Navarro v Jurado

[2010] FamCAFC 210

FAMILY COURT OF AUSTRALIA

NAVARRO & JURADO [2010] FamCAFC 210

FAMILY LAW – APPEAL – Divorce – Jurisdiction – Forum non conveniens – Parallel proceedings – Stay of proceedings – Whether a clearly inappropriate forum – Where the Federal Magistrates Court of Australia and the foreign forum both have jurisdiction – Where the foreign proceedings were commenced first in time – Whether the continuation of proceedings in Australia would be “vexatious” or “oppressive” as espoused in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 – The principles in Henry v Henry (1996) 185 CLR 571 considered – Appeal dismissed

Evidence Act 1995 (Cth) ss 174, 175
Family Law Act 1975 (Cth) ss 39(3), 48(1), 55, 55A, 104(1), 104(3)(b)
Family Law Amendment Act 2005 (Cth)
Family Law Rules 2004 r 22.22(1)(a), r 22.22(2)

Abbott and Abbott (1995) FLC 92-582
American Dredging Co v Miller (1994) 510 US 443
Avenue Properties Ltd v First City Development Corporation Ltd (1986) 32 DLR (4th) 40
Cashel & Carr (2005) FLC 93-232
CDJ v VAJ (1998) 197 CLR 172
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
De Winter v De Winter (1979) FLC 90-605
Dobson and Van Londen (2005) FLC 93-225
Ferrier-Watson, BF v McElrath, DA (2000) FLC 93-022
Garsec Pty Ltd v His Majesty the Sultan of Brunei (2008) 250 ALR 682
Gilmore and Gilmore (1993) FLC 92-353
Gronow v Gronow (1979) 144 CLR 513
Gulf Oil Corp v Gilbert (1994) 330 US 501
Henry v Henry (1996) 185 CLR 571
House v The King (1936) 55 CLR 499
Kemeny v Kemeny (1998) FLC 92-806
Maunder v Maunder (1999) FLC 92-871
Oceanic SunLine Shipping Co Inc v Fay (1988) 165 CLR 197
Opperman and Opperman (1978) FLC 90-432
Puttick v Tenon Ltd (2008) 238 CLR 265
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491
Rolling v Rollings (2009) 230 FLR 396
Sankil and Sankil (2007) FLC 93-351
SpiliadaMaritime Corporation v Cansulex Ltd [1986] 3 All ER 843
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

APPELLANT: Mr NAVARRO

RESPONDENT: Ms JURADO

FILE NUMBER: BRC 12331 of 2007

APPEAL NUMBER: NA 10 of 2009

DATE DELIVERED: 28 October 2010

PLACE DELIVERED: Perth

PLACE HEARD: Brisbane

JUDGMENT OF: Thackray, O’Ryan and Ryan JJ

HEARING DATE: 6 August 2009

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 30 January 2009

LOWER COURT MNC: [2009] FMCAfam 64

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Baston

SOLICITOR FOR THE APPELLANT: Cooper Grace Ward Lawyers

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Lynn & Rowland Lawyers

Orders

1. The application for leave to adduce further evidence is dismissed.

2. The appeal is dismissed.

3. The husband pay the wife’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number:       NA10 of 2009
File Number:            BRC12331 of 2007

MR NAVARRO

Appellant

And

MS JURADO

Respondent

REASONS FOR JUDGMENT 

THACKRAY J

1. The appellant husband applied for a divorce in the Federal Magistrates Court a few months after the respondent wife filed for divorce in Costa Rica. 

2. Federal Magistrate Jarrett dismissed the husband’s application.  He found it had been commenced in a “clearly inappropriate forum”.  The husband has appealed to this Court.   

3. I would dismiss the appeal with costs for the following reasons. 

Background

1. I adopt the summaries of the background material contained in the judgments of O’Ryan and Ryan JJ, which I have had the advantage of reading in draft.    

The applicable test

1. There is no issue as to the test to be applied in determining whether proceedings have been commenced in a “clearly inappropriate forum”.  The principles established in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, as explained in the context of family law litigation in Henry v Henry (1996) 185 CLR 571, were referred to by the learned Federal Magistrate and have been repeated by O’Ryan and Ryan JJ.

2. Whilst it has been the subject of some criticism, the Voth test emerged unscathed following an attack recently mounted in the High Court:  Puttick v Tenon Ltd (2008) 238 CLR 265.

Appellate principles  

1. Ryan J has referred to passages from House v The King (1936) 55 CLR 499 at 504-505 and Gronow v Gronow (1979) 144 CLR 513 at 519 which emphasise the restraint to be exercised by an appellate court when asked to interfere with the exercise of judicial discretion.

2. Authority suggests particular restraint should be exercised where the controversy concerns an assertion that proceedings were commenced in a “clearly inappropriate forum”.  Indeed, there may even be different considerations relating to the customary obligation to give reasons for the exercise of the discretion in the first place. 

3. The plurality in the High Court in Voth at 565, adopting views expressed in the House of Lords in SpiliadaMaritime Corporation v Cansulex Ltd [1986] 3 All ER 843, stressed that arguments about forum issues should be disposed of expeditiously, with the benefit of concise submissions. Their Honours went on to say:

   There may well be circumstances in which the primary judge may conclude that it is desirable to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors and explaining why the local forum is or is not a clearly inappropriate one. Ordinarily, however, it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (i.e. “clearly inappropriate forum”) grounds.

4. Whilst the learned editors of Nygh’s Conflict of Laws in Australia, (LexisNexis Australia, 8^th ed, at [8.28]) suggest these views may be “rather unrealistic”, I am unaware of any pronouncement of the High Court repudiating them.  They were referred to with approval by Kirby J (albeit in dissent) in Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at [161]. They were also applied by this Court in Cashel & Carr (2005) FLC 93-232 (per Bryant CJ, Coleman and Boland JJ).

5. The views expressed by the plurality in Voth concerning limitations on the obligation to give reasons resonate with these remarks of Deane J in Oceanic SunLine Shipping Co Inc v Fay (1988) 165 CLR 197 at 247-8:

   Th[e] power [to stay proceedings on forum grounds] is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression.

6. In the event a trial judge elects to adopt the approach which the plurality in Voth said should “ordinarily” be taken, there would seem to be little scope for an appellate court to intervene, save where the outcome is such that it can be inferred “that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”:  House v The King (supra at 505).

7. Ironically, there may be greater opportunity for appellate interference in those cases where the trial judge does elect to provide reasons.  Examination of the reasons may establish that he or she has mistaken the facts, acted upon a wrong principle, taken into account extraneous or irrelevant matters or failed to take account of a material consideration. 

8. It is unclear whether many trial judges have succumbed to the temptation to determine these notoriously complex disputes without clearly identifying the path by which the result was reached.  In the family law jurisdiction, most appear to have heeded the advice given in Ferrier-Watson v McElrath (2000) FLC 93-022 at 87,357 where Finn J said that, as a general rule, there is “value” in addressing the factors that were identified in Henry as being of potential relevance in applying the Voth test. 

9. Whatever approach may be adopted, the plurality in Voth (at 570) emphasised that the forum issue “is pre-eminently one for the trial judge”. They went further in saying that “an appeal should be rare and an appellate court should be slow to intervene”. Having been satisfied the correct test had been applied, their Honours in the High Court said they would be “extremely reluctant to interfere”. (For a more recent affirmation of the reluctance of appellate courts to interfere in such matters, see Garsec Pty Ltd v His Majesty the Sultan of Brunei (2008) 250 ALR 682 at [6] per Spigelman CJ.)

10. The restraint exercised by Australian appellate courts in forum disputes reflects the approach adopted in the United Kingdom (Spiliada (supra) at 861), the United States (Gulf Oil Corp v Gilbert (1994) 330 US 501 at 508-509) and Canada (Avenue Properties Ltd v First City Development Corporation Ltd (1986) 32 DLR (4th) 40 at 47).

11. The policy underpinning the deference paid to the decision of the trial judge in a forum dispute was explained in American Dredging Co v Miller (1994) 510 US 443 at 455 where Justice Scalia said:

    The discretionary nature of the doctrine, combined with the multifariousness of the factors relevant to its application … make uniformity and predictability of outcome almost impossible.

12. It was not submitted that the Federal Magistrate applied the wrong test in determining that the husband’s application had been brought in a clearly inappropriate forum.  Instead it was argued his Honour had erred in the way he applied the correct test.  I therefore intend to proceed with the considerable degree of caution recommended by the authorities.   

Ground 1 – failure to have regard to husband’s desire to remarry

1. The first ground of appeal asserted that:

   … the learned trial Judge misdirected himself as to the effect of the evidence adduced on behalf of the Respondent Wife and did not have any regard to the uncontradicted evidence of the Applicant Husband that he wished to obtain a dissolution of marriage so that he can remarry.

2. The husband’s submissions did not identify how the Federal Magistrate “misdirected himself”.  I therefore proceed on the basis that the gravamen of this ground is the alleged failure to have regard to the husband’s evidence that he wanted a divorce so that he could remarry.

