Navarro & Jurado
[2009] FMCAfam 64
•30 January 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAVARRO & JURADO | [2009] FMCAfam 64 |
| FAMILY LAW – Divorce – defended – stay of proceedings – whether clearly inappropriate forum. |
| Family Law Act 1975, ss.39(3), 104 |
| Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 In the marriage of Gilmore (1993) 16 Fam LR 285 Henry & Henry (1996) 185 CLR 571 |
| Applicant: | MR NAVARRO |
| Respondent: | MS JURADO |
| File Number: | BRC 12331 of 2007 |
| Judgment of: | Jarrett FM |
| Hearing date: | 27 November 2008 |
| Date of Last Submission: | 27 November 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 30 January 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Baston |
| Solicitors for the Applicant: | Cooper Grace Ward Lawyers |
| Counsel for the Respondent: | Mr Linklater-Steele |
| Solicitors for the Respondent: | Lynn & Rowland Lawyers |
ORDERS
That the application for divorce filed on 22 October 2007 be dismissed.
That any application for costs be made in accordance with Division 21.2 of the Federal Magistrates Court Rules 2001.
IT IS NOTED that publication of this judgment under the pseudonym Navarro & Jurado is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 12331 OF 2007
| MR NAVARRO |
Applicant
And
| MS JURADO |
Respondent
REASONS FOR JUDGMENT
Mr Navarro and Ms Jurado married in Costa Rica in January, 1997. Their relationship has broken down and they separated in July, 2005. At the time of separation the parties lived in Australia. Mr Navarro continues to live in Australia and Ms Jurado lives in Costa Rica with the parties’ son [X].
Mr Navarro applies for a divorce order pursuant to s.39(3) of the Family Law Act 1975. The application is opposed by Ms Jurado. She has commenced her own proceedings in Costa Rica consequent upon the breakdown of the parties’ relationship. She argues that
Mr Navarro’s application should be dismissed or stayed permanently and the Costa Rican proceedings permitted to run their course.
A stay should be granted if I conclude that this Court is a clearly inappropriate forum: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; In the marriage of Gilmore (1993) 16 Fam LR 285; Henry & Henry (1996) 185 CLR 571. That will be the case if continuation of the proceedings in this 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”: per Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247.
According to the majority in Henry (Dawson, Gaudron, McHugh and Gummow JJ at para 39) it is relevant to consider:
a)whether the court in Australia and the court in the foreign jurisdiction will recognise the other's orders and decrees;
b)whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done;
c)which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy;
d)where there are concurrent proceedings on foot, the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred;
e)the connection of the parties and their marriage with each of the jurisdictions and the issues on which relief might depend in those jurisdictions;
f)whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing;
g)whether legitimate personal or juridical advantage would flow to either of the parties.
The majority pointed out that the above list is not exhaustive and that the question whether the Australian court 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.
It is necessary to consider some of the background facts before proceeding further. The facts are taken from the affidavits sworn and filed by each of the parties. Neither party was cross-examined before me.
Mr Navarro is a Colombian citizen and has had permanent residence in Australia since 1999. He and Ms Jurado met in Costa Rica in 1987 while he was completing his studies there. Their son was born in 1998 and so I infer that he was born in Costa Rica. Ms Jurado says that the parties lived in Costa Rica for about 3 years and that she fully supported Mr Navarro while he completed his studies. He was receiving no income at the time.
In 1999 the parties travelled to Australia to live. Mr Navarro says that he has lived in Australia ever since. He works here and is in a new relationship. He wishes to remarry here and for that purpose seeks a divorce.
Ms Jurado, however, found living in Australia difficult and Mr Navarro swears that during their marriage she spent long periods of time back in Costa Rica – travelling between the two countries at her leisure. He also swears that Ms Jurado left Australia “in August, 2001 and returned to New Zealand in June, 2003. My wife then left New Zealand in September 2003 and returned to Australia in March 2005. My wife then left Australia permanently on 31 July, 2005 and we have lived separately and apart since then.” (paragraph 4 of Mr Navarro affidavit filed on 15 July, 2008).
