Nevill and Nevill
[2015] FamCA 876
•20 October 2015
FAMILY COURT OF AUSTRALIA
| NEVILL & NEVILL | [2015] FamCA 876 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay on forum grounds under the Trans-Tasman Proceedings Act 2010 (Cth) – “More appropriate forum” test is that which is to be applied, not the common law “clearly inappropriate forum” test – Husband has filed proceedings in New Zealand and the wife has unconditionally acceded to the jurisdiction – No issue between the parties that both Australian and New Zealand courts have jurisdiction to determine the property issues between the parties consequent to the breakdown of their marriage – Application of factors identified in s 19(2) of the Trans-Tasman Proceedings Act 2010 (Cth) – Marriage subsisted mainly in New Zealand – Each party has New Zealand based discretionary trusts with the applicable law of each trust being that of New Zealand – Assets substantially situated in New Zealand – Asserted juridical advantage of the proceedings being heard and determined in Australia considered – Determined that New Zealand is the more appropriate forum for determination of the dispute – Australian proceedings permanently stayed. |
| Family Law Act 1975 (Cth) Property (Relationships) Act 1976 (NZ) Trans-Tasman Proceedings Act 2010 (Cth) Trusts (Hague Convention) Act 1991 (Cth) |
| BHP Billiton Ltd v Schultz (2004) 221 CLR 400 |
| APPLICANT: | Ms Nevill |
| RESPONDENT: | Mr Nevill |
| FILE NUMBER: | BRC | 2103 | of | 2015 |
| DATE DELIVERED: | 20 October 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 15 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Page of Queen's Counsel |
| SOLICITOR FOR THE APPLICANT: | Damien Greer Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr Sayers of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Jones McCarthy Lawyers |
Orders
IT IS ORDERED THAT:
These proceedings BRC2103/2015 be permanently stayed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nevill & Nevill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC2103/2015
| Ms Nevill |
Applicant
And
| Mr Nevill |
Respondent
REASONS FOR JUDGMENT
The husband and wife, New Zealand nationals, met and commenced a relationship in New Zealand in April 2002 where they commenced cohabitation on 25 January 2003 and married in 2005. The only child of the relationship was born in New Zealand in 2006.
The parties’ final separation occurred in June 2013 in Australia some six months after the family had relocated to Australia from New Zealand.
As at the commencement of cohabitation the wife was in full time employment in New Zealand and had established and controlled (as now) the B Trust (“the wife’s trust”). It is not in issue that the proper law of the wife’s trust is the law of New Zealand. The assets of the wife’s trust include the parties’ former matrimonial home situated in City F, New Zealand with an estimated worth of NZD $1,200,000.
In 1996 the husband established a business partnership in New Zealand with another via the company C Limited, a New Zealand corporation. On 22 March 2001 the husband established and controlled, as principal and settlor, the Mr Nevill Family Trust (“the husband’s trust”) and the husband’s trust then held the husband’s interest in the C business. Following business mergers in 2005 the company C Group Holdings Limited (“CGH”) was incorporated in New Zealand on 17 October 2007 and thereafter assumed ownership of the husband’s business interests.
The husband’s trust holds 25.73 per cent of the shares in CGH worth (on the wife’s stated share value) NZD $12,000,000. The husband personally holds 0.74 per cent of the shares in CGH worth (again adopting the wife’s stated share value) NZD $231,500. The wife’s trust holds shares in CGH worth, she says, NZD $1,181,799. CGH is a New Zealand based corporation with the seat of its administration based there albeit that the company trades in other places, including in Australia.
As with the wife’s trust, it is not in issue that the proper law of the husband’s trust is the law of New Zealand. On the hearing of this application counsel for each party proceeded on the understanding that the proper law of each of the wife’s trust and of the husband’s trust was the law of New Zealand. The Court drew the attention of counsel to the existence of the Trusts (Hague Convention) Act 1991 (Cth) and that the parties’ stated positions appeared consistent with that statute. Neither counsel submitted otherwise.
In January 2013 the parties and the child of the marriage commenced to reside in Australia. The wife contends, and the husband disputes, that this was to be a permanent migration of the family. In any event, the parties and their child have continued living in Australia since then.