3. Ryan J has drawn attention to the concession made by counsel for the wife in submissions before us that “his Honour failed to consider the personal reasons or asserted legitimate personal advantage to the appellant of being permitted to proceed with his Australian divorce application”.  However, counsel went on immediately to say:

   But to be fair to his Honour it was not articulated to his Honour as an argument before him for his consideration.  Certainly it was the case, as appears at paragraph 8 of the judgment, there was obviously the consideration that the purpose of the husband in applying for the divorce, he said, was to remarry.  There was some discussion about, I suppose, and criticism on our part that he had not really advanced much information about that in terms of any particular pressing need or desire.  But it was certainly a matter that was ventilated by [semble, but] not ventilated in terms of a discussion, in terms of the forum.  (Transcript, 6 August 2009, pp 16-17)

4. In this submission, counsel for the wife was drawing attention to the fact that the Federal Magistrate was well aware that the husband wished to remarry.  At a very early stage in his reasons, his Honour recorded that the husband “wishes to remarry here and for that purpose seeks a divorce”.  Counsel for the wife acknowledged that his Honour did not refer to this again in the part of his reasons appearing under the heading “Conclusion”.  His Honour elected instead to identify two matters which he considered established that Australia was a “clearly inappropriate forum”.  Given the importance of this part of his Honour’s reasons, I will repeat what he said: 

   36.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 [the wife] has no real connection with Australia (other than [the husband]), [the husband] 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 [the wife] 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 [the husband] 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.

5. Whilst the Federal Magistrate did not, in this concluding part of his judgment, refer again to the husband’s desire to remarry, this does not mean that he failed to take that desire into account.  He had already plainly recorded that the reason the husband was seeking a divorce was because he wished to remarry. 

6. When analysing the Federal Magistrate’s judgment it is important to remember that the majority of the High Court in Zhang said, at [78], that the proper resolution of these forum disputes is not “a question of striking a balance between competing considerations”. I accept this might appear, at first glance, to depart from the acceptance in Voth of the statement made by Deane J in Oceanic Sun that the exercise of the power to stay proceedings “involves a subjective balancing process…”  However, the majority in Zhang, at [25], reiterated that the task of the trial judge is to determine whether the applicant has established that the continuation of the proceedings in Australia “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’”.

7. Ultimately that task involves identifying and assessing the factors that are said to make the local forum “clearly inappropriate”.  The Federal Magistrate stated what he considered those factors to be when setting out his “Conclusion”, which is not to suggest he overlooked all of the other matters he had mentioned earlier.  There is no reason to consider that his Honour overlooked those factors, including the husband’s desire to remarry, when arriving at his decision. 

8. Although the husband had claimed in the proceedings below that the wife’s application for divorce in Costa Rica could not succeed, that proposition had been put in issue by the wife.  Furthermore, as the Federal Magistrate observed, when the husband applied in Costa Rica to have the wife’s application for divorce dismissed, he did so “not on any jurisdictional ground, but for want of prosecution”. 

9. There was no ground of appeal directed to his Honour’s failure to find that the wife’s application for divorce in Costa Rica could not succeed.  It was acknowledged on behalf of the husband before the Federal Magistrate that it was clear that both the husband and the wife wanted a divorce.  It was also accepted that a divorce granted in Costa Rica would be recognised here.  In these circumstances his Honour was entitled to approach the dispute as one concerning the forum in which the parties would be divorced, not whether the husband should be free to remarry. 

10. It is true that the husband led evidence (albeit sometimes contradictory) about possible delay in resolution of the proceedings in Costa Rica.  However, as was pointed out by counsel for the wife, although the husband had said he wished to be divorced in Australia in order to remarry, he had not deposed to “any great urgency or plan or any detail about the forthcoming marriage”.  The extent of the husband’s evidence was that he was in a stable relationship with a woman he had known since October 2005 and that he wished to marry her. 

11. I am not persuaded it would have been appropriate for the Federal Magistrate to have become caught up in the argument about delay in the foreign proceedings.  The plurality in Voth, at 559, and the majority in Puttick, at [27], emphasised that the focus must be “upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum”. Thus the plurality in Voth (at 558) and the majority in Henry (at footnote 68) stressed that Australian courts should not concern themselves with “an assessment of the comparative procedural or other claims of the foreign forum”.    

12. In case the potential delay in Costa Rica is of more significance than I consider it to be, I should record that I am not persuaded the husband established there would be such delay in obtaining a divorce in Costa Rica as to make that a material consideration. 

13. The husband had filed an affidavit by Esteban Soler, an attorney in Costa Rica, which took the form of answers to various questions posed by the husband’s solicitors.  In response to the question, “how long will either application for divorce filed in Costa Rica take to finalise?”, Attorney Soler responded:

    It is difficult to predict an exact timetable as to the ending of the divorce process in Costa Rica, because there are many variables that are involved in all litigation, such as the thrust of the parties to move the process forward, dates set by the Judge for certain hearings (evidence, conciliation) and appeals during the process or after the final ruling.  An educated guess would be anywhere from one or two more years for a final and definitive decision by the Family Court or appellate Courts on the divorce lawsuit.

14. This timeframe was significantly less than the estimate referred to in the following passage from an affidavit sworn by the husband’s Australian solicitor on 23 April 2008 in which he said: 

    3.I am instructed by the Applicant Husband and verily believe that he filed an Application for Divorce in San Jose, Costa Rica in November 2007, that the legal system in Costa Rica utilises a fault system to deal with Divorce and that the Application in Costa Rica would take 5‑10 years to determine. 

15. The husband had himself sworn an affidavit the previous day.  That affidavit referred to his visit to Costa Rica in November 2007, but it made no mention of the fact that he had commenced his own proceedings during that time.  It also contained no evidence of any advice he had received that his divorce application would take “5-10 years” to be completed.

16. The husband’s claims concerning delay in resolution of the proceedings in Costa Rica were firmly placed in issue by evidence led on behalf of the wife.  Her attorney in Costa Rica, Luis Alvarez Mora, deposed as follows in his affidavit sworn on 23 May 2008:

    1.A divorce process in Costa Rica does not take 10 years to come to its conclusion.

    2.Process is straight forward, with very specific times set by the Civil Proceedings Code…

17. Attorney Alvarez Mora swore a further affidavit on 23 November 2008 alleging that after the wife’s divorce application was filed in May 2007, “for many months I attempted to serve [the husband] with the documents however he did not make his whereabouts known and avoided service”.  Details of this allegation were contained in paragraph 4 of his affidavit.

1. Attorney Alvarez Mora swore yet another affidavit on 26 November 2008 in which he said:

   10.If [the husband] was to cooperate fully with the proceedings here in Costa Rica this case could have been already finished, in its first stage.  I expect that the application could finalise as early as eight months to a year for [sic] now, this because of the delays that the process has suffered.

   11.[The husband] filed in Costa Rica a Judicial Separation process in Court, on February 2008, before the Costa Rican courts, and he is not asking for a divorce, even though he would have been able to do so, but to my point of view he is only using that process to delay more any possible divorce.  Pending matters related to property and to the child’s custody are there.

   12.When his attorney in San Jose, filed in Court his response to the divorce proceedings on August 5th, 2008, ten months after [the husband] had issued his Power of Attorney for the lawyer he is asking the judge not to issue a divorce for they have not been separated for more than three years.

   13.If [the husband], gets a divorce in Australia, nothing prevents [the husband] from trying to register that divorce before the Costa Rican Authorities, and therefore [the wife] will be forced to fight that, and her divorce process in Costa Rica, will stop indefinitely, until that matters gets a Judgment before the Supreme Court.  He has been delaying the process for long, and this could perpetuate [the wife’s] process in Costa Rica, for an undefined period of time.

   …

   15.Our divorce process in Costa Rica is moving forward now, and we got served today that the file is being sent to the Conciliation Office of the Court, for a Conciliation Hearing.

2. In her affidavit sworn on 23 November 2008 the wife also claimed that the husband had delayed the proceedings in Costa Rica by avoiding service until November 2007, when he filed his own application.  She went on:

   14.The Application on foot in Costa Rica is progressing only at the pace that the [the husband] allows, he is not making himself available for the deposition and conciliation phases.  It has only drawn out the matter, had the [husband] actively participated then the process may well have finalised in this country and he would be free to remarry in Australia…

3. As the dispute below was conducted on the papers it was not open to the Federal Magistrate to determine factual disputes such as the likely timeframe of the proceedings in Costa Rica and whether or not the husband had been procrastinating as alleged.  I observe, however, that in the outline of argument filed by the husband nothing was said to suggest to the Federal Magistrate that he should take account of likely delay in resolution of the proceedings in Costa Rica, although I accept that some reference was made to delay in the oral submissions. 

4. Whilst the husband asserted it was the wife who had been delaying the proceedings, the husband’s application to have her divorce application dismissed for want of prosecution was itself dismissed in Costa Rica on the basis that it lacked “legal remedy”.  Although a translation of the court’s reasons was provided, much appears to have been lost in translation.  It was, however, asserted by Attorney Alvarez Mora that the reasons, properly understood, reveal that the court had rejected the application because it was the husband who had caused the delay. 

Conclusion on Ground 1

1. I am not satisfied there is substance in the complaint that the Federal Magistrate did not have regard to the evidence of the husband that he wished to obtain a divorce so he could remarry.  This is because:

   ·the Federal Magistrate had recorded his acceptance of the fact that the husband had applied for a divorce so he could remarry;

   ·both parties wanted a divorce;

   ·there were proceedings for divorce in both countries;

   ·there was no finding that the wife was delaying the proceedings in Costa Rica; and

   ·it was common ground a divorce granted in Costa Rica would be recognised in Australia.

2. I should also observe for the sake of completeness that the assumption in this first ground of appeal is that the husband’s application for divorce would succeed, thus freeing him to remarry. In my view this was by no means a foregone conclusion. Whilst the husband had made out the ground for divorce, there remained the issue of the declaration required pursuant to s 55A(1)(b)(i) of the Family Law Act1975 (Cth) that “proper arrangements in all the circumstances have been made for the care, welfare and development” of the only child of the marriage.