There is no evidence that Mr Navarro has any property in Australia. The evidence suggests that Ms Jurado has limited property in Costa Rica. She alleges that by reason of Costa Rican law, whilst the parties remain married Mr Navarro will be entitled to one half of anything that she acquires.
In or about February or March, 2007 Mr Navarro contacted Ms Jurado and her Costa Rican lawyer to advise of an intention to lodge a no fault divorce in Australia and to seek “legal separation” in Costa Rica. He swears that the term for divorce required by Costa Rican law had not then expired (three years separation). He had his own lawyer in Costa Rica as early as April, 2007
On 2 May, 2007 Ms Jurado filed an Application for Divorce in Costa Rica. Mr Navarro swears that he was unaware of that application when he made his Application for Divorce in the Federal Magistrate’s Court of Australia on 24 October, 2007 (his affidavit filed 15 July, 2008). In the Application for Divorce filed by him at paragraph 20 Part E in answer to the question “Are there any current or pending cases in this or any other court about family law, child support, family violence or child welfare including any of the parties and/or children listed in this application”, he answered “no”.
That assertion cannot be correct, however, because Ms Jurado informed him of the proceedings by way of email correspondence (emails sent on 30 April, 2007 and 6 May, 2007).
Mr Navarro filed his application for divorce in this Court on
24 October, 2007.
In November, 2007 Mr Navarro returned to Costa Rica – he says to spend time with his son. He spent some time in Costa Rica (the exact period does not appear from the evidence) and then returned to Australia. While he was in Costa Rica and on 23 November, 2007 he appointed a lawyer to represent him in Ms Jurado’s “abbreviated divorce trial” in Costa Rica. He also commenced his own proceedings in the Family Court in Costa Rica for “legal separation from my wife and visitation rights to my son”. That is to say, Mr Navarro has filed his own proceeding in Costa Rica whereby he seeks to gain a divorce on the basis of “legal separation”. Ms Jurado and her Costa Rican lawyer assert that Mr Navarro is seeking property orders as well as parenting orders in those proceedings.
On 5 August, 2008 Mr Navarro entered an answer to Ms Jurado’s divorce suit in Costa Rica.
On 19 August 2008 Mr Navarro unsuccessfully sought to have the wife’s divorce application in Costa Rica dismissed. No point seems to be taken in this application that the wife’s divorce application was invalid because the requisite period of separation in fact had not elapsed. The basis for applying to strike it out appears to have been that the proceedings were not prosecuted with diligence by her.
This Court plainly has jurisdiction to deal with Mr Navarro application (see s.39(3) of the Act). He is ordinarily resident in Australia and has been so for one year immediately preceding the filing of his application.
I am satisfied that the Second Family Court of San José has jurisdiction to deal with the parties’ controversy, including divorce, in this matter. As set out in more detail below, both parties have commenced proceedings in that court for divorce, or orders relating to property and parenting issues.
The law to be applied to the parties’ matrimonial affairs in Costa Rica is relevant. To that end Mr Navarro filed an affidavit sworn by Esteban Soler, who is described as an Attorney-at-Law. He resides in San José, Costa Rica. Ms Jurado relies upon evidence in the form of three affidavits by her Costa Rican attorney, Luis Alenjandro Alvarez Mora. Neither witness was cross-examined.
As best as I can tell from the evidence of the attorneys, matrimonial law in Costa Rica a governed by the Family Code of Costa Rica. A party may apply to a court for orders concerning property interests, parenting issues or divorce. The basis upon which the courts exercise their jurisdiction with respect to divorce and property division is not entirely clear. It seems that in some circumstances the grant of a divorce is based upon fault, although two of the grounds of divorce appear to be “Legal separation for at least one year” and “Factual separation for more than three years” – that is to say, they appear to be no fault grounds.