Within six months of coming to Australia to live, in January 2013, the parties finally separated in June 2013. They have yet to divorce.
On 11 March 2015 the wife commenced these property settlement proceedings pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the FLA”) by the filing of an Initiating Application in the Federal Circuit Court.
By his Response filed in these proceedings on 31 March 2015 the husband sought orders, inter alia, that these proceedings be permanently stayed.
On 11 May 2015 the husband commenced proceedings against the wife in the Family Court of New Zealand pursuant to the Property (Relationships) Act 1976 (NZ) and seeks to have those proceedings transferred to the High Court in New Zealand. On 8 September 2015 the husband also commenced proceedings in the High Court of New Zealand seeking, inter alia, declarations concerning the husband’s trust as to, for example, the rights of appointment under the trust instrument governing the husband’s trust. The husband seeks the stay of these proceedings in favour of the New Zealand proceedings he has commenced.
Is the High Court of New Zealand the “more appropriate Court” within the meaning of the Trans-Tasman Proceedings Act2010 (Cth)?
The issue to be determined on this application is whether this Court ought decline jurisdiction and make an order staying the proceedings in this Court on forum grounds in favour of the Family Court or High Court in New Zealand determining the property issues between the parties consequent upon the breakdown of their marriage.
That issue is to be determined by reference to s 19 of the Trans-Tasman Proceedings Act 2010 (Cth) (“the Act”). Both parties acknowledge that a New Zealand court has jurisdiction to determine the matters in issue between them (s 19(1)). The question is whether the New Zealand court “is the more appropriate court to determine those matters” within the meaning of s 19(2) of the Act.
Section 17(1) of the Act provides:
17 Application to stay Australian proceeding on forum grounds
(1) A defendant in a civil proceeding in an Australian court may apply to the court for an order staying the proceeding on the grounds that a New Zealand court is the more appropriate court to determine the matters in issue.
Section 17(2) prescribes a time limit for the bringing of that application.
Section 19 relevantly provides:
19 Order of stay of proceeding
(1)On application under section 17, the Australian court may, by order, stay the proceeding if it is satisfied that a New Zealand court:
(a)has jurisdiction to determine the matters in issue between the parties to the proceeding; and
(b) is the more appropriate court to determine those matters.
(2) In determining whether a New Zealand court is the more appropriate court to determine those matters, the Australian court must take into account the following matters:
(a)the places of residence of the parties or, if a party is not an individual, its principal place of business;
(b)the places of residence of the witnesses likely to be called in the proceeding;
(c) the place where the subject matter of the proceeding is situated;
(d) any agreement between the parties about the court or place in which those matters should be determined or the proceeding should be commenced (other than an exclusive choice of court agreement to which subsection 20(1) applies);
(e) the law that it would be most appropriate to apply in the proceeding;
(f) whether a related or similar proceeding has been commenced against the defendant or another person in a court in New Zealand;
(g) the financial circumstances of the parties, so far as the Australian court is aware of them;
(h) any matter that is prescribed by the regulations;
(i) any other matter that the Australian court considers relevant;
and must not take into account the fact that the proceeding was commenced in Australia.
(3) An order under subsection (1) may be made subject to any conditions the Australian court considers are appropriate in order to facilitate, without delay or undue expense, the determination of the matters in issue between the parties to the proceeding.
Section 21(1) of the Act relevantly provides:
21 How this Part affects powers of the court to stay proceeding
(1) An Australian court cannot stay a civil proceeding on forum grounds connected with New Zealand otherwise than in accordance with this Part.
Sections 17, 19 and 21(1) of the Act make clear that the “more appropriate” test exclusively applies in a forum dispute, as here, between Australia and New Zealand. That is, the common law “clearly inappropriate forum” test usually applicable under Australian law[1] to a stay application on forum grounds has no application here.
[1] Deriving from Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; Henry v Henry (1996) 185 CLR 571; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; Puttick v Tenon Ltd (2008) 238 CLR 265 and Navarro v Jurado (2010) 44 Fam LR 310.
