before me.
After reviewing all the evidence and applying the principles in Henry,[12] her Honour found that the husband would suffer real prejudice if the wife was permitted to continue her litigation in Australia and that “she had delayed too long and that having participated in the French litigation to such an extent that she had there should be a permanent stay”.
[12] Above, note 2.
I have also found assistance in the Full Court’s decision of Lan & Hao (No. 2)[13]. This matter concerned an appeal from the primary judge’s refusal to grant an anti-suit injunction restraining the husband from pursuing proceedings in China. Their Honours discussed the principles relating to anti-suit injunctions restraining pursuit of proceedings in foreign jurisdictions.
[13]Lan & Hao (No. 2) [2017] FamCAFC 175.
At paragraph 36, their Honours commence to discuss the principles. The wife based her claim on the Court’s inherent or implied jurisdiction to protect its processes rather than the equitable jurisdiction to restrain unconscionable conduct or the conscientious exercise of the legal right. Little turns on that matter in these proceedings.
The Court made the following findings:
a)That as the primary judge had found that the proceedings had been commenced in Australia by the wife in a not inappropriate forum, the focus was firmly fixed on the proceedings that were ongoing in China.
b)Henry[14] is authority for the proposition that the mere existence of proceedings in two different countries at the same time does not of itself constitute vexatious or oppressive conduct, although this is highly relevant to the question whether the local proceedings are 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 and that the court should strive to prevent that situation.
[14] Above, note 2.
At paragraph 41:
“A very significant issue in a party seeking an anti-suit injunction is whether the controversy between the parties is the same in both jurisdiction, whether or not complete relief is available in the local jurisdiction and whether there is nothing to be gained in the overseas proceedings or whether, on the other hand, the overseas proceedings will give rise to additional or other remedies”, and I add the words give a juridical advantage.
Other matters which must be considered:
a)Whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth[15] sense of those terms, namely that they are productive of serious and unjustified trouble and harassment or seriously and unfairly burdensome prejudicial or damaging;
[15] Above, note 1.
b)Whether both countries have jurisdiction to entertain the application;
c)If there is a question as to jurisdiction of the foreign Court, it may be necessary to adjourn the local proceedings to enable the foreign Court to determine the question;
d)If both have jurisdiction it will be relevant to consider whether each will recognise the other’s orders and decrees;
e)If an order of the foreign Court will not be recognised in Australia that disposes of any suggestion the local proceedings should not continue;
f)If the orders of the foreign Court are will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in the other country and the ease with which this can be done;
g)It will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties controversy;
h)The order in which the proceedings were instituted the stage they have reached and the cost incurred;
i)It is relevant to consider the connection of the parties and their marriage which each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions;
j)It is relevant to consider whether having regard to their resources and their understanding of language are the parties able to participate in the proceedings on an equal footing; and
k)The list is not exhaustive. Rather, 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.
In Henry[16] their Honours had opined there may be a difference in determination if parties were no longer married. Their Honours in Lan & Hao[17] said at paragraph 64, “we confess that we see little in that difference”.
[16] Above, note 2.
[17] Above, note 13.
What are the relevant facts and circumstances of the matter in the proceedings before me?
Going now to the chronology.
The wife was born in 1939 in Australia and the husband in 1942 in France.
The parties married in 1966 in City K, the wife commenced to reside in City K, France in 1960.
At marriage, the matrimonial assets were governed by separation of property contract which the parties that entered into prior to the marriage under the law of France.
Their first son, Mr F, was born in 1967 and Mr G, in 1973.
On 25 October 1994, the parties terminated the contract of separation of property and entered into a new marriage contract called “a universal community contract” under the law of France.
In about 2000, the parties separated but lived under the one roof until 2012 in France.
On 25 March 2012, the husband filed proceedings in France, called the first divorce proceedings. The proceedings were ultimately discontinued.
On 21 December 2011, the wife filed the second set of divorce proceeding in City K, called the second divorce proceedings.
Orders were made in respect of that application by a judge. The husband appealed the procedural orders and on appeal the orders were confirmed on 23 November 2012.
On 22 November 2013, the wife filed an Initiating Application in the Family Court in Australia. The application sought orders for the wife to issue subpoenae to Westpac Banking Corporation, and procedural orders to obtain a valuation of the husband’s property at Suburb H.
No application was sought for final relief by way of property adjustment or for a divorce.
On 13 May 2014, the Australian proceedings were discontinued by consent and it is noted in those orders that the husband did not and continues to not concede this Court’s jurisdiction in relation to his matrimonial proceedings.
