Myall and Myall

[2007] FamCA 1680

FAMILY COURT OF AUSTRALIA

MYALL & MYALL [2007] FamCA 1680

FAMILY LAW – PROPERTY – Undefended proceedings – Transfer of overseas property

Family Law Act 1975 (Cth)

APPLICANT: Ms Myall

RESPONDENT: Mr Myall

FILE NUMBER: PAC 2026 of 2007

DATE DELIVERED: 21 September 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Loughnan JR

HEARING DATE: 17 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Thistleton

SOLICITOR FOR THE APPLICANT: Mark Brown & Associates, Solicitors

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. The order that I make is that insofar as the application of the wife filed the 12th day of April 2007 seeks orders for settlement of property, being the orders and requests at pars 4 to 11 of Pt F of the application, the application is permanently stayed. 

IT IS NOTED that publication of this judgment under the pseudonym Myall & Myall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2026 of 2007

MS MYALL  

Applicant

And

MR MYALL  

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for settlement of property and parenting orders.  The matter came before me on an undefended basis on Monday of this week at Parramatta in the duty list at the application of the wife. I made some parenting orders and in respect of the orders she sought for property settlement, I reserved judgment.  I formally excused the wife from attendance on delivery of judgment but in any event her counsel was given notice and appears by telephone.

2. The background facts are that the wife and husband are 41 and 40 years of age respectively.  I believe they were both born in Zimbabwe, certainly the wife was. They were married in Zimbabwe in August 1990, separated in September of 2002 and were divorced on 11 August 2006.  They have two children, a boy, M, born in May 1990, so 17 years of age, who is in Year 10 at G College, and a girl, T, born in March 1992, 15 years of age, also in Year 10 but at L High School. 

3. The wife's evidence is that the parties were married in Zimbabwe in 1990.  From 1991 until 2001 the husband lived in Harare and the wife lived in another city. She says that in September of 2001 the husband travelled to Scotland to study.  She says that he visited her for a week in September 2002 but since then, as far as she knows, has lived in Scotland.  The wife came to Australia in December of 2003 and the children followed a month later and they have lived in Australia since.  I understand the wife has a working visa and I think that visa extends until something like 2009. She is seeking permanent resident status here.

4. The wife says that she told the husband that the marriage was over in early 2005. In that event I do not quite understand her evidence to the effect that they separated in 2002 but nothing turns on that. The divorce became final on 11 August 2006.  I assume that was at the wife's application and I assume at the Federal Magistrates Court, although I do not have any documents about that. 

5. The wife says that the husband was a consultant at the date of marriage.  She says that he studied full-time, presumably in Zimbabwe, from 1992 to 1996.  She says from 1997 until August of 2001 he worked full-time as a project manager.  She says that from September 2001 to December 2005 he was a full-time student in Scotland, and from December 2005 to date she understands that he has worked full-time as a University lecturer.  I take the wife's evidence to be that at all relevant times she has worked as a Nurse, save for two lots of three months maternity leave associated with the birth of the children.

6. By the application that the wife filed on 12 April 2007 relating to property settlement, she seeks an order that the husband transfer to her a property at B, in Zimbabwe and the transfer of a 1996 Nissan Pulsar motor vehicle which I understand is also in Zimbabwe. Otherwise she seeks that the parties retain what they have. She seeks an order under s 106A of the Family Law Act. That is a provision allowing a Registrar or somebody else to sign a document in the name of a person who the Court is satisfied has not or will not sign a document necessary to give effect to an order. She also seeks that the Court request that the authorities in Zimbabwe and Scotland assist in the implementation of the orders.