On the hearing of this application Mr Page QC, counsel for the wife, frankly acknowledged on his own behalf and on behalf of Dr Sayers, counsel for the husband, that initially when these issues were first raised in the Federal Circuit Court prior to the transfer of these proceedings to this Court, both counsel had misapprehended the applicable law. This was by way of explanation for the parties’ previous respective written submissions filed in the Federal Circuit Court, which came before this Court on this application, directing themselves to the “clearly inappropriate forum” test. This also explains why the respective written submissions are not directed specifically to each of the mandatory considerations set out in s 19(2)(b) of the Act. On the hearing it was not in issue that it is the Act which applies to determination of the issue under consideration.
Counsel for the wife also submitted in the course of the hearing (in comparison to that advanced in earlier written submissions, where relevant) that:
a)The husband’s Response filed on 31 March 2015 to the wife’s Initiating Application constituted an application within the meaning of s 17(1) of the Act and that Response was filed within the time period prescribed by s 17(2). Thus the wife did not pursue any earlier contention to the effect that the application challenging forum was made out of time;
b)The wife had filed an unconditional defence in the proceedings instituted by the husband in New Zealand pursuant to the Property (Relationships) Act 1976 (NZ) and had thus acceded to the jurisdiction of the New Zealand court. That is, the wife did not challenge the husband’s standing to bring such proceedings or the jurisdiction of the New Zealand court to determine the property issues between the parties consequent upon the breakdown of their marriage;
c)The wife no longer persisted in the interim applications she had made for orders for, inter alia, the husband to be replaced by the wife as “settlor and trustee” of the husband’s trust; and for the husband to authorise and direct the trustees of the husband’s trust to act in particular ways specified in relation to the husband’s trust as identified in the interim orders that had initially been sought.
Neither counsel, on the hearing of this application, referred the Court to any authority as to the operation and application of the relevant provisions of the Act.
In Re Featherston Resources Ltd (2014) 288 FLR 265 (“Re Featherston”) Brereton J considered the relevant provisions of the Act in the context of the Corporations Act 2001 (Cth) and an application for leave to bring proceedings in the name of a company subject to a Deed of Company Arrangement.
Brereton J noted (at [51]) of his Honour’s judgment that whilst the power conferred by s 17 is discretionary “…it would be an exceptional case, if there is one at all, in which being satisfied that the New Zealand court had jurisdiction and was the more appropriate one, the Court would not stay the Australian proceedings.” I respectfully agree.
His Honour recorded the following with respect to the “more appropriate forum” test at [53] and [54] of the judgment:
53As to the second limb, the "more appropriate forum" test mirrors the test provided in respect of domestic proceedings by Service and Execution of Process Act 1992 (Cth), s 20 and Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 5, in place of the "clearly inappropriate forum" that applies at common law. The test directs attention to the more appropriate, not the more convenient, court. While convenience is undoubtedly an importance [sic] consideration, it is not determinative. Notions of the "natural forum" can inform what is the "more appropriate forum", as I observed, in the context of the Cross-Vesting Act, in BioAg Pty Ltd v Hickey [2007] NSWSC 296 (at [7]):
In identifying the "more appropriate forum", relevant considerations including the cost and efficiency of proceedings in the respective jurisdictions, and the connecting factors referred to by Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 478 – including matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction [BHP v Schultz, 422 [18]]. Sometimes, consideration of relevant connecting factors will identify a "natural forum". Ordinarily, the residence of the defendant is more significant than that of the plaintiff to establish jurisdiction and this may count in identifying the natural forum [BHP v Schultz, 423 [19]; British American Tobacco Australia Ltdv Gordon & Anor [2007] NSWSC 230, [44]].
54In James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357, Spigelman CJ said, also in the context of the Cross-Vesting Act (at [7]):
To determine which court is, in the interests of justice, the appropriate court, it is necessary to inquire, in the case of a tort, as to what is the place of the tort. Indeed, in the context of administering the co-operative national scheme in the Jurisdiction of Courts (Cross-Vesting) Act, where the place of the tort and the residence of the parties coincide, this will generally be determinative of the issue of "appropriate court", although other factors may need to be assessed in the process of determining where the interests of justice lie.
(original emphasis)
I respectfully adopt the observations made by his Honour Brereton J.
The mandatory considerations in s 19(2) will now be considered in that context.