3. In the event the court was not prepared to make that declaration, the divorce order would not take effect unless the court declared its satisfaction that there were circumstances by reason of which it should take effect even though the court was not satisfied proper arrangements had been made for the child (s 55A(1)(b)(ii)). 

4. The making of one or other of the declarations available under s 55A(1) is an integral part of the Australian divorce process and not to be treated as a mere formality.  For a discussion of the historical and continuing importance of the declaration relating to the welfare of children affected by marriage breakdown, see Opperman and Opperman (1978) FLC 90-432. In that case the majority (Watson SJ and Murray J) referred to the “stringent duty” cast on the Court when exercising the protective role mandated by s 63 (the predecessor of s 55A). 

5. This Court again stressed the importance of the s 55A declaration in Maunder v Maunder (1999) FLC 92-871 at [35], where it was observed that:

   [t]he provisions of s 55A are mandatory and express a firm policy not to allow parties to be divorced without giving appropriate consideration to the arrangements that have been made for the welfare of the children to the marriage. 

6. The Court placed particular emphasis in Maunder (at [28]) on the fact that the husband, who was the applicant for the divorce, lived “outside the jurisdiction of the Court and not immediately amenable to any procedural orders…which would then lead to proper child maintenance orders being made”. In the present case, it is the wife who lives overseas, but the proceedings concerning the welfare of the child are occurring in Costa Rica and there may well be issues associated with the enforceability of any orders made in that country for the support of the child. That is a factor that could have weighed heavily in the balance in determining the husband’s divorce application in Australia.

7. As this Court said in Abbott and Abbott (1995) FLC 92-582 at 81,775, the need to make the s 55A declaration “may attract a contest on a wider and less easily defined front” than other, more straightforward, aspects of the “no-fault” divorce process.

8. The arrangements for the child in the present case were contentious.  The boy lives in Costa Rica and there are proceedings concerning him in that country.  The husband contended he was being denied contact with his son.  The wife contended, inter alia, the husband had not paid child support.  The husband acknowledged in his divorce application that arrangements for support of the boy had not been settled.  In these circumstances, there is no basis for assuming that either of the available declarations under s 55A(1)(b) would be made.  If the husband failed on that issue he would not have been free to remarry anyway.  

9. For these reasons I find no substance in Ground 1.

Grounds 2 and 3 – proceedings not oppressive or vexatious

1. In some respects the second and third grounds are linked, and I therefore propose to discuss them together.  By these grounds the husband asserts:

   2.In determining that Australia was a clearly inappropriate forum the learned trial judge erred in regarding the proceedings brought by the Husband in Australia as being oppressive or vexatious.

   3.The learned trial judge ought to have found that there was no real likelihood that the Respondent Wife would suffer any real prejudice if a decree or dissolution of marriage was made by an Australian Court.

2. Ground 2 does little more than assert that the Federal Magistrate was wrong.  It does not address the issue of how he erred.  Ground 3, even if established, would not lead to a conclusion that the order of the Federal Magistrate should be discharged.  The finding his Honour was required to make before staying the proceedings was not whether the wife “would suffer any real prejudice” but whether the proceedings were oppressive or vexatious within the Voth sense of those words.

3. It was not the case, as was asserted on behalf of the husband, “that the only basis upon which the Wife succeeded was a finding that the proceedings [in Costa Rica] were commenced first in time”.  The Federal Magistrate made reference to a number of relevant factors in coming to his conclusion.  In doing so, he paid particular (and proper) regard to what was said by the majority in Henry about the commencement of proceedings in an Australian court where there are already proceedings pending elsewhere with respect to the same matter.

4. As the Federal Magistrate properly acknowledged, the husband in the present proceedings lived in Australia for many years before filing his application for divorce and the wife also spent some time living here.  Those facts distinguish the present case from Henry¸ where the husband had returned to Australia to live only shortly before filing his application for divorce, and the wife had never lived here.  Notwithstanding these obvious differences, there was much said by the High Court in Henry which is of critical importance in the present proceedings. 

5. It will be recalled that although the husband in Henry had commenced proceedings for both dissolution of marriage and property settlement, the appeal to the High Court concerned only the decision refusing to stay the dissolution proceedings (no decision having been made about what was to become of the property proceedings:  Henry at 582).

6. It is important to recall what had happened at first instance in Henry. The majority judgment in the High Court summarised the history of the three earlier decisions in this way (at 585-586, footnotes removed):

   The Judicial Registrar held, by reference to the decision of this Court in Voth v Manildra Flour Mills Pty Ltd  and the later decision of the Full Court of the Family Court in Gilmore v Gilmore, that the appellant had not made it clear that the Australian divorce proceedings were oppressive, vexatious or an abuse of process. The Judicial Registrar added that:

   in her answer objecting to jurisdiction [the appellant] asserts that the husband ... brought these proceedings to unfairly obtain substantial juridical advantage by rendering nugatory proceedings between the parties in Monaco and Switzerland. Yet the wife puts no evidence before this Court to support her assertion. In the absence of relevant evidence in proper form, I am at a loss to know how a decree of dissolution of marriage granted by this Court would affect proceedings between the parties in the Courts in Switzerland and Monaco, if at all.

   On review, Ross-Jones J adopted the Judicial Registrar’s reasoning and conclusions, in particular his conclusion that “the [appellant] failed to discharge the onus on her to satisfy the Court that it is so inappropriate a forum for determination of the proceedings for dissolution of marriage that continuation of the proceedings would be oppressive or vexatious to her or an abuse of process”.

   …

   … [T]he Full Court upheld the Judicial Registrar’s decision that the divorce proceedings should go ahead in Australia. An argument based on the limited connection of the parties or their property with Australia was dismissed by Nicholson CJ, with whom Fogarty and Finn JJ agreed, on the ground that although it “might have relevance to property proceedings ... [it was] entirely irrelevant to the issue before the Court”.  His Honour added that “[t]here are many applications for dissolution where the other partner has never lived in Australia and that has never been regarded as a basis for refusing jurisdiction”.

7. The High Court, in allowing the appeal, addressed the concerns that had been expressed by this Court in Gilmore and Gilmore (1993) FLC 92-353 about the implications of the Voth test in matrimonial proceedings.  The concern expressed was that the test would lead to increased forum shopping and jurisdictional conflict.  In responding, the majority in Henry said (at 590):

   There appears to be an assumption in Gilmore that the duplication of proceedings in another country is not, of itself, relevant to the question whether Australia is a clearly inappropriate forum.  Certainly, that assumption was made in the present case, the Judicial Registrar having proceeded on the basis that the proceedings in Monaco should be taken into account only if they or the proceedings in Switzerland would be affected by the Australian proceedings.

8. Their Honours considered such an assumption to be unjustified.  They went on to say at 590 – 591 (emphasis added, footnotes omitted):

   Foreign proceedings usually fall for consideration in a context in which they involve the same or related factual issues as those involved in the local proceedings, but not the same legal issue and, perhaps, not the same parties. Even in cases of that kind it may sometimes be appropriate to grant a temporary stay of the local proceedings to allow the factual issues to be determined in the other jurisdiction. There are 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 and with respect to the same issue or controversy.

   Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia. In Union Steamship Co of New Zealand Ltd v The Caradale, Dixon J observed of that latter situation that “[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration”. From the parties’ point of view, there is no less - perhaps, considerably more -  inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.

   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.  

   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 legal 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.

9. The majority in Henry concluded (at 593):

   The appellant is… entitled to complain that no or insufficient regard was had to the fact that there were proceedings on foot in Monaco. As already indicated, a divorce decree granted in the Monegasque proceedings instituted by the appellant will be recognised in Australia. In these circumstances and assuming the jurisdiction of the Monegasque court to entertain her proceedings, the fact that those proceedings were on foot was, itself, a most material consideration.

10. In his separate judgment in Henry, Brennan CJ said at 580:

    The institution of marriage is of fundamental legal and social significance, but the married status is of little significance to the legal system or society of a territory in which the parties have never lived as man and wife, where there are no children of the marriage and where there is no substantial amount of property belonging to the spouses or on which a spouse might reasonably be thought to have a claim by virtue of the matrimonial relationship. The courts of such a territory are prima facie inappropriate fora in which to institute proceedings for a decree of dissolution of the marriage. That is the present case.

    In my opinion, it is neither necessary nor appropriate to consider what effect an Australian decree of dissolution of marriage might have on property situated in either Monaco or Switzerland. It is sufficient for the appellant to show an absence of any connection between the marriage and its incidents on the one hand and Australia on the other. (By “incidents”, I mean children of the marriage and property on which the spouses or either of them might reasonably be thought to have some claim by reason of the matrimonial relationship.)  

11. In the present matter the Federal Magistrate recorded the facts which showed there was a greater connection with Australia than there was in Henry.  However, he also recorded the facts establishing not only that the parties were married in Costa Rica, but also that there were none of what Brennan CJ has called the “incidents” of the marriage in Australia. 

12. In considering these factors, the Federal Magistrate was clearly anxious not to make the same error found to have been made in Henry, where the Judicial Registrar (and others) proceeded on an assumption that the existence of parallel proceedings could only be taken into account if the foreign proceedings would be affected by the Australian proceedings.

13. The Federal Magistrate’s anxiety to avoid error is apparent not only from the fact that he recited portion of the lengthy passage I have reproduced from Henry, but also because of the careful way in which he expressed himself when identifying the second of the factors leading to his decision that Australia was a “clearly inappropriate forum”.  That conclusion is worth repeating: 

    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 [the husband] 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. 

14. The ground of appeal contesting the finding concerning the point at which the husband became aware of the wife’s divorce application was not pressed.  I therefore proceed on the basis that the Federal Magistrate was correct in finding that the husband knew the wife had commenced proceedings in Costa Rica before he commenced proceedings here.   