7. I was satisfied for the purposes of the parenting proceedings and for these that the husband had notice of the proceedings, albeit that he was served in Scotland. Among other things he told the wife's solicitor by correspondence in June of this year that he would not take part in the proceedings, that is from annexure F to an affidavit of Mark Brown, the wife's solicitor, sworn on 23 August 2007. It is clear that he knew the proceedings were on and he decided that he was not going to take part.  He made reference in that communication to a complaint about a lack of - what he saw as a lack of - an attempt to try and resolve the case and the very short notice he was given in relation to the proceedings. The solicitor wrote back and said, "Well, you say you are trying to settle it but you have not made any offers to settle it," and in fact there was later correspondence giving the husband more time.  The matter was adjourned then to a date in August of this year and ultimately it came before me. I was satisfied about the notice.  In his letter the husband refers to an inability to obtain relevant advice about Australian law and although not in so many words, he in effect invited the continuation of the proceedings and said that he would take unspecified action elsewhere in the event that there was a judgment which did some mischief.  It must be said that at no stage did the husband acquiesce to the jurisdiction of this Court.

8. The Court has jurisdiction to make the orders sought. S 39(4) of the Family Law Act says that, in effect, proceedings between parties to a marriage of a certain type can be instituted where either party to the marriage is an Australian citizen, ordinarily resident in Australia, or is present in Australia at the relevant date, the relevant date being the date the application is filed and the categories of matrimonial cause that are caught by that provision include:

   proceedings between parties to a marriage with respect to the property of the parties to the marriage or either of them.

9. And that comes from s 4 of the Family Law Act, definition (ca). Relevantly and interestingly, jurisdiction in relation to the parenting part of the proceedings is expressed differently and, among other things, the things that would qualify this Court to have jurisdiction would be a circumstance where a child is present in Australia on a relevant day, or a child is a citizen ordinarily resident on the relevant day, a parent is a citizen or ordinarily resident or present on a relevant day and so on. So in the circumstances of the parenting case, not only the fact that the mother is here but also the fact that the children are here, ground jurisdiction.

10. Before coming to the merits of the case, there is a question about whether or not the Court should exercise jurisdiction.  It must be said that there is in fact very little connection between the marriage and Australia.  The wife is here and the children are here.  The parties were not born in Australia.  Neither was or is an Australian citizen.  They were not married here.  The parties never lived together here.  The respondent, as far as I am aware, has never been here, and the subject of the property proceedings, the property in Zimbabwe, is obviously not here.  So there is a question about the appropriateness of this Court to deal with the matter.

11. The Family Court is a Court of limited jurisdiction and Courts of limited jurisdiction are obliged to consider whether their jurisdiction extends in given circumstances and so I will turn to that issue.  This question usually arises in the context of a forum dispute. Normally there would be a party who agitates the Court for a stay of proceedings on the basis that the Court should not exercise jurisdiction.  The test in Australia in relation to forum is whether it can be said that the Australian Court is a clearly inappropriate Court.  This situation does not arise here of course because the husband has not joined in the proceedings even for the purpose of challenging jurisdiction.  But it is not irrelevant to consider that issue and I am not sure how that decision would go.

12. The Australian test is unusual.  The test applied in the United Kingdom and many similar common law jurisdictions is a test about the degree of appropriateness of a forum; in other words, which is a better forum rather than a finding of a forum being clearly inappropriate, and this issue has been canvassed in this Court in a number of cases, in Henry's case, in Gilmour, and a couple of propositions come from those cases.  Firstly, that as a general proposition the marital relationship is the critical thing as to jurisdiction.  So in past cases, in Henry's case, for example, the question of divorce and property proceedings came up and the Court said it is not a question of taking those things piecemeal but these are all controversies arising out of the marriage and so disputes with a relation to property, maintenance, custody should all be seen ordinarily as aspects of an underlying controversy dealing with the marriage relationship.  It is clear that that is not always determinative of the matter.  In a more recent decision of D & V, it was expressed rather that the starting point should be trying to deal with the controversy as a whole (in one forum).  That was a case stretched between the Netherlands and Australia and there were children in the Netherlands, property in Australia and issues about spousal maintenance.  The parenting proceedings I think were ultimately settled and the Full Court held that the trial Judge should not have purported to stay some proceedings in one of the jurisdictions and ultimately the indication was that perhaps they should all be together.  But it is clear that it is possible for elements of matrimonial proceedings to be split between forums.