(a) The places of residence of the parties or, if a party is not an individual, its principal place of residence
As already noted, both individual parties to the current proceedings reside in Australia and have so done since January 2013.
That noted, predominately all of the assets of the parties or either of them, including the former matrimonial home, are located in New Zealand. The trustees of each of the wife’s trust and of the husband’s trust are New Zealand based, including New Zealand based corporations. Relevantly the seat of administration of the husband’s business interests via CGH and the husband’s trust is in New Zealand.
Whilst neither party’s trust or the trustees are currently joined as a party to these proceedings, and it may well be that proceedings under s 79 of the FLA can be heard and determined without any such joinder, given that the Court exercises jurisdiction in personam; the interim relief that was sought by the wife (albeit not ultimately pursued by her on this application) and the wife’s affidavit evidence highlights at least some prospect or potential need for joinder of the trustees of the husband’s trust to these proceedings. At the very least, in terms of enforcement, that may be so in circumstances where the final relief claimed by the wife is for payment of a lump sum in an amount which, on the evidence, the husband could only pay from sale by the trustees of the husband’s trust of assets held by the husband’s trust and distributions to the husband as a beneficiary.
Counsel for the wife, in the course of argument (prior to obtaining instructions during the hearing from the wife not to pursue the interim relief identified in her application) highlighted that the New Zealand based trustees of the husband’s trust did not regard themselves as being bound in any respect by any undertaking the husband had given or might give as to the husband’s trust; and that the trustees had flagged their intention to administer the husband’s trust in accordance with their duties and discretion as trustees, irrespective of any such undertaking.
As counsel for the husband emphasised, that the wife’s interim relief was not pursued on this application does not eliminate the prospect that similar relief will not be pursued in future. Further, it would appear that if these Australian proceedings continue there is at least a potential for the need to arise at some point, even if by means of enforcement, to join the trustees of the husband’s trust for effective relief to be obtained.
The broad proposition agitated by counsel for the wife is to the effect that under Australian family law the assets of a discretionary trust may be treated as the assets of a party to the marriage where control exists. Whilst that may be so, this does not obviate, in every case, the need to join the trustees to the proceedings if orders directed to trust assets are to be made either in the substantive proceedings or by way of enforcement.
In BP and KS (2003) FLC 93-157 Warnick J noted, after an extensive review of authority, the following ( at [78] to [82]) as follows:
78.There are a number of Family Court cases in which findings were made that the capital of discretionary trusts was either “property” of a person who could control the trust or the “defacto property” of such a person. While such findings might impliedly leave the court at liberty to deal with that property as the court sees fit, this is not necessarily so.
79.The significance of such a finding may initially be that the assets of the trust can properly be included in a “pool” of assets for division between the parties. To do so is a notional step in a process of reasoning, as distinct from the executive nature of a court order dealing with trust assets.
80.Even when such a finding underpins a court order, there is a difference between firstly, an order requiring a payment from, for example, husband to wife, (albeit the only source of funds is the capital of a discretionary trust of which the husband is trustee or appointor or otherwise in control), leaving it to the husband to act, presumably according to law, and secondly an order requiring a trustee to pay funds from a trust to satisfy an order for property settlement.
81.As seen, Ellis J in Davidson (No 2), Maxwell J in Alcaine and Santow J in Andco Nominees were circumspect in the “reach” of the orders they made, or were prepared to countenance.
82.While the distinction between orders designed to facilitate satisfaction of other orders for property settlement by distribution from a trust and orders that direct that result may seem fine, it is nonetheless real.
(original emphasis)
Thus whilst it can be observed of these proceedings that both parties to them currently, the husband and the wife, are resident in Australia, the possibility or potential need to join the New Zealand based trustees of the husband’s trust, for effective interim or final relief or enforcement to be given practical effect, cannot be excluded.
(b) The places of residence of the witnesses likely to be called in the proceeding
Obviously each of the husband and the wife, both currently resident in Australia, are the most obvious witnesses in their respective cases.
Counsel for the husband emphasised the potential need for New Zealand based trustees of the respective trusts, in particular the trustees of the husband’s trust, to provide evidence in the proceedings.