15. In all these circumstances, his Honour was right to proceed on the basis that prima facie the husband’s application was vexatious and oppressive in the Voth sense.  The husband had not only commenced divorce proceedings in Australia knowing that divorce proceedings were already pending in Costa Rica, but he had also participated in the foreign divorce proceedings, having sought to have them dismissed for want of prosecution.  He had himself invoked the jurisdiction of the Costa Rican courts by seeking a “legal separation”, which the Federal Magistrate found was “either a divorce order, or a prerequisite to the granting of a divorce order”.  He had also sought other relief in Costa Rica in relation to matters arising from the breakdown of the marriage.

1. The fact the wife had made out a prima facie case was, of course, not the end of the matter.  The existence of parallel proceedings was highly relevant, but the proceedings themselves still needed to be analysed in order to determine whether the husband’s application in Australia was “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”. 

2. In undertaking his analysis, the Federal Magistrate was right to draw attention to what had been said in Henry concerning the fact that whilst there may be many elements of a dispute arising from the breakdown of marriage, it is the marital relationship itself that lies at the heart of all proceedings, and hence the competing proceedings will ordinarily be concerned with the same controversy.  As the Federal Magistrate placed particular significance on this factor, I consider it instructive to repeat what was said by the majority in Henry on this topic at 591-592:

   If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of 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.

   Although the appellant first brought proceedings against the respondent in Monaco for judicial separation 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 brought in Australia by the respondent. And although it may not be quite so clear, the property proceedings instituted by the respondent in the Family Court are but an aspect of his 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. As such, it is properly to be seen as part of the controversy with respect to that relationship.

3. The majority in Henry went on to discuss what considerations may be relevant to a stay of proceedings between husband and wife with respect to their marital relationship. In doing so they said at 592–593 (emphasis added):

   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, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage… [I]f 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 other countries and, if so, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.

   Other considerations include the order in which the proceedings were instituted, the stage 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 of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider 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. 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.

4. Callinan J (albeit in dissent) in Zhang at [199] referred to the final sentence of the above quotation and said, with justification in my respectful view, that the language used “does not suggest that any narrow view should be taken by a court in deciding inappropriateness”.

5. The principles stated in Henry concerning the marital relationship itself constituting the subject of the controversy were referred to with approval by the majority of the High Court in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345. The majority distinguished Henry by saying at 399:

   The situation involved in the present case is not precisely the same as that considered in Henry v Henry. In that case, the parties were identical and the same subject matter, namely, the parties’ marital relationship, was involved in both proceedings. There is not the same correspondence of subject matter in this case…

6. Brennan CJ dissented in relation to the outcome in Cigna, but the following statement of his Honour (at 373) is, in my respectful opinion, consistent with authority and with what was said by the majority:

   In some cases, it would not be appropriate to divide the matters in controversy in order to consider whether an anti-suit injunction should issue and, if issued, the form and scope of the injunction.  In some cases, the fact that the foreign court could determine all the matters in controversy while the jurisdiction of the domestic court was limited to the determination of some only of those matters would be a powerful consideration telling against the issue of an injunction.  That fact could, depending on the circumstances, show the domestic court to be a clearly inappropriate forum to determine the limited matters in dispute.  These considerations are relevant when an application for an anti-suit injunction depends on no more than the relative advantages of the foreign and domestic fora in determining the entire controversy between the parties.  But each case turns on its own facts.

7. Brennan CJ went further, at 379, by saying (emphasis added):

   In Henry v Henry, where proceedings for dissolution of marriage were commenced in both Monaco and Australia, the existence of parallel proceedings necessarily established that one of them was, in the strict sense, vexatious and oppressive.  As the Monegasque proceedings were on foot when the Australian proceedings commenced, that fact was a most material consideration in determining whether the Australian Court was a clearly inappropriate forum.

8. The concept of the marital relationship being the relevant “controversy”, rather than there being a number of separate controversies, was applied by this Court in Ferrier-Watson v McElrath (supra).  That was a case where the husband had applied for a divorce in Australia after the wife had commenced proceedings in Fiji for a judicial separation and maintenance, having earlier successfully prosecuted proceedings in Fiji for maintenance.  The wife had not sought a divorce in Fiji because of the associated social stigma.  The husband could not apply for divorce in Fiji unless he was domiciled in that country, and the finding was that he was domiciled in Australia.   

9. In setting out their reasons for allowing the appeal against the order refusing to stay the divorce proceedings in Australia, the majority in Ferrier-Watson v McElrath (Holden and Jerrard JJ) said at [102]:

   We consider that the passages in the judgment in Henry … make it clear enough that there is but one dispute between these parties, that being the marital relationship.  That matter, with its various facets, was being litigated in Fiji before the husband filed proceedings here. 

10. Holden and Jerrard JJ went on to consider the various matters identified in Henry as being relevant to a stay of proceedings on forum grounds, and concluded that the trial Judge had not given adequate weight to those matters, which they found “in combination make this Court a clearly inappropriate forum at this time”.  

11. Finn J in dissent in Ferrier-Watson v McElrath placed emphasis on the observation of the majority in Henry (at 593) that “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”. Her Honour also said:

    29.As to the assertion… that his Honour erred in his statement … that there was “no competing application” in the Fijian court to the Australian dissolution application, it is true that the majority judgment in Henry …  makes it clear that in cases (such as the present where a stay is sought of Australian proceedings where there are foreign proceedings pending) it is not necessary that an identical form of relief be sought in both the Australian and the foreign proceedings, but rather that both proceedings are “in essence, proceedings with respect to [the parties’] marital relationship”.

    30.However, it is difficult to imagine, given his Honour’s close analysis of the decision in Henry, that he would have overlooked the point made (as it is over two paragraphs) in the High Court majority decision that it is not necessary that the Australian and the foreign proceedings be identical.  Rather, it seems to me that his Honour intended to, and did in fact, place weight on the fact that there was no application for divorce on foot in Fiji.  This was clearly an issue of significance to his Honour given the stress that he had earlier placed… on the fact that the wife had not sought a divorce in Fiji and on the finding that the husband, if found to be domiciled in Australia, would not be able to do so.  Given these two matters, it is understandable that his Honour attached weight to the fact that in all the various proceedings between this married couple, there was only one application for dissolution of their marriage, being the one in Australia brought by the husband (who was the only one of the parties who apparently had an interest in having the marriage dissolved).

    31.But even if I am wrong in my interpretation of his Honour’s reasons and of the apparent significance which he placed on the fact that there was only one dissolution application pending, with the result that his Honour’s finding that there was “no competing application” is in fact erroneous when read in the light of the majority decision in Henry, that consideration would not, at least by itself, be a sufficient reason for allowing this appeal.  I say this because, in my view, there is nothing in the High Court decision which requires that where there are foreign proceedings pending, and proceedings in an Australian court are subsequently commenced with respect to “the same controversy”, that the Australian proceedings must automatically be stayed - although it is clearly a very significant factor in favour of the grant of a stay.  [emphasis in the original]

12. Ferrier-Watson v McElrath was not referred to in submissions.  The decision is nevertheless of interest because the majority were satisfied that the Australian divorce proceedings were oppressive and vexatious in the Voth sense, notwithstanding that the wife had chosen not to seek a divorce in Fiji, while at the same time the husband was apparently precluded from seeking a divorce in that country.  (In the context of the first ground of appeal it is also noteworthy that the majority recorded at [58] that the husband and his partner, who was pregnant at the time of the hearing, intended to marry “as soon as they legally can”.)

13. Although Finn J dissented, she accepted that the divorce was part of “the same controversy”.  Her Honour’s point of departure from the majority was because Australia was the only country in which a divorce was being sought, and indeed, so it seemed, was the only place in which the husband could obtain a divorce. 

14. Whilst reference to factual scenarios in other cases is rarely helpful in dealing with complaints about the exercise of judicial discretion, it might be thought that Ferrier-Watson was a far weaker case for a stay of proceedings than the present, in which a divorce is being sought in both countries.  Yet, in that, case the majority concluded Australia was a clearly inappropriate forum.

15. The concept of the marital relationship being the relevant “controversy” was again applied by this Court in Dobson and Van Londen (2005) FLC 93-225. (An application for special leave to appeal to the High Court was refused.) On this occasion, Finn J was the presiding Judge and joined with May and Boland JJ in saying at [46] and [48] (emphasis added):

    As we indicated at the outset of this discussion, we accept for the reasons advanced in the submissions of Counsel for the husband, that the observations contained in the joint judgment in Henry concerning the need to treat issues arising between husband and wife as forming but one single controversy arising out of the matrimonial relationship, have application not only when considering a stay of local proceedings on forum non conveniens grounds, but also when considering the grant of an anti-suit injunction…

    …

    As we have said, we are persuaded, having regard to the submissions of Counsel for the husband directed to the common test of vexation or oppression, that the passage in question from Henry would have application to the grant of an anti-suit injunction in relation to matrimonial proceedings, and thus the unity of matrimonial causes should be the starting point, so to speak, of any consideration of an application for such an injunction in such proceedings.

16. Dobson and Van Londen involved an application for an anti-suit injunction.  The High Court had earlier, in Cigna (supra), also considered the meaning of “vexatious or oppressive” in the context of such an application.  I nevertheless consider observations made in that case are of importance here.  The majority in Cigna said at 393-394 (footnotes omitted):

    More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Co, if “complete relief” is available in the local proceedings.