13. In the case before me of course I have been satisfied to make orders about children and the question is this issue about orders in relation to property settlement.  As I say, there is an issue about whether Australia is a clearly inappropriate forum.  Relevant to that issue I think would be the fact that there is no other nominated forum as an option.  That would normally apply in contested proceedings as to forum of course and it is a nice question here as to whether the lack of an alternative makes any difference.  The obvious candidates are Zimbabwe and Scotland, but there is no evidence in relation to the availability or reciprocity that might apply between Scotland and Zimbabwe or anything about Zimbabwean law.

14. There is a principle of private international law arising from a case called British South Africa Co v Companthia de Mozambique called the Mozambique Rule, and the House of Lords in that case held that the previous rule denying jurisdiction to the English Courts to adjudicate upon title to or the right to possession of foreign land was not merely a technical rule of procedure but was a substantive rule and therefore was to be followed. Firstly, an exception to the rule applies to circumstances where orders can be made in personam. That mainly seems to apply where there is a controversy between two people rather than a controversy about the indefeasibility of title or identifying the proper title.  There is a rather fulsome discussion about the rule in a decision called Griggs Group Ltd v Ross Evans and Anor, which is a decision of the High Court, Chancery Division from 2004, the neutral citation EWHC 1088 Ch, and Deputy Judge Peter Prescott QC says:

    Except where they felt able to exercise their equitable in personam jurisdiction, the English Courts refuse to decide questions of title to foreign land.  This was so even if the defendant was otherwise properly before the English Court.  In the first place, it would have been pointless to assert just such a jurisdiction.  How could Courts order foreign peace officers to put the successful claimant in possession of the land?  In the second place, they considered that to try title to foreign land would have been disrespectful to their foreign judicial colleagues by seeming to undermine their jurisdiction and authority.

15. But the case itself, the Mozambique case, was about rights in rem.  Dealing with rights in personam, the Judge went on:

    The equitable jurisdiction in personam touching land abroad has existed for at least 250 years.  Notice the difference:  in the Mozambique case the Portuguese company was saying in so many words, "Please decide under what local law we were already the owners of the Manika(?) lands and minerals."

16. In contrast, his Honour goes on:

    Under the personam jurisdiction of equity, the claimant would be saying, "I fully admit the defendant is the owner of this land.  That's my very complaint.  You see, he has signed a contract to sell it to me.  Please compel him to fulfil his bargain."  Then the Court of Equity would act upon the conscience of the recalcitrant party by ordering him to transfer the land to the claimant according to the forms of local law.  The jurisdiction is not over the property but over the person.  The defendant signs the requisite document for fear of being held in contempt of Court but the result is to alter the ownership of foreign land all the same.

17. The Deputy Judge goes on over many pages talking about the rationale for the Mozambique Rule and I do not think that really helps.  He refers to the question of forum non conveniens, which is the alternate test that is applied in the United Kingdom in relation to forum issues rather than our test of clearly inappropriate forum, and there is a discussion about choice of law in the decision.  He quotes Parker J in an earlier decision:

    In my opinion the general rule is that the Court will not adjudicate on questions relating to the title or to the right to possession of immovable property out of the jurisdiction.  There are no doubt exceptions to that rule but without attempting to give an exhaustive statement of those exceptions, I think it will be found that they all depend on the existence between the parties to the suit of some personal obligation arising out of contract or implied contract, fiduciary relationship or fraud, or other conduct which in the view of the Court of equity in this country would be unconscionable and so not depend for their existence on the law of their locus of the immovable property.  Thus in cases of trusts, specific performance of contracts, foreclosure, redemption and mortgages or in the case of land obtained by the defendant by fraud or some other unconscionable conduct as I have referred to, the Court may very well assume jurisdiction.  But where there is no contract, no fiduciary relationship and no fraud or other unconscionable conduct giving rise to the personal obligation between the parties, the whole question is whether or not the law of the locus of the claim of title set up by one party, whether legal or equitable claim in the sense of those words as used in English law, would be preferred to the claim of another party and I do not think the Court should entertain jurisdiction to decide the matter.