The way in which the parties’ property might be divided between them and how parenting issues might be determined may depend upon the basis upon which the divorce is granted in Costa Rica. Attorney Mora swears:
7. As a result of all matters being heard and decided in the one application it is important for each party to bring evidence and witnesses to the Court. As previously noted the Costa Rican Divorce System is a fault based system and the first matter to be decided is that of fault, whether either party is more at fault for the breakdown and demise of the relationship that (sic) the other. Regardless of whether there is a finding of fault against either party the divorce is granted however the next step is then attended to and that is if there is a finding of fault then what effect does that have on the party with whom the fault lies in any property or childrens (sic) issues.
8. Clearly it is my clients case that as a result of the behaviour of the Applicant, the domestic violence and his threats in relation to the child that it is most likely that the court would make a finding against Mr Navarro and that in turn will affect the decision in relation to property and children.
It is clear that, if a divorce is granted in Costa Rica on the proceedings instituted by Ms Jurado, it will be recognised in Australia pursuant to ss.104(1) and 104(3)(b) of the Act. As the High Court pointed out in Henry (at para 19): “The effect of those sub-sections is that a foreign decree is recognised if the initiating party was ordinarily resident in the jurisdiction in question at the time the proceedings were instituted and either that party was continuously resident in that jurisdiction for one year before the proceedings were instituted or the parties' last place of cohabitation was in that jurisdiction.”
Recognition of an Australian divorce order in Costa Rica is less straight forward. Attorney Soler gives evidence about recognition of an Australian divorce decree in Costa Rica. In paragraphs 4 - 7 of his affidavit, he says:
4. Question 2 – What effect, if any does a Divorce order made by the Federal Magistrates Court in Australia have on any divorce proceedings in Costa Rica, wether (sic) they were filed by the Respondent Wife or the Applicant Husband?
5. Response to Question 2 - A Divorce order issued by the Federal Magistrates Court in Australia will have absolutely no effect on any divorce process in Costa Rica that have been filed by either Mr Navarro or his wife separately. In order for a divorce ruling or sentence from a foregoing Court to be validated and executed in Costa Rica, the “writ of execution" of the divorce order from Australia must be petitioned by Mr Navarro in Costa Rica and a summary judicial process known as Exequatur, regulated under articles 705 to 708 of the Civil Procedures Code. This process is presented before the First Chamber of our Supreme Court. Article 705 of said Code establishes six requisites that must be made in order for the Australian divorce order to be validated and executed in Costa Rica. In this particular case, article 705, clause 4) states that in order for the validation to be granted, there cannot exist in Costa Rica, a judicial process under discussion or a sentence handed down by a Court in Costa Rica. In Mr Navarro’s case, there is a divorce process going on against him in the Second Family Court of San José, and according to the clause above mentioned, any Exequatur process petition presented by Mr Navarro in Costa Rica would be rejected “inlimina”, on the grounds of pending litigation, thus not meeting the requisites set by clause 4) of article 705 of the Civil Proceedures (sic) Code.
6. Question 3 - can either application filed in Costa Rica proceed notwithstanding that a divorce order may be made in Australia?
7. Response to Question 3 - Any divorce application filed in Costa Rica by any of the spouses can proceed despite a divorce order from Australia, because a “writ of execution” from any foreign Court in order to be validated in Costa Rica would be required to be filed under the Exequatur summary process contemplated in the Costa Rican Civil Procedures Code, and according to article 705 clause 4) of said Code, the validation of the Australian Court divorce order would be rejected on the grounds that there is a judicial process in the Costa Rican judicial system pending a final decision, which in this case is the divorce filed by his wife in the Second Family Court of San José.
Attorney Mora had the opportunity to consider Attorney Soler’s evidence and make any response he wished to make. He does not take issue with the above evidence. He does not suggest that Attorney Soler’s interpretation of the Civil Procedures Code is erroneous or that his opinion that the Australian divorce decree is not likely to be recognised in Costa Rica in the circumstances of this case is flawed.
Because the order sought in Australia is a divorce decree, no question of “enforcement” as such will arise. Having regard to Attorney Soler’s evidence, the decree seemingly will not be recognised in Costa Rica, but will be valid in Australia.
The decision in Henry makes plain that the existence of the Costa Rican proceedings is a material factor to be considered. The majority said:
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. 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 continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
36. It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth 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 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 it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.