17. Although the majority in Cigna recorded, at 390, that the principles relating to stay orders and anti-suit injunctions are not precisely the same, there is nevertheless a common test of “vexation or oppression”. That being the case, the corollary of the principle stated in the citation above is that proceedings commenced in the local forum are vexatious or oppressive if there is nothing which can be gained by them over and above what could be gained in foreign proceedings already underway – i.e. where “complete relief” is available in the foreign proceedings. That approach would accord with the view expressed by Brennan CJ, namely that “the existence of parallel proceedings necessarily established that one of them was, in the strict sense, vexatious and oppressive”.

18. I accept that this Court has, on occasion, accepted that Australia may be a clearly inappropriate forum in which to litigate one “cause of action”, whilst at the same time being prepared to hear other matrimonial disputes between the same parties.  Kemeny v Kemeny (1998) FLC 92-806 is a good illustration of where that is an appropriate outcome.

19. To the same effect, in Sankil and Sankil (2007) FLC 93-351, this Court considered there was force in the argument that the trial Judge had erred in staying all proceedings in Australia (including the husband’s divorce application) in favour of the courts of India in circumstances where there was no application for divorce in the proceedings in India. Importantly, however, the Court went on to say at [75] that the “technical success” of that complaint:

    may be of little assistance to the husband given that by the time the appeal was heard, the wife had, according to her letter of 10 October 2006, commenced divorce proceedings in India. This would be a matter which could be the subject of evidence in proper form should there be a reconsideration of the matter by ourselves, or a court at first instance, should we conclude that his Honour had fallen into appealable error. Furthermore it would seem that proceedings for judicial separation which the wife had instituted are a precondition to proceedings for a divorce in India. [emphasis added]

20. In Sankil the Court determined that the appropriate course was to stand over the appeal to allow evidence to be provided concerning whether the Indian courts had determined they had jurisdiction.  The Full Court foreshadowed that if the Indian courts assumed jurisdiction, there would be no basis to interfere with the decision to stay the Australian proceedings.  In foreshadowing that intention, the Court clearly anticipated that the wife would, by that stage, have proved that she had indeed commenced divorce proceedings in India, thereby retrospectively justifying the trial Judge’s decision to stay that part of the proceedings as well.

21. In my view, consideration of the authorities I have discussed establishes that the decision of the Federal Magistrate to stay the proceedings was within the proper exercise of his discretion.

22. There is, however, a further matter which would be of significance in the event it was necessary to rebut the complaint that the Federal Magistrate erred in finding there was “no real likelihood that the Respondent wife would suffer any real prejudice if a decree of dissolution of marriage was made by an Australian Court”.  This relates to his Honour’s finding that any divorce obtained in Australia is not likely to be recognised in Costa Rica.  If that is so, and there was no appeal against the finding, it would follow that the husband would be free to remarry in Australia but the wife would not be free to remarry in Costa Rica. 

23. It is apparent from paragraph 29 of the Federal Magistrate’s reasons that the absence of reciprocal recognition of divorce decrees was found to be a material consideration.  In the event the husband obtained his divorce in Australia, any incentive he might have had to cooperate in concluding the proceedings in Costa Rica expeditiously would potentially disappear.  He would be free to remarry, but the wife would not.

24. As already observed, the wife’s attorney gave evidence about the delay and inconvenience that would be caused to the wife’s application for divorce in Costa Rica if the husband attempted to register the Australian divorce in that country.  Whilst the Federal Magistrate found that an  Australian divorce was “not likely to be recognised”, this would not, it seems, prevent the husband from trying to have it registered, thereby potentially delaying the wife’s application to obtain a divorce that would be recognised in her own country. 

1. The wife applied to adduce further evidence relating to the accuracy of his Honour’s finding that an Australian divorce was not likely to be recognised in Costa Rica; however, that application was pursued only in the event we found merit in the appeal and proposed to re-determine the substantive application.  I  do not propose to have regard to that material as Ryan J and I have concluded there is no merit in the appeal.   

2. I also do not consider it necessary to discuss the merit of arguments advanced on behalf of the wife concerning other prejudice she would suffer in Costa Rica in the event the husband was permitted to proceed with his application in Australia.  To do so would involve the Court delving into Costa Rican law (in circumstances where the expert evidence was less than helpful) and it would also require consideration of factual matters, such as existence and ownership of property.  Engaging in such an exercise would transfer the focus to the foreign proceedings at the expense of concentrating on the “inappropriateness of the local court”. 

3. I do accept, however, that the Federal Magistrate made reference (in paragraph 35) to the evidence of the wife’s attorney that there “may be a significant disadvantage visited upon [the wife] if a divorce order is made in Australian and it is afforded recognition in Costa Rica”.  It is important to note, however, that his Honour almost immediately went on to say, “But as I have set out above, it is unlikely that an Australian divorce decree would be afforded recognition”.   There is no indication that this matter played any part in his Honour’s decision.

4. For these further reasons I find there is no merit in these grounds.

Outcome and costs

1. For the reasons I have given, I would dismiss the appeal. 

2. In doing so, I observe that no argument was advanced by the husband to suggest, as an alternative to his primary argument, that the Federal Magistrate erred in dismissing the divorce application rather than staying it.  His Honour recognised that both options were available, and invited submissions as to which was more appropriate.  We were not provided with a copy of any submissions made or any reasons his Honour gave for electing to dismiss the application outright.  

3. Counsel for the husband conceded costs should follow the event.  The husband should pay the wife’s costs, to be assessed if not agreed. 

O’RYAN J

Introduction

1. I have had the opportunity to consider the reasons for judgment of Thackray J and also of Ryan J.  I would allow the appeal and remit the matter for rehearing.

Background

1. As to the relevant background I also adopt what Ryan J has said in her reasons.  However, I will briefly repeat some of the history. 

2. The Wife was born in Costa Rica in 1948 and the Husband was born in Columbia in 1967.

3. In January 1997 the parties were married in Costa Rica where they lived until they moved to Australia.  The child of the marriage was born in Costa Rica in January 1998. 

4. In 1999 the parties and the child arrived in Australia where they intended to live and where the Husband has lived ever since.  During 1999 the Husband was granted permanent residence in Australia. 

5. The Wife found living in Australia difficult and thereafter she and the child travelled between Costa Rica and Australia.  For a period of time the Wife and the child lived in New Zealand.

6. On 31 July 2005 the Wife left Australia with the child and went to Costa Rica where they have since resided.  The Husband contended that this occurred without his knowledge or consent.  The parties have not resumed cohabitation.  The Husband, however, has remained living in Australia.  He is a health professional and carries on practice in Australia.

7. The period of cohabitation was approximately eight years of which the parties spent a considerable part of their relationship in Australia.

8. In or about February/March 2007 the Husband contacted the Wife and her Costa Rican lawyer to advise of his intention to file a divorce application in Australia and to seek legal separation in Costa Rica, as the term for divorce required by Costa Rican law, being a minimum of three years separation, was not completed. 

9. On 30 March 2007 the Husband sent an email to the Wife providing her with contact details of his lawyers in Australia.  In an affidavit sworn by the Wife on 23 November 2008, she admitted in paragraph 4 that in “early 2007, [the Husband] contacted [her] by email, and also by phone, and he requested that he wanted to divorce”. 

10. On 2 May 2007 the Wife filed an application for divorce in Costa Rica. 

11. On 6 May 2007 the Wife sent the Husband an email in which she informed him she had submitted divorce papers in Costa Rica.

12. As Ryan J observed, in her divorce application, the Wife relied upon a factual separation for more than three years.  A copy of the divorce application, however, was not put in evidence before the Federal Magistrate.  As Ryan J also observed, the Wife contended that the parties separated during 2002.  However, the Wife did not put in issue the Husband’s contention that the parties last cohabitated in Australia. 

13. On 24 October 2007 the Husband filed an application for divorce in the Federal Magistrates Court, Brisbane Registry.  The proceedings in the Federal Magistrates Court only relate to dissolution of the marriage. 

14. There is no issue that the Federal Magistrates Court has jurisdiction to hear and determine the application of the Husband and that the jurisdiction was regularly invoked.

15. The parties have been separated for a period in excess of five years and they are both seeking a divorce.  As Ryan J observed, there is no dispute that by the facts the Husband relied upon, he has established the ground for divorce.

16. In November 2007 the Husband went to Costa Rica and spent time with the child.  In November 2007 the Husband granted “special judicial proxy” to an attorney in Costa Rica whereby he authorised the attorney to represent him in the Wife’s “abbreviated divorce trial”.  The Husband also applied in Costa Rica for legal separation from the Wife and visitation rights to the child.

17. On 23 April 2008 the Wife, by leave, filed in the Federal Magistrates Court a response to the Husband’s divorce application and sought that it be permanently stayed or dismissed.  As Ryan J observed, in the response the Wife conceded facts, which, had the Federal Magistrate not dismissed the divorce application, would have entitled the Husband to a divorce.

18. On 26 June 2008 the Husband, through his attorney, applied for an order that the Wife’s divorce proceedings in Costa Rica be dismissed.  It was contended by the Husband that notwithstanding a series of orders from the Second Family Court in Costa Rica, more than 12 months later the Wife had not caused the Husband to be served.  While the Husband’s dismissal application was pending, the Wife’s attorney served the Husband’s attorney with the divorce application. 

19. On 5 August 2008 the Husband filed in Costa Rica an answer to the Wife’s divorce application.  As Ryan J observed, in this answer the Husband made no challenge to the Costa Rican Family Court’s jurisdiction. 

20. On 19 August 2008 a judge of the Second Family Court in Costa Rica refused the Husband’s application to dismiss the Wife’s divorce application. 

21. On 27 November 2008 the applications filed in the Federal Magistrates Court were heard by the Federal Magistrate.  On 30 January 2009 his Honour dismissed the Husband’s divorce application and delivered reasons for judgment.