After this event, the husband enlivens the divorce proceedings in City K which had been commenced by the wife in 2011 and he does so on 10 October 2014.
On 23 October 2014, the District Court of City K makes interim orders granting the wife an advance out of the property pool and modifies an interim maintenance order to a monthly payment.
In July 2016, the wife relocates to Australia.
On 3 April 2017, the City K Court gives a contradictory judgment which, for my purposes, is a judgment after a contested hearing in relation to the parties’ matrimonial cause and makes the following orders:
a)Grants a divorce;
b)Notes that the rules applicable to the property distribution were as per the “the universal community contract” made 25 October 1994 under French law;
c)Noted the parties’ agreement for the allocation of five properties comprised within the matrimonial pool and this is called under French law “preferential allocation”. The agreement was that the husband would retain the marital home the wife received two properties in France and two properties in Australia.
d)Ordered the husband pay to the wife a maintenance payment called “prestation compensatoire” of about AU$709,000;
e)Ordered the husband to pay damages as the divorce was his fault due to adultery of about AU$20,000;
f)Ordered that a liquidation of the matrimonial property pool be carried out in accordance with the Court’s ruling by a notary selected by the president of the District Chamber of Notaries of France taking into account the agreed preferential allocation of property and the rules of the marriage contract; and
g)Ordered the husband to pay costs.
The husband asserts this was a final and binding order. The wife asserts this was but an interim procedural step in the matrimonial proceedings.
On 5 May 2017, the husband pays the maintenance and costs order.
On 8 June 2017, the wife files her second Initiating Application in the Family Court of Australia which constitutes the present proceedings seeking relief pursuant to section 79 of the Family Law Act 1975.
On 26 July 2017, the husband files his Response seeking a permanent stay and that he does not accept the jurisdiction of the Australian Court.
On 25 October 2018, a notary in France is selected by the president of the District Chamber of Notaries to carry out the liquidation summons which was decreed by the 3 April 2017 orders and summons the parties to meet to:
a)Implement the allocations of properties recorded in the decision of 3 April 2017; and
b)To proceed to the accounting, liquidation and division of matrimonial pool.
Disputes arise between the parties in relation to step b.
The notary issues a certificate of difficulties.
On 13 December 2018, the husband takes the next step following the notice of difficulties being issued which is to file an application for the judicial division of assets before the District Court of City K seeking that the Court determines the dispute which arose before the notary in October 2018.
On 14 May 2019, the wife files her submissions in reply in relation to the husband’s application of 13 December 2018 and she does not at any stage raise a jurisdictional issue in the City K Court.
The husband asserts the wife’s case is an abuse of process and that she has engaged in proceedings in City K for the division of their property and that those proceedings are ongoing and continuing and will provide a complete and appropriate final outcome for the division of the parties property.
The wife asserts that the City K proceedings are at an interim stage only and that if she is unable to pursue her application in Australia that due to the husband’s conduct, his wealth, his influence in City K she will not receive a fair division of the matrimonial property as she will not be able to ascertain his true wealth and has struggled to obtain representation in the City K Courts.
The affidavit of the expert witness in this matter will be crucial to my determination. There is no doubt significant steps have been taken in the City K Court including no less than a preferential allocation of the parties real estate to both , a provision of maintenance to the wife and the granting of a divorce.
What appears now to be in issue is the division of the remainder of the property of the parties to effect an equality of all matrimonial assets in the matrimonial pool as defined by their contract of universal community of property. That had been the subject of the dispute between them before the notary and the notary issued a certificate of difficulties. Consequent upon the issue of the certificate of difficulties the husband has continued the proceedings in City K by seeking an application for the judicial division of assets as the parties could not agree before the notary. The wife has enjoined in those proceedings and did not raise any jurisdictional issue in her 14 May 2019 submission, although she was at that time pursuing her application for division of matrimonial property in the Australian Courts.
On 3 April 2017, the City K Courts ruled that the universal community marriage contract the parties entered into 25 October 1994 is binding on them. Essentially, universal community of property means that all assets of the husband and wife are to be divided equally except for items expressly excluded. The husband asserts his property at Suburb H and an insurance policy which were inherited from his mother are expressly excluded from the matrimonial pool as his mother’s Will specifically made provision for such an exclusion.
Essentially, the wife’s claim that the proceedings should continue in Australia is based upon her assertion that the processes in City K will not allow her to determine what is in the pool of the parties’ community of property.
The husband asserts the decision of 3 April 2017 is final and a certificate was issued by the registry of the Court of Appeal of City K providing for the final character of this judgment and that no appeal had been lodged by either party. This was the judgment that allocated the two properties in Australia and 2 properties in France to the wife and to the husband the former matrimonial home together with payments of damages, maintenance, compensation and costs paid by the husband to the wife.
