Moujan and Kimia

[2012] FamCA 150

FAMILY COURT OF AUSTRALIA

MOUJAN & KIMIA [2012] FamCA 150

FAMILY LAW - JURISDICTION

Henry v Henry (1996) 185 CLR 571

APPLICANT: Ms Moujan

RESPONDENT: Mr Kimia

FILE NUMBER: SYC 4507 of 2011

DATE DELIVERED: 5 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 5 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Reimer

SOLICITOR FOR THE APPLICANT: Koffels Solicitors

COUNSEL FOR THE RESPONDENT: Mr Kenny

SOLICITOR FOR THE RESPONDENT: David Legal

Orders

1. That the wife’s application filed 26 July 2011 be stayed pending the determination of the proceedings in Iran (the Judiciary of the Islamic Republic of Iran).

2. Each party has leave to thereafter restore these proceedings on seven days notice. 

THE COURT NOTES:

1. That the husband through his counsel undertakes not to take action in respect of the occupation of … C Street, Suburb S until the elapse of one month from the date of these orders.

2. That the wife through her counsel undertakes not to remove or relinquish or sell or destroy any of the respondent’s furniture, fixtures, fittings, Persian carpets or personal items including photo albums that have been left at

   
   

   … C Street, Suburb S in the State of New South Wales until the matter in Iran is determined and these proceedings have been restored.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4507 of 2011

Ms Moujan

Applicant

And

Mr Kimia

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by the wife on 26 July 2011 in which she seeks final and interim property orders.  The husband filed a response on or after

   
   

   7 November 2011 seeking either summary dismissal of that application or a stay.

Short History

1. The respondent husband with his former wife and their children arrived in Australia in 1989. 

2. The parties in these proceedings were married in Iran in April 2003, and subsequently in about January 2004 the wife joined her husband in Australia to live.  There are no children of the marriage.  The wife is aged about 50 years, the husband 55. 

3. On 21 December 2010 there was a physical separation and since this date the husband has lived in his property at Suburb P, from which he conducts his business.  The wife lives in a property owned by the husband at Suburb S.  The parties have lived apart since December 2010.

4. There is a dispute over separation.  The wife alleges the separation date is December 2010, the husband alleges that the marriage effectively ended in 2005.  At its longest, the marriage relationship was about seven and a half years. 

5. There is no dispute that prior to the marriage the husband owned his present properties; two in Suburb P and one in Suburb S.  There is a dispute over whether the wife brought assets to Australia.  The husband says the wife said she had 250,000 Euros, but the wife denies both saying that she had that money and having that money.

6. There is no dispute that the parties lived in the husband’s properties throughout the relationship.  During the marriage the wife had some limited employment.  She was injured at work in December 2004 and there has been a Worker’s Compensation claim.  The husband denies any knowledge as to the extent of that claim or its outcome. 

7. The asset pool comprises the equity in the three properties owned by the husband, his business and some motor vehicles.  The net asset pool is approximately $400,000. 

8. On or about 25 August 2011 the husband says he was advised that the wife had filed in the Iranian court seeking $80,000 from him.  Both parties instruct their lawyers that they have engaged lawyers in Iran for those proceedings.  I am not in a position to be sure about when they were actually commenced.

9. In her affidavit at par 33, the wife refers to a conversation with her Iranian lawyer in December 2011 when she was advised that she needed to take those proceedings.  Today in relation to this application the wife through her counsel advised the Court that she was committed to continuing the proceedings in Iran and expecting a decision in that matter any day. 

10. The husband says that it is quite unreasonable, indeed oppressive and vexatious, that he should be forced to contend with litigation in two countries where

    ·the parties are the same;

    ·the cause arises from the same cause;

    ·there is the breakdown of the marriage between the parties;

    ·the assets are the same;

    ·the property owned in Australia by the husband, and

    ·to some extent cash assets of the wife, if that matter is proven.

11. There is an unusual forum issue here.  The wife is choosing to litigate in two countries.  The High Court decision in Henry v Henry (1996) 185 CLR 571 provides the test for the appropriate forum where there is a dispute. The test is the clearly inappropriate forum, in particular is the Local Court a clearly inappropriate forum? The focus is on the appropriateness or not of that local forum, not on anything in relation to the foreign forum, but it is relevant to the inappropriateness as to whether or not the foreign forum has jurisdiction to deal with the same matter. Clearly in this case, the foreign forum does have that jurisdiction and is presently dealing with it.

12. Is it also inappropriate as to be oppressive and vexatious to the defendant?  That is the onus that the defendant needs to discharge.  This relates to the impact on the defendant of proceedings in a foreign forum, not the conduct of the applicant. 

13. Usually there would have to be an appropriate foreign tribunal with jurisdiction for the defendant to be able to discharge that onus, but as I have said, this is the unusual case where the applicant is choosing to continue with litigation in two jurisdictions.  Australia is not on first consideration of the facts a clearly inappropriate forum, given that the parties live here, they have almost all of the years of their marriage here, and the property is here.

14. I cannot accept that the Iranian proceedings are what was described by counsel for the wife as a red herring or likely to be unsuccessful.  The wife is the applicant there.  Her instructions as late as today, were that she was continuing with the Iranian proceedings, and I infer that she would withdraw if there was no benefit to her in proceeding.  Indeed on her own case, there is a potential benefit. 

15. Accordingly, if the applicant intends to pursue her action in Iran, the Australian proceedings should be stayed pending their conclusion.  The impact on the defendant of continuing with effectively parallel proceedings would, in my view, be oppressive.  “Oppressive” means unfairly prejudicial and vexatious in the sense of being serious and unjustified trouble also applies. 

16. There are clearly costs associated with legal representation, perhaps costs of travel, perhaps costs of valuation, but whatever costs are associated with litigation they would apply twice.  There is also the need to take into account the size of the asset pool which at $400,000 could quickly be eroded by costs spent in two jurisdictions. 

17. The application of the wife is therefore stayed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 5 March 2012.

Associate:    

Date:  20 March 2012.