Relevant Principles

Introduction

1. This is an appeal against a discretionary decision and as Heydon and Crennan JJ observed in Puttick v Tenon Limited (2008) 238 CLR 265 at 285 it has to be established that the primary judge made an error of law or fact or wrongly failed to consider a relevant matter or wrongly considered an irrelevant matter or that the conclusion “was so unreasonable as to point to the existence of any otherwise undiscoverable error of those kinds”.

2. Ordinarily, questions of forum should be dealt with expeditiously and the judgment in such matters should not require lengthy reasons: Voth v Manildra Flour Mills Proprietary Limited and Another (1990) 171 CLR 538 at 565 per Mason CJ, Deane, Dawson and Gaudron JJ. However, the requirement of a trial judge to give reasons for judgment, and the extent of the obligation, is well established: Rolling v Rollings (2009) 230 FLR 396 at 412 to 413.

3. A court has a prima facie obligation to exercise its jurisdiction regularly invoked.  As Deane J observed in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 241: “A party who has regularly invoked the jurisdiction of a competent court has a prima facie right to insist upon its exercise and to have his claim heard and determined”.

4. However, in certain circumstances, a court may decline to exercise its jurisdiction and one such exception is forum non conveniens.  A court may exercise inherent power to decline to exercise its’ jurisdiction because of the responsibility of courts to prevent abuse of their processes: see Voth per Mason CJ, Deane, Dawson and Gaudron JJ at 554. In CSR Limited v Cigna Insurance Australia Limited and Others (1996-97) 189 CLR 345 Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ at 391 observed that “the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice” (footnotes omitted).

5. Whether detailed reasons are required or not, it obviously depends on the circumstances of each case and the issues that require consideration and adjudication.  However, it should be possible from the reasons, to readily identify which of the factors was relevant to the decision whether or not to stay proceedings and why.

Inappropriate forum

1. In Voth, Mason CJ, Deane, Dawson and Gaudron JJ at 564 formulated the principle that a stay of proceedings in an Australian court should only be granted if it is a “clearly inappropriate forum”. The majority at 556-57 rejected the traditional test of injustice and at 557-61 refrained from approving the mere balance of convenience test suggested in English authorities: see Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460.

2. The clearly more appropriate forum test was summarised in the remarks of Lord Goff in Spiliada when he indicated at 476-77 that a stay would only be granted if the court was satisfied that there was some other available forum, having competent jurisdiction, which was the more appropriate or “natural forum” for the trial of an action. Lord Goff observed at 478 that the natural forum was that with which the action “had the most real and substantial connection” and that “it is for connecting factors in this sense that the court must first look”. Thus, the “natural forum” was determined by reference to a number of connecting factors, which Lord Goff identified at 478 as those affecting the convenience and expense to the parties such as the availability of witnesses; the law governing the relevant transaction and the places where the parties respectively reside or carry on business. The process therefore involves balancing or weighing all of the factors including what Lord Goff at 482-84 identified as the significance to a plaintiff of losing any legitimate personal or juridical advantage available in the local forum.

3. In Voth the majority observed at 554:

   First, a plaintiff who has regularly invoked the jurisdiction of a court has a prime facie right to insist upon its exercise.  Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case.  Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction will provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay.  Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised “with great care” or “extreme caution”. 

4. In Voth, the majority adopted, subject to some modification, the reformulation of the traditional test favoured by Deane J in Oceanic Sun Line at 247-48.  It is necessary for the party seeking a stay of the local proceedings to show that the local court is a clearly inappropriate forum which will be the case if continuance of the proceedings will 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”.  The terms “oppressive” and “vexatious” are read in a broader sense than envisaged under the traditional test.

5. Although in Voth the majority rejected the clearly more appropriate forum test in favour of the clearly inappropriate forum test, the majority recognised at 564-65 that in applying the principles described by Deane J in Oceanic Sun, “the discussion by Lord Goff in Spiliada of relevant ‘connecting factors’ and ‘a legitimate personal and juridical advantage’ provides valuable assistance” (footnotes omitted).  In Voth the majority also found at 558 that the availability of relief in a foreign forum would always be a relevant factor in deciding whether or not the local forum is clearly inappropriate.

6. The two tests are not identical and the difference lies in the emphasis placed on the appropriateness of the local forum rather than the appropriateness of any available foreign forum.  The clearly inappropriate test avoids a mere comparison between the competing forums and focuses on the extent to which the continuation of the proceedings in the Australian court should be regarded as inappropriate.  The question of whether an Australian court is a clearly inappropriate forum requires attention to be directed to the inappropriateness of that court and not to the appropriateness or comparative appropriateness of the foreign forum.  As the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) observed in Regie Nationale des Usines Renault SA and Another v Zhang (2002) 210 CLR 491 at 503: “Thus, it should at once be noted that a court is not an inappropriate forum merely because another is more appropriate”.

7. The test received further consideration by the High Court in Henry v Henry (1996) 185 CLR 571. In that case the husband was an Australian by birth and retained his Australian citizenship. The wife was a German national. The parties were married in Germany and established their first home in that country. In 1988 the husband rented premises in Monaco and from 1989 until separation in late 1992 or early 1993, the husband and the wife resided in that country. During the relationship the parties never spent any time together in Australia. However, each party made separate trips to Australia. The husband had business interests in Europe, North America and Asia and bank accounts in Monaco, New York and Switzerland. The husband’s assets in Australia were minimal and were acquired after the parties separated.

8. After the parties separated the wife continued to reside in Monaco.  In December 1992 the husband commenced proceedings in Monaco by filing a petition for conciliation which was the first step in the process for divorce.  In February 1993 the petition was dismissed because the husband failed to appear before a conciliating magistrate.  The husband then left Monaco and in October 1993 surrendered his Monegasque residency.  The husband arrived in Australia in 1993 and rented accommodation in Sydney.  The husband contended that he intended to reside permanently in Australia. 

9. In March 1993 the wife instituted proceedings in Monaco initially for judicial separation.  In August 1993 the wife converted those proceedings to a petition for divorce and also sought orders for property settlement on the basis of an equal division of assets acquired during the marriage pursuant to German law and also for maintenance.  In November 1993 the husband commenced proceedings in the Family Court seeking dissolution of marriage and property settlement.  The husband sought that his financial obligations to the Wife be determined by an order that he pay to the wife 20 per cent of the balance of money held by the husband in certain Swiss bank accounts.  To found the jurisdiction of the Family Court the husband relied on his domicile in Australia.

10. Following a finding of non-reconciliation, the husband was summoned to appear before the Tribunal of First Instance in Monaco in January 1994.  The husband, however, contested the jurisdiction of the Tribunal and the issue of jurisdiction was ultimately resolved against him.

11. The wife contested the Australian proceedings on a number of bases including that the Australian court was forum non conveniens.  The husband was successful on all issues before the Full Court which pronounced a decree nisi for dissolution of the marriage.  The wife was then granted leave to appeal to the High Court on the forum non conveniens issue and her appeal was successful.  In Henry, there are two reasons for judgment being the single judgment of Brennan CJ and a joint majority judgment of Dawson, Gaudron, McHugh and Gummow JJ. All agreed that the decree nisi should be set aside and a stay of the dissolution proceedings granted. The majority observed at 582 that the appeal was brought in circumstances where no consideration had been given to the question whether the property proceedings should also go ahead in Australia.

12. In Henry Dawson, Gaudron, McHugh and Gummow JJ confirmed that the clearly inappropriate forum test applied in proceedings under the Family Law Act 1975 (Cth). However, there are two features of the circumstances of Henry that have to be considered.  First, there were proceedings in the foreign forum that were commenced before proceedings were commenced in Australia.  Thus, there was lis pendens.  Second, the proceedings in the foreign forum and the proceedings in the local forum were for divorce.

13. In Henry, Dawson, Gaudron, McHugh and Gummow JJ held that where a stay of proceedings is sought on the ground that litigation is pending in another jurisdiction between the same parties on the same subject matter the Voth test must be applied. Their Honours observed at 591: “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” (footnotes omitted). However, their Honours also said at 591:

    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 proceeding 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 or 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.

14. Then when dealing with the concept of the “same controversy” where there are proceedings between a husband and wife with respect to their marital relationship, in Henry, Dawson, Gaudron, McHugh and Gummow JJ observed at 591- 92:

    If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects.  However, the proceedings will ordinarily be concerned with the same controversy.  And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes.  The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status, especially proceedings for the dissolution of marriage.  In such cases, it is the marital relationship itself which is the subject of controversy.  And if the marriage is still subsisting, disputes with respect to property, maintenance and custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship. 

1. In their separate reasons, my learned colleagues consider the extent to which, in forum cases, reasons are required. This issue was discussed in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. The majority, per Mason CJ, Deane, Dawson and Gaudron JJ at 565 spoke about the desirability in “ordinary” forum cases for the primary judge to receive “short, written (preferably agreed) summary identification of the relevant connecting factors” supplemented by brief oral addresses. In these circumstances, it would be generally appropriate for the primary judge to give brief reasons, which indicate which submissions were adopted. Their Honours, at 565 also acknowledge there will be forum cases in which the primary judge “may conclude that it is desirable to give detailed reasons why the local forum… is or is not a clearly inappropriate one”. The point which is there made, is that where facts are not agreed or even where agreed, issues about the effect of the local law and of weight may be complex, in order to determine the facts which need to be found to explain why the local forum is clearly inappropriate, more detailed rather than brief reasons may be required. Voth is not authority for the proposition that a judge tasked with determination of forum cases may “elect” to provide reasons.   