Additionally, the husband asserts that the final character of the 3 April 2017 decision was accepted by the wife when she filed submission seeking to have a Judge determine the division of the remaining assets given their inability to agree to same before the notary in the Court of City K on 14 May 2019.
In addition, the single expert also refers to the decision of 3 April 2017 as being final.
Going to the Court history.
The first set of proceedings in City K were finalised by order of 3 April 2012. The orders made on that occasion were as follows and were not final orders.
a)Permitted the parties to have separate residences;
b)The husband was to have enjoyment of the marital home for a payment;
c)The wife had two months to leave the marital home;
d)Prohibition from either spouse disturbing the other in the new residence;
e)The return of clothing and personal items to each;
f)Appointed a notary to prepare a plan of liquidation of the marital regime by forming lots to be divided;
g)Permitted the expert appointed to consult a valuer particularly for the properties located in Australia;
h)Appointed a property expert auctioneer to prepare a detailed inventory of the furniture paintings and collectables located in the marital home and to assess their value;
i)Decided as to the responsibility the husband of maintenance payments owed on the basis of duty of support in the amount of 230,000 F. CFP per month;
j)Dismissed the application for advance cost of proceeding proceedings presented by the wife;
k)Allocated to the husband enjoyment of the property at City L, property in Suburb J and enjoyment of furnishings; and
l)Allocated to the wife enjoyment and management of the City M property and the garage, the property in Australian Suburb J, the painting the old man, silverware, china, except that which came directly from the husband’s mothers and the motor vehicle 1.
The husband filed an appeal against this decision.
That appeal was determined on 12 November 2012, where the Court confirmed the non-conciliation order of 3 April 2012 ordered the husband to pay the wife’s non-recoverable costs for the appeal.
The husband filed a further application on 2 October 2014 requesting that the divorce be granted due to a permanent deterioration in the marital relationship the wife countered with a claim it be granted due to his fault.
The divorce and its consequences was granted by ruling of … April 2017, which ruling provided as follows:
a)The divorce between the parties was granted in … April 2017 due solely to the fault of the husband;
b)The preferential allocation of the property located in City K has been ordered to the husband, the properties located in City E Queensland in Australia, in City L and in City M to the wife;
c)The liquidation in the division of the property interests of the spouses has been granted to the President of the District Chamber of Notaries who is to appoint a colleague to proceed with the operations of accounts/liquidation/division;
d)The wife’s request for allocation of the movable property, 11 paintings, has been dismissed;
e)The husband has been ordered to pay his wife the sum of 50 million F. CFP as spousal maintenance and pay the wife the sum of 500,000 F. CFP in damages;
f)Temporary execution has not been granted and request for organisation of an expert relating to the property in Sydney has been rejected; and
g)The husband has been ordered to pay the wife 400,000 F. CFP as non-recoverable costs.
Going to the experts report.
This report consist of a series of questions to and answers by the expert.
At paragraph 1, page 4 the expert opines that the decision of 3 April 2012 was a temporary measure. This is called an interim decision. Thus, the ruling did not rule in a definitive manner and similarly the appeal from that decision was a temporary decision.
At page 5, the expert is asked, “What is the nature of the ruling of 3 April 2017? Does this ruling contain orders regarding the division of family property of the parties definitively?”
Answer:
This ruling terminated any temporary measures previously fixed by the interim orders and allocated property located in City K to the husband, property located in City E Queensland, in City L in France and City M to the wife and that this preferential allocation is final if neither of the parties has not appealed the ruling of 3 April 2017 and neither party has.
Also at page 5, the expert is asked, “based on the evidence provided has the family Court in City K made any decision regarding the final division of the family property?”
Answer:
In its ruling of 3 April 2017 the court ruled in the definitive manner regarding the preferential allocation of the property located in City K to the husband.
The preferential allocation of the property located in City E, in City L in France and in City M to the wife.
The “preferential” allocation is the right that the law grants to one person to have himself declared exclusive owner of a property or an undivided group of properties and it is that person’s responsibility to pay off those who normally expected to participate in the division.
Therefore, the sum by which the holder of this preferential right compensates the joint heir(s) is named a “balancing payment”.
Thus, what had been left to be determined by the notary is the determination of a balancing payment to one of them to ensure they receive an equality of the property covered by their universal community of property marriage contract.
As the expert says at paragraph 9, in the event of disagreement regarding the accounting, liquidation and division to be carried out by the notary, it will be the responsibility one of the parties to take the matter back to a judge of the Family Court. This is what the husband did on 13 December 2018 and the wife joined in that proceeding in 14 May 2019.