It was acknowledged on both sides of the record that as the assets of the parties, or either of them, are predominately located in New Zealand, any expert valuation evidence required would likely come from experts based in New Zealand. As one simple example, the wife’s trust owns the former matrimonial home in New Zealand and CGH has the seat of its business operations and administration in New Zealand.
Counsel for the wife emphasised that expert evidence might readily be accommodated by way of video or telephone evidence, as commonly occurs.
In summary, there is at least some prospect of necessary witnesses, based in New Zealand, being required for the purpose of the proceedings. In other words, other than the husband and the wife, it would seem that any relevant witnesses will be New Zealand based.
(c) The place where the subject matter of the proceeding is situated
Obviously enough in circumstances where the assets of the parties or either of them are essentially located in New Zealand and the focus of the proceedings is upon the parties’ respective rights to property, the subject matter of the proceeding is situated essentially in New Zealand.
(d) Any agreement between the parties
There is no suggestion of any agreement between the parties about the court or place where proceedings consequent upon the breakdown of their marriage should be determined.
(e) The law that it would be most appropriate to apply in the proceeding
On one interpretation of this subsection, perhaps an overly narrow one, all that is required by this subsection is to compare the extent to which an Australian court, in the Australian proceeding, would consider it appropriate to apply Australian law, or foreign law, in the proceeding. That is, depending upon the nature of the cause of action under consideration and, for example, where the events giving rise to that cause of action took place, the extent to which it may be appropriate to apply foreign law, rather than the law of the forum, to the proceedings if they proceed in the local forum. For example, in the case considered by Brereton J referred to, whether the right of a shareholder to bring a derivative suit is procedural and thus governed by the law of the forum or, in an international context, the applicable law is that of the place of incorporation (see [60] in Re Featherston).
Such a narrow interpretation of this subsection would have, it would seem, little operation in the context of a case such as this. A court having jurisdiction under the FLA and exercising that jurisdiction applies Australian law to the determination of the dispute and may adjust the property rights of the parties regardless of any rights acquired or vested in them under foreign law.[2]
[2]Of course this is subject to the qualification that the Court must take care not to make an order in relation to assets situated abroad that might operate in direct conflict with the laws of that country; and the Court does not or should not make orders requiring a person to do something illegal in the place in which it is to be done.[3]
[3] See, for example, Michael Wilson & Partners Ltd v Nicholls (2008) 74 NSWLR 218.
On a wider interpretation of this subsection, the focus is upon the law that it would be most appropriate to apply to the particular dispute in issue having regard to the circumstances in which that dispute arises. That is, having regard to connecting factors with each country, whether it would be more appropriate for the law of New Zealand than that of Australia to apply to determination of issues consequent upon the breakdown of the marriage.
It would seem to me that the wider interpretation commends itself having regard to the express reference in s 17(1) of the Act referring to the more appropriate court to determine the matters in issue (as is repeated in s 19(1) of the Act itself). However, even if that is not so, subsection (i) of s 19(2) of the Act requires the Court to take into account any other matter that the Australian court considers relevant. It would be consistent with authority where the “more appropriate” test applies (including Re Featherston) to have regard to the appropriateness of the law to be applied having regard to connecting factors. In this context, the connecting factors between the marriage and each country, in determining the appropriate law to be applied.
Both parties are New Zealand nationals. They married in New Zealand under the law of that country. Their relevant relationship spanned the period from their cohabitation which commenced in January 2003 until their final separation in June 2013, a period of about 10.5 years. Six months only of that overall marriage period occurred in Australia.
Obviously, the breakdown of the marriage occurred in Australia and the
post-separation period has occurred with each party being resident in Australia.
Each party had established a New Zealand based discretionary trust at the time their cohabitation commenced. Each of the parties, and both of them, furthered their property interests throughout their relationship and marriage, and ultimately the property of the parties or either of them is essentially New Zealand based.
The parties’ separation occurred in Australia and in the post-separation period both parties have lived in Australia albeit that in the case of the husband, in particular, his business interests based in New Zealand have required him to regularly attend meetings and the like in New Zealand.
Counsel for the wife sought to emphasise the juridical advantage to the wife of her claim to property settlement being determined in these proceedings, as distinct from that determination being made in the husband’s proceedings in New Zealand.