The Federal Magistrate’s reasons

1. Although no error was alleged in relation to his Honour’s statement of the law, it is instructive to set out his key statements of the applicable law.  At the start his Honour said:

   3.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 ((1998) 165 CLR 197 at 247.

   4.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 state 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.

   5.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.

2. To a considerable extent, the matters of chronology outlined earlier under the heading “Background facts” followed his Honour’s statement of the law.  Thereafter, his Honour considered those Henry factors listed above which he considered relevant.    

3. Concerning the husband, his Honour correctly recorded that he is a Columbian citizen who has had permanent residence in Australia since 1999.  Since 1999, the husband had resided in Australia.  The husband was in a new relationship and, so that he could remarry, he had applied for a divorce in Australia.

4. His Honour found that following the parties’ arrival in Australia in 1999, the wife spent long periods in Costa Rica and she had travelled between Australia and Costa Rica at her leisure. 

5. Concerning the parties’ property, his Honour said there was no evidence the husband had property in Australia.  The wife had limited property in Costa Rica.  However, it was her contention, for so long as the parties’ marriage continued, the application of Costa Rican matrimonial law meant the husband would be entitled to half of any property she acquired in Costa Rica.

6. At paragraphs 18 and 19 his Honour discussed jurisdiction.  He correctly determined the Federal Magistrates Court had jurisdiction to determine the husband’s application for a divorce.  Concerning jurisdiction in Costa Rica, at par 19 his Honour determined: 

   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.

7. No challenge was made to these findings.

8. His Honour then considered the law which would be applied to the parties’ matrimonial affairs in Costa Rica. This process was not without difficulty. This is because rather than adopting the contemporary approach of appointing a single expert or taking the approach to proof of foreign law found in ss 174 and 175 of the Evidence Act 1995 (Cth), the parties relied on evidence from various attorneys from Costa Rica, including in the case of the wife, her own attorney. In circumstances where the attorneys had not prepared a joint statement of agreed and contentious matters, and in the absence of cross-examination, the task of resolving their conflict of opinion was, as his Honour said, difficult.

9. His Honour determined, in Costa Rica, a party may apply for orders in relation to property interests, parenting issues or divorce.  However, it was not entirely clear to him upon what basis the courts in Costa Rica would exercise jurisdiction with respect to property and divorce.  Concerning divorce, his Honour considered two of the grounds of divorce, namely legal separation for at least one year and factual separation for more than three years, appeared to be no fault grounds. 

10. His Honour then cited, with apparent approval, evidence given by the wife’s attorney from Costa Rica (Attorney Mora) to the effect: 

    …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.

11. Again, quoting from Attorney Mora, his Honour recorded that, based on the wife’s evidence which claimed domestic violence by the husband and threats by him to the child, it was her contention the Second Family Court would make a finding of fault against the husband which “in turn will affect the decision in relation to property and children.”   

12. Pursuant to ss 104(1) and 104(3)(b) of the Act his Honour correctly found that if a divorce was granted to the wife on her application in Costa Rica, it would be recognised in Australia.

13. Recognition of an Australian divorce order in Costa Rica was described by his Honour as less straightforward.  On this point, his Honour cited with approval evidence adduced by the husband from Attorney Estoban Soler.  His Honour accepted Attorney Soler’s evidence that recognition of foreign divorces in Costa Rica was regulated by Articles 705 – 708 of that country’s Civil Procedures Code.  Article 705, clause 4 is to the effect that for a foreign order, which would include a divorce order, to be validated in Costa Rica “there cannot exist in Costa Rica, a judicial process under discussion or a sentence handed down by a Court in Costa Rica”.  The effect of this was should the husband attempt registration of a divorce order in Costa Rica which had been obtained from his application under consideration on this matter, it would be rejected “inlimina”.  That is, on the grounds of pending litigation.  In other words, the evidence of the husband’s witness, Attorney Soler was the husband could not register in Costa Rica an Australian divorce order obtained from his application filed on 24 October 2007.   Thus, according to Attorney Soler a divorce order issued by the Federal Magistrates Court would have no effect on divorce proceedings in Costa Rica filed individually by either party. 

14. Having recorded the wife’s attorney did not take issue with this aspect of Attorney Soler’s evidence, his Honour determined that if he granted the husband’s application for divorce, the divorce would be valid in Australia but would not be recognised in Costa Rica.  This finding is not only consistent with the evidence given by the husband’s attorney, but also that given by the wife’s attorney at par 10 of his affidavit sworn 23 November 2008.  Importantly, before us, this finding was not the subject of challenge by the husband.  Curiously, this was a finding in relation to which the wife initially sought to adduce evidence in the appeal, to challenge and not bolster the correctness of the finding reached in the Court below.  No less curiously the husband opposed the admission of this evidence.  In the event, the parties agreed we would not receive further evidence in the appeal.

15. The next matter considered by his Honour was the materiality of the existence of divorce proceedings in Costa Rica.  His Honour commenced his discussion by reference to pars 35 and 36 from Henry.  Because these relate to ground 2 they are set out below:

    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]

16. Next, his Honour correctly determined that where the words “the same controversy” are used in a matrimonial proceeding, it is the marital relationship itself and not its constituent parts, for example divorce, property settlement or children’s issues, to which reference is made. 

17. His Honour found that there were proceedings in Costa Rica, which would deal with divorce, property settlement and parenting issues.  Australia, on the other hand, in the context of the husband’s application for a divorce order would “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”.  Consequently, his Honour concluded Costa Rica could provide more effectively for complete resolution of the matters involved in the parties’ controversy.

18. Next, his Honour referred to the temporal element of the wife having commenced proceedings first.  His Honour found that within days of the wife filing her divorce proceedings she informed the husband.  His Honour was satisfied, not only had the husband participated in those proceedings, he had invoked Costa Rican jurisdiction and sought, inter alia, an order for legal separation.  An order for legal separation was found by his Honour to be “either a divorce order or a pre-requisite to the granting of a divorce order”. 

19. His Honour turned next to consider the wife’s claim she would be prejudiced if the husband’s divorce was granted in Australia.  His Honour summarised the wife’s contention to the effect that the husband, by presentation of an application for divorce in Australia, intended to deprive her of the opportunity to raise issues of domestic violence, and other fault issues, in her application in Costa Rica with consequential detriment to her and advantage to him.  In the event the husband would be able to register an Australian divorce decree in Costa Rica, his Honour accepted the husband would become entitled to half of the wife’s property, including property acquired post separation.  His Honour accepted this would be to the wife’s significant disadvantage.  However, his Honour rejected the wife’s contention and restated his earlier finding that “it is unlikely that an Australian divorce decree would be afforded recognition”.

20. Next, his Honour stated his conclusion.  Because of its centrality to the appeal, it is appropriate this is set out in full.  His Honour said:

    36.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 [the wife] has no real connection with Australia (other than [the husband]), [the husband] 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 [the wife] 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 [the husband] 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.

21. After his Honour published his reasons, the parties were invited to make further submissions about whether the husband’s divorce application should be permanently stayed or dismissed.  His Honour ordered that the application be dismissed.

Summary of Argument

1. In accordance with r 22.22(1)(a) of the Family Law Rules 2004, counsel for the husband provided a brief summary of argument, which unfortunately did not comply with r 22.22(2). This rule requires that a summary of argument must set out a statement of the arguments for each ground of appeal, including points of law or fact, and the authorities relied on. In both his written and oral arguments counsel for the husband adopted a global approach, in the sense he did not identify to which of the grounds of appeal his arguments were addressed. The global approach is not one I would wish to see emulated.

2. By way of preamble, counsel for the husband said he was content to proceed upon the basis the husband could register in Costa Rica a divorce order obtained from his divorce application filed in Australia on 24 October 2009.  While counsel did not concede an Australian divorce order would, in the circumstances of this case, be recognised in Costa Rica, his point was whether it would be was irrelevant.  This was because an Australian divorce order would be a “no fault” divorce whereas divorce in Costa Rica was fault based.  In this context it was submitted, all that would result from an Australian divorce order were findings as to jurisdiction and that the marriage had irretrievably broken down.  Accordingly, res judicata would not apply, and thus there was no basis upon which his Honour could invoke the principles in Voth to dismiss the husband’s application. 

3. I do not propose to devote a significant amount of time to this hypothetical proposition.  Firstly, it fails to address the fundamental point that his Honour found the Australian divorce order would not be recognised in Costa Rica, which finding was open to his Honour.  Secondly, his Honour accepted that if an Australian divorce order were recognised in Costa Rica, the wife would be denied the opportunity to pursue her fault-based argument, which would be to her disadvantage in property settlement proceedings.   This conclusion is consistent with the evidence adduced from Attorney Soler about the impact of fault findings in property settlement and parenting cases.  Thirdly, given that divorce is concerned with the status of a person, recognition of a foreign divorce is far from irrelevant.  Particularly, where, as could be the situation here, the husband would be free to remarry in his place of residence while the wife would continue to be married to him in her place of residence.  While in some circumstances discussion of hypothetical facts can be illustrative, it can also lead to misstatements of principle.  For argument by analogy to be useful, the factual substratum should be relevantly connected to the case under consideration.  In this instance, the husband’s hypothetical premise that we could treat registration of an Australian divorce decree as effectively irrelevant is flawed.    