It is clear from the expert’s report that the ruling of 3 April 2017 is definitive if it is not subject to appeal and no appeal has been lodged. Thus, the decision relating to damages, spousal maintenance, preferential allocation of property and costs are definitive rulings as they result from the 3 April 2017 ruling which has not been subject to an appeal. The wife took no step to appeal.
At paragraph 17, the expert states that it is possible to exclude bequeathed property which had an express proviso not to become community property, from a contract of full community of property.
At paragraph 19, the expert states it is quite possible that bequeathed property does not form part of community property under a contract of full community of property.
In her supplementary report, after having received the husband’s mother’s Will, the expert stated that the assets which came to the husband from his mother did not form part of the community of property.
At paragraphs 20 and 21, the expert explains that it would not be possible to now contest the validity of the contract the parties entered to have community of property laws applied to their assets upon their marriage breakdown. The husband has excluded the Suburb H property and an insurance policy from the contract of community of property as it would seem he is entitled so to do.
At paragraph 29 and 30, it is clear that orders made in City K can apply to property outside of City K.
At paragraph 33, the expert states that the wife has not contested the nature of the matrimonial regime rather its substance, the contested insurance policies she asserts should be included, for example.
Applying these circumstances of the case to the law and repeating and using the principles enunciated in Lan & Hao.[18]
[18] Above, note 13.
A very significant issue for a party seeking an anti-suit injunction is:
a)Whether the controversy between the parties is the same in both jurisdiction;
b)Whether or not complete relief is available in the local jurisdiction;
c)Whether there is nothing to be gained in the overseas proceedings; and
d)Whether, on the other hand, the overseas proceedings will give rise to additional or other remedies and I add the words, give a juridical advantage to that party.
Other matters which must be considered:
a)Whether having regard to the controversy as a whole the Australian proceedings are vexatious or oppressive in the Voth[19] sense of those terms namely that they are productive of serious and unjustified trouble and harassment or seriously and unfairly burdensome prejudicial or damaging consequences;
b)Whether both countries have jurisdiction to entertain the application;
c)If there is a question as to jurisdiction of the foreign court it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question;
d)If both have jurisdiction it will be relevant to consider whether each will recognise the others orders and decrees;
e)If an order of the foreign court will not be recognised in Australia that disposes of any suggestion the local proceedings should not continue;
f)If the orders of the foreign court are or will be recognised in Australia it will be relevant to consider whether any orders may need to be enforced in the other country and the ease with which this can be done;
g)It will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties controversy;
h)The order in which the proceedings were instituted the stage they have reached and the cost incurred;
i)It is relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions; and
j)It is relevant to consider whether having regard to their resources and their understanding of language are the parties able to participate in the proceedings on an equal footing.
[19] Above, note 1.
The list is not exhaustive. Rather, 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.
On the evidence, it is clear to me the controversy between the parties is exactly the same in both jurisdictions, being what is constituted in the pool of matrimonial property and the division of their matrimonial property.
Complete relief is clearly available in both the City K and Australian Courts. There is evidence that City K will recognise an Australian Court order and that Australia will recognise a City K Court order. The question of enforcement can be an issue although unlikely in this matter.
The majority of the matrimonial property is situated overseas and the two Australian properties in City E are now the wife’s. The property in Suburb H is an asset the husband inherited from his mother’s estate and was not acquired by the parties per se.
There is a juridical advantage to the husband in the proceedings remaining in City K as he has little connection to Australia, lives in City K where the bulk of the personal items are now located, speaks fluent French and has been preferentially allocated the home in City K.
The juridical advantage to the wife of proceedings remaining in Australia is that she now lives in Australia, is an Australian citizen having been born here and asserts she is better able by use of subpoena to determine the extent of the husband’s true wealth. I have little evidence whether the overseas jurisdictions would act upon an Australian subpoena. It may be that assets of the husband that are in City K and/or France would be more amenable to the processes available in those jurisdictions than by use of an Australian process such as a subpoena.
Going to the other matters to be considered.
The parties’ marital relationship was solely in City K.
The parties entered into to 2 contracts in relation to the breakdown of their marriage in City K which is governed by the French law.
The wife commenced the proceedings in 2011 for a divorce.
The husband and wife have been engaged in litigation in City K in relation to their matrimonial dispute since 2011.
As late as 14 May 2019, the wife was engaging in the City K proceedings and answering claims by the husband in relation to their inability to determine the distribution of the personality.