(footnotes omitted)
As the High Court also made clear, several proceedings that seek different relief in respect of various matters arising from the parties’ marriage relationship (divorce, property adjustment or maintenance) are ordinarily concerned with the same controversy – it is the marital relationship itself which is the subject of the controversy – “And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship”: (majority judgment in Henry at 37).
In my view, the Costa Rican jurisdiction can provide more effectively for complete resolution of the matters involved in the parties' controversy in this case. There are proceedings on foot in that jurisdiction which will deal with the dissolution of the parties’ marriage, property claims and parenting issues. No such comprehensive proceedings are on foot in Australia. The divorce decree sought by Mr Navarro will not resolve any of the controversy between the parties – especially given that the Australian divorce decree is not likely to be recognised in Costa Rica.
Ms Jurado’s proceedings in Costa Rica were commenced first. After Mr Navarro commenced his proceedings in Australia, he participated in the proceedings in Costa Rica by making an answer to them and making application to have them dismissed – not on any jurisdictional ground, but for want of prosecution. That application failed.
Moreover, Mr Navarro has himself invoked the Costa Rican jurisdiction and sought an order for “legal separation”. On the evidence, such an order is either a divorce order, or a prerequisite to the granting of a divorce order.
Ms Jurado argues that the granting of a divorce order in Australia will have the effect of preventing her from agitating her case insofar as it depends upon fault. Her Attorney swears:
12. Should the Divorce be granted in Australia, my client will not have the opportunity to air the matters which need to be brought to the attention of the Court here in Costa Rica, in order that they properly determine all the relevant issues pertaining to fault within the breakdown of the marriage. This part of the process would be severed from the application and then the property and children's issues would be decided without the assistance of the evidence that my client wishes to bring to the court, which is her right under the Costa Rican System.
But Ms Jurado argument depends upon the Australian divorce decree achieving recognition in Costa Rica, something which on the evidence is unlikely.
Ms Jurado also argues that Mr Navarro is seeking to gain an advantage by gaining a divorce in Australia and then seeking to prosecute his property and children’s proceedings in Costa Rica in order to gain significant financial advantage. The evidence demonstrates that
Mr Navarro has filed his own applications in Costa Rica. Ms Jurado and her lawyer point out that those proceedings include orders for property settlement and in particular declarations that all property be declared “common property”. No attempt has been made to exhibit a copy of those proceedings by Mr Navarro nor has he gone on oath to respond to the assertion that he is seeking a property adjustment.
Mr Navarro himself swears that he has “engaged lawyers in Costa Rica to negotiate a resolution of both property and child maintenance issues”: Mr Navarro affidavit filed 15 July, 2008 paragraph 16.
I accept the evidence from Ms Jurado’s Attorney that there may be a significant disadvantage visited upon Ms Jurado if a divorce order is made in Australian and it is afforded recognition in Costa Rica. I accept his evidence that Mr Navarro would become entitled to 50% of
Ms Jurado’s property, including post separation property. But as I have set out above, it is unlikely that an Australian divorce decree would be afforded recognition.
Conclusion
The question is whether this court is a clearly inappropriate forum.
I think that it is because:
a)Only one party continues to have any real connection with Australia. Whilst Ms Jurado has no real connection with Australia (other than Mr Navarro), Mr Navarro continues to have a connection with Costa Rica. He has a child who lives there, in respect of whom he is seeking parenting orders. He is also pursuing an answer to matrimonial proceedings commenced by Ms Jurado there and he is prosecuting his own proceedings for relief beyond that related to parenting issues. He has submitted to the jurisdiction of the relevant court in Costa Rica.
b)Only one aspect of the parties' overall controversy can be resolved by this Court, and although that resolution may not have an effect upon the outcome of the Costa Rican proceedings, prima facie it is vexatious and oppressive, in the strict sense of those terms, for Mr Navarro to have commenced proceedings in this Court when, to his knowledge as I have found, an application was already pending in the Costa Rican courts.
The application for divorce must be either stayed or dismissed. I will hear the parties as to the most appropriate form of order.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S. Haysom
Date: 30 January 2009
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