Discussion

1. In relation to ground 1 of appeal the focus of the husband’s challenge was whether his Honour failed to take into account a material consideration so as to commit an error of law; that consideration being the husband’s unchallenged evidence he wished to remarry.  The husband contended, that although his Honour referred to this matter when he set out the husband’s circumstances, this factor did not form part of his Honour’s analysis of the relevant considerations.  It was submitted, when the unchallenged facts established the husband was strongly connected with Australia, which was where the parties last cohabited, the fact he wished to remarry without having to wait for what he considered an unreasonably long time, there existed reasons for him to seek this legitimate personal advantage, namely timely divorce in Australia.  By failing to consider the husband’s desire to divorce so he could remarry as part of the factors his Honour considered when weighing the factors which demonstrated Australia was not a clearly inappropriate forum, the husband said his Honour erred.   

2. Counsel for the wife correctly pointed out the husband’s submissions did not identify how his Honour misdirected himself as to the evidence adduced on behalf of the wife.  In relation to the material consideration issue, the wife correctly pointed out his Honour recorded at par 8 of his reasons that the husband applied for a divorce in Australia so that he could marry the person with whom he was in a relationship.  The wife submitted there was no evidence why there was a particularly pressing need for the husband to marry, nor how or when this decision had been reached.  Furthermore, the wife contended it was erroneous for the husband to assert his desire to remarry was the sole reason for his Australian divorce application.  At least by implication, the wife asserted the husband was no less motivated by the advantage to him and correlating disadvantage to her in their property settlement in Costa Rica if the Australian divorce could be registered in Costa Rica. 

1. Notwithstanding these submissions, during oral submissions counsel for the wife appropriately conceded his Honour failed to consider the personal reasons or asserted legitimate personal advantage to the husband of being permitted to proceed with his Australian divorce application. 

2. His Honour did not find the husband was motivated by more than his desire to remarry.  In other words, the submission made by the wife to his Honour that the husband was motivated by, inter alia, the prospect he could disadvantage her in her proceedings in Costa Rica, was not accepted by his Honour. Secondly, his Honour found an Australian divorce, which issued in the circumstances of this case, was unable to be registered in Costa Rica.  As to this later point counsel for the wife agreed “..on the evidence this was the only determination available”.  It follows, that irrespective of the husband’s motivation, because an Australian divorce would not be recognised in Costa Rica where similar proceedings in that country were commenced beforehand, the wife’s claims in Costa Rica would not be prejudiced.  This is the effect of his Honour’s findings at par 35. 

3. In Henry the High Court stated the considerations there identified as relevant to a Voth stay of proceedings between spouses with respect to their marital relationship were not exhaustive.  Their Honours said:  “.. 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.” Per Dawson, Gaudron, McHugh and Gummow JJ at par 40.  This is a recurrent theme in forum cases. 

4. I agree with the husband his desire to remarry was a factor, which his Honour should have considered when deciding whether Australia was a clearly inappropriate forum.  This is particularly so when regard is had to the strength of the husband’s connection to Australia, which was where the parties last cohabited, the parties joint desire to divorce, the fact the Australian proceedings had reached the point where a divorce could be ordered and the evidence did not enable his Honour to find a divorce would be granted any time soon in Costa Rica.   However, this is not the end of the matter.

5. In De Winter v De Winter (1979) FLC 90-605 Gibbs J said at 78,092:

   There are many other authorities, from Young v. Thomas (1892) 2 Ch. 134, at p.137, to Australian Coal and Shale Employees’ Federation v. The Commonwealth (1953) 94 C.L.R. 621, at p.627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error.… The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.

6. Kirby J in CDJ v VAJ (1998) 197 CLR 172 explained the basis of appellate intervention by this court at 230-231 as follows:

   To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong.

7. The question which arises is whether by failing to consider this matter his Honour erred in an appellate sense.  Central to resolution of this issue is whether, had an Australian divorce order been granted in the circumstances of this case, it would be recognised in Costa Rica. The evidence on this issue pointed in the one direction, namely against recognition in Costa Rica.  Thus, on the husband’s case had his Honour had regard to his desire to remarry and determined Australia was not a clearly inappropriate forum, the result would be he would remarry in Australia while the wife would remain married to him in Costa Rica.  An outcome which would alter the parties’ marital status in only the local forum and not a relevant foreign forum would be productive of serious mischief and would be extremely strong grounds for the granting of a stay.  Although the submissions made by the husband did not address this outcome, it cannot be ignored.  This would be the inevitable outcome of the husband being able to secure an Australian divorce while there were proceeding “inlimina” in Costa Rica.  In Henry the majority pointed out that there may be cases where the chosen forum is so clearly inappropriate the important notion of a prima facie right to continue proceedings regularly invoked can have no bearing on the matter.  In a similar vein, although his Honour erred in the manner contended, the differential effect on the parties status of Costa Rica not affording recognition to the husband’s proposed Australian divorce means Australia is clearly inappropriate. Thus, I am not persuaded the mistake affected the final result.

8. There is no merit in ground 1. 

9. Ground 2 focused upon his Honour’s conclusion “prima facie it is vexatious and oppressive, in the strict sense of those terms for [the husband] 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”.  Counsel for the husband correctly identified that the relevant principles were those contained in Oceanic Sun Line Special Shipping Company Inc v Fay per Deane J at 247.  The argument in relation to this ground was to the effect that the only basis upon which the wife succeeded was a finding her divorce proceedings commenced first.  Although phrased slightly differently, the substance of the submission was that his Honour approached this matter on the basis that where there are foreign proceedings pending, and proceedings in relation to the same controversy are commenced in the local forum, the local proceedings must be stayed.  In Ferrier-Watson, BF v McElrath, DA (2000) FLC 93-022 Finn J, in the minority (not on this point) stated there is nothing in Henry, which would provide support for an automatic stay of the local proceedings.  With respect I agree.  Thus, had his Honour approached this issue in the manner suggested there would have been considerable force to this challenge. 

10. Counsel for the wife submitted his Honour’s determination was based on more than the wife filed first.  As to knowledge, counsel referred to the email notification the wife provided to the husband on 6 May 2007 which informed him that she had filed a divorce application in Costa Rica.  I agree this provided a proper foundation for his Honour’s finding that the husband was aware of the wife’s pending divorce application when he commenced divorce proceedings in Australia. Counsel highlighted his Honour’s satisfaction the proceedings in Costa Rica would comprehensively deal with divorce, property and parenting issues.  In Australia, however, where no comprehensive proceedings were on foot, the husband’s divorce decree resolved none of the matrimonial controversies, particularly in circumstances where the Australian divorce order was unlikely to be afforded recognition in Costa Rica. 

11. The balance of the wife’s submissions under ground 2 commenced with the preamble:  “If it is accepted that registration of the Australian divorce is a certainty” before going on to discuss the evidence and his Honour’s finding regarding the consequences of registration in Costa Rica of an Australian divorce order.  As I have earlier said, his Honour found against the wife’s proposition concerning recognition in Costa Rica of an Australian divorce order where there existed pending proceedings in that country.  The wife did not file a notice of contention in the appeal and cannot now be heard to complain. 

12. As the majority in Henry made clear when proceedings have commenced in a foreign forum and subsequently proceedings in relation to the same controversy are commenced in the local forum, prima facie the local proceedings are vexatious and oppressive in the Voth meaning of those words. In addition, I do not agree his Honour dismissed the husband’s divorce application solely upon the basis that the wife commenced her divorce proceedings first.  It is clear from par 36 of his Honour’s reasons he had regard to a number of relevant factors, in relation to which the fact the wife filed first was but one. 

13. I find no merit in ground 2.

14. In relation to ground 3, counsel for the husband proceeded on the basis that the proceedings in Costa Rica would comprehensively address divorce, property and parenting issues.  Counsel for the husband submitted, if the husband proceeded with his Australian divorce application he would, if it were granted, merely secure a “no fault” divorce.  All that would result from such a decree, it was submitted, was a finding the parties’ marriage had irretrievably broken down.  Thus, even if the Australian divorce order were able to be registered in Costa Rica, it would only be evidence of a finding the marriage had broken down irretrievably.  Consequently, there would be no prejudice to the wife.  This is because there was no evidence that if the husband secured an Australian no fault divorce that the wife was precluded from proceeding with her fault based divorce application in Costa Rica. 

15. In response, counsel for the wife restated the wife’s contention that if an Australian divorce was able to be registered in Costa Rica, she, as his Honour found, would suffer significant disadvantage in her proceedings in Costa Rica.  As I have earlier stated, his Honour found that because there were proceedings which had commenced first in Costa Rica, an Australian divorce order would not be recognised. 

16. The focus of the husband’s submission appeared to be upon the preliminary finding required before a divorce order in Costa Rica may issue.  In my view, it is the complete effect of the application to which attention should be drawn.  That is, an Australian divorce order would change the parties’ status in Australia from married spouses to being divorced.   Because the Australian divorce order would not be recognised in Costa Rica, the wife would remain married to the husband while he was, as he said he would, in all likelihood simultaneously to be married to his Australian wife.  This situation would continue until the wife’s application for divorce in Costa Rica was granted.  Such an outcome would be productive of serious mischief.  Even if the husband chose not to remarry, that he would be divorced and the wife remain married to him until her divorce application was granted is equally seriously mischievous. This was compelling evidence of injustice to the wife in the Voth sense. 

17. In these circumstances, I do not agree with the assertion his Honour should have found that there was no real likelihood the wife would suffer any real prejudice if a divorce order was made by an Australian court.  Indeed, such a finding was not open to his Honour. 

18. I find no merit in ground 3.

Orders and costs

1. I would dismiss the appeal.

2. At the conclusion of the hearing, we took submissions concerning costs of the appeal.  The husband agreed in the event he was unsuccessful he should pay the wife’s costs.  An order should be made to that effect.

I certify that the preceding two hundred and seventy-five (275) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 28 October 2010.

Associate:     

Date:              28 October 2010