Of the most importance is evidence from the experts opinion that the orders of 3 May 2017 were final, allocated ownership of the parties real estate to each, dealt with the wife’s claim for spousal maintenance together with damages and costs and left only the moveables or chattels to be divided which matter is now before the City K Courts on a contested basis given the parties inability to agree on this division.
From the expert’s evidence, it is clear these are final orders and as there has been no appeal filed thus the only issue to be determined between the parties now is what if any adjustment should be carried out in the items of personality so as to affect an equal division of their community matrimonial property.
The wife now seeks to maintain proceedings in Australia on the very same controversy as has already been determined in great part in City K on a final basis. The fact that the D Street property has been excluded from the matrimonial community property is not relevant in this matter as it is clear French law permits him to so exclude it as he has done.
I see no evidence other than the wife’s claims in her affidavit that the City K proceedings will not result in her being able to determine the true extent of the husband’s wealth and therefore the extent of the community of property. In fact, the City K Court has commented on the “grey areas” of the husband’s financial disclosure and, thus, it is apparent this is a matter the wife has pursued and it has been taken into account in the proceedings thus far. The wife’s claim now that an insurance policy should be included in the community property is a matter she can raise before the Court in City K in the same fashion as she has pleaded the facts before me.
The Westpac bank accounts in the husband’s name she tendered to support her claim of his lack of disclosure occurred in 2013 and may no longer be available, however, she has those records and can use them in her City K proceedings. On the evidence relied upon by the wife, I do not accept her position that without using our subpoena laws or maintaining the Australian proceedings the wife will not be able to find out the true extent of his wealth and the community of property between them.
Both countries have jurisdiction to entertain the application. Similarly, both countries will recognise the others decrees although there can be some difficulty in enforcing an overseas order that is not a factor in these proceedings.
The wife pleads ill-health, however, there is no evidence to support that ill-health other than my having regard to her age which I have. I accept travelling to City K to prosecute her case may be difficult, she may feel apprehensive and concerned as she asserts her husband is a powerful person with much influence and she has struggled to obtain legal representation due to this. Her son, Mr F’s affidavit supports his mother’s position of her ill health and fears of returning to City K. It is clear he is a significant support to her. Although these factors are relevant, they are not persuasive in this matter when one has regard to the totality of the circumstances of the matter and where the wife has obtained legal representation and has continued to participate in the proceedings as shortly ago as 14 May 2019.
The City K proceedings were commenced in 2014, many years prior to the proceedings commenced by the wife in Australia in 2017. They were only commenced after the final orders of … May 2017 in City K were handed down. The wife commenced the City K proceedings in 2011 for a divorce and the husband enlivened the Courts jurisdiction for a property division in 2014. The wife joined in the proceedings accepting the jurisdiction of the City K Courts and continuing to so engage as little time ago as 14 May 2019 never raising the inappropriate forum argument or lodging an appeal to the 3 May 2017 proceedings.
The connection of the parties and their marriage is strongly linked to City K. They were married in City K, lived their married life in City K, had children in City K and holidayed in Australia. The wife is a citizen of Australia the husband a citizen of City K. The connection of City K to this marriage and its incidences is a far stronger connection than to Australia.
The husband’s English is limited, however this would be resolved with an interpreter during a hearing. The Husband is well for his age and has sufficient funds to travel and stay in Australia for any hearing.
As I see the whole of the evidence, City K is the forum that will more effectively provide a complete resolution of the party’s dispute. That forum has determined finally the entitlement of each to their real estate, the wife’s claim for maintenance and damages with only the alteration between them of personality and the like left to be dealt with by the Courts and that process is well under way in City K.
As Justice Stevenson said in Pierson[20] at paragraph 56:
It is my view that the husband would suffer prejudice, if the wife is permitted to continue with her litigation in Australia. I consider that she is delayed too long in commencing these proceedings and participated in the French litigation to such an extent that there should be a permanent stay.
[20] Above, note 10.
Those words equally apply to the facts of this matter.
I have formed the view that the Australian proceedings are vexatious and oppressive in the Voth[21] sense in that they may be productive of serious and unjustified trouble and harassment or seriously and unfairly burdensome, prejudicial and have damaging consequences to the husband and the dispute between the parties.
[21] Above, note 1.
For the above reasons, I find Australia is clearly an inappropriate forum given the extent to which the proceedings in City K have reached, and it would be a significant injustice to the husband in the Voth[22] sense to permit them to continue. Therefore, the husband’s application for a permanent stay of the wife’s application has been made out and I will so order.
[22] Above, note 1.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 2 August 2019.
Associate:
Date: 2 August 2019
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