18. Nextly, I should say that the Mozambique Rule has been abolished in New South Wales by the Jurisdiction of Courts (Foreign Land) Act 1989. It is a refreshingly brief piece of legislation that says, in effect, that Courts should not decline to exercise power solely because of the Mozambique Rule, and the next provision is the Court has a discretion whether to exercise power or not. So it just sweeps aside the rule but does not help in relation to fundamental problems.

19. I cannot make an effective order in rem in relation to the land in Zimbabwe. That is the point of the Mozambique Rule. I cannot make an order which I have any confidence would be acted on by the authorities in Zimbabwe. I could make an order in personam in relation to the land but there are special problems here because these are undefended proceedings, the respondent is not within the jurisdiction and he has not submitted to the jurisdiction. Thus there is no evidence before me that an order of this Court will be effective in determining the controversy. There is no suggestion that an Australian decree would be effective or even indicative or persuasive. The problem of an order in personam of course, is enforcement. Such an order is unlikely to be effective where the other party is beyond the reach of the coercive powers of the Court in relation to contempt or contravention. The wife seeks an order under s 106A but there is no indication that such an order would have any effect at all on circumstances in Zimbabwe. If I am wrong about all that, and I do not think I am, there are problems even with the merits of the case.

20. In undefended proceedings evidence is required of things that in contested proceedings, can be assumed from the fact of controversy between the parties.  For example, in undefended proceedings evidence is required of the value of property whereas in defended proceedings there might well be an agreement as to value and no expert evidence is required.  Title to property can be safely assumed in most defended proceedings because there seen to be no real mischief in the event that there is a problem with the parties' understanding of title. However, in undefended proceedings title searches are required.  In the case before me there is some evidence of value but it is not adequate. The valuer is not giving sworn evidence.  He does not qualify himself to give expert evidence. There is no indication of the basis on which he has qualifications to provide an opinion, no evidence of the circumstances or the steps that he took to qualify himself to give the opinion, no evidence to justify the opinion.  There is no survey, no photographs or extensive recitals about improvements, no evidence about comparable sales - just a bare assertion of value. And a complicating factor in the case is that the wife, and she is not qualified to do it, offers some evidence about a rate of inflation in Zimbabwe. Albeit that there can be some judicial notice of these things, I think there is a real problem in a simple assertion about a particular rate of inflation.

21. Here before me there is some evidence about title.  There are some documents that seem to be related to establishing the title or transfer of title of land but there is no evidence about the system of land law in Zimbabwe and in what circumstances land, and in particular this land, can be transferred, the costs of transfer, et cetera.  The wife's case is that she should retain what is identified in the documents as the most valuable piece of real estate and the husband should keep what he has, including the proceeds about which there is no adequate evidence, of sale of properties apparently alienated long ago. Rampant inflation is itself a factor in determining the just and equity of that proposal and that has not been addressed.  There are documents from more than 10 years ago suggesting land was purchased for - I think there is a figure of $800 at one point.  There is a later document in relation to the same land at some thousands of dollars. The estimates of value before me put the most valuable property at 18 billion Zimbabwean dollars.

22. Another problem is that although the husband has notice of the proceedings, he is not here and has never been here.  Imputing to him a knowledge about his obligations of disclosure and the consequences of his actions in relation to not taking a step in proceedings, is a problematic exercise in itself.  As a general proposition, Courts will not act where the action is futile. It seems to me whether by simple adherence to the Mozambique Rule, because orders made in personam cannot be enforced or because the wife cannot properly support the case she wants to make, I should not make the orders sought.

1. I make no criticism of the wife.  It is clear on the documents that she and her legal advisers have made a valiant effort to obtain from friends and families what documents do exist.  It just seems to me that it cannot be made to work.

2. I raised with counsel for the wife the issue about orders being effective and I was told, I think the gist of it was that the wife did not assert that the orders would be enforceable or even persuasive in Zimbabwe and indeed it may be that the wife, depending on how her application about residence status goes, she might never seek to enforce the orders. However, if she was to go back to Zimbabwe then she felt that having a document from an Australian Court might be of some assistance. That is not good enough.

3. In my view, insofar as the application seeks orders for a property settlement, it cannot succeed.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan

Associate

Date: 23 May 2008