That juridical advantage contended for seemed to be based upon two related aspects advanced on behalf of the wife. First, and perhaps summarising the position somewhat crudely, under New Zealand law there is the question of “relationship property” to which each party has, prima facie, an equal entitlement. In circumstances where the husband’s trust was established in advance of the relationship (as likewise was his business partnership earlier referred to), I infer from the submissions on both sides of the record that in proceedings in New Zealand there would, or may be, issues as to the extent to which the husband’s trust (which overwhelmingly holds the greatest assets in value) forms part of the parties’ “relationship property” under the relevant New Zealand legislation.
Second, counsel for the wife submitted that New Zealand’s family law is currently “in disarray” in terms of conflicted approaches as to how discretionary trusts and the interests in discretionary trusts are considered. That was said to be so as compared with what was submitted to be the now clear and established approach under Australian family law following, in particular, the High Court’s determination in Kennon v Spry (2008) 238 CLR 366.
Reference was made to the New Zealand cases of Thompson v Thompson [2015] NZSC 26 and Clayton v Clayton (2015) FRNZ 1 (“Clayton”) (and the fact that an appeal in the case of Clayton has proceeded in New Zealand but is yet to be determined) for the proposition by counsel for the wife that the law in New Zealand is conflicted or unclear or “in disarray”.
I am by no means satisfied that New Zealand’s law on this topic is unclear, much less meeting the description of being in disarray as counsel contended for. However, in any event, I am not persuaded that any perceived juridical advantage to one party in one forum (even if one exists) renders the law of that forum “most appropriate to apply in the proceeding” within the meaning of s 19(2)(e), or is even relevant to that consideration.
In each of Regie Nationale des Usines Renaut SA v Zhang (2002) 210 CLR 491 and BHP Billiton Ltd v Schultz (2004) 221 CLR 400 references were made by Callinan J to one party’s advantage being the other party’s disadvantage, and vice-a-versa, in this context.
Having regard to the scheme of this legislation generally, it does not seem to me that there is any merit in the contention that an Australian court is more appropriate than a New Zealand court because the party invoking the jurisdiction of the Australian court has some juridical advantage, procedural or substantive, by so doing. That necessarily means disadvantage to the other party.
In my judgment the focus of the inquiry directed by the subsection, in the context of proceedings consequent upon marriage breakdown, depends upon the nature of the matters in issue as a starting point and, by reason of their nature, the connecting factors between those issues and Australia and New Zealand respectively.
As a starting point it ought be observed that the need to treat issues between husband and wife arising out of the matrimonial relationship and its breakdown as a single controversy, is a principle of central importance.[4]
[4] See Henry v Henry (1996) 185 CLR 571 and Dobson and Van Londen (2005) FLC 93-225.
Thus in a case where, consequent upon marriage breakdown, there are parenting issues; or child support issues; or spousal maintenance issues joined in the proceedings instituted in Australia (which also may include property settlement proceedings) where the parties and the child of the marriage are living, the above principle may assume determinative significance. That is, that principle may render the conclusion that irrespective of the jurisdiction in which the parties lived for the greater part of their married life; and irrespective of the location of their assets; the proper law to apply is Australian law given the imperative of there being some determination of urgent or pressing parenting or maintenance issues as part of the single controversy.
However, in this case no issues are raised other than property settlement in the context of the parties having finally separated in June 2013 and these proceedings being instituted in May 2015. That is, over the period that has elapsed between the time of the parties’ final separation in June 2013, they have apparently achieved solutions with respect to other potential conflicts but, happily, no such issues are agitated in these proceedings.
In the context of only property issues being in dispute in the proceedings the facts which loom large in my judgment, are:
(i)The parties are both New Zealand nationals and they lived for the greater part of their married life in New Zealand, having commenced cohabitation there in January 2003 and marrying there in January 2005. Conversely, the marriage relationship (prior to final separation) only subsisted for some six months after the parties came to Australia in January 2013;
(ii)The parties accumulated their existing property or the property interests of either of them predominately whilst they pursued their married life together in New Zealand;
(iii)The property of the parties or either of them is substantially situated in New Zealand. There are obviously substantial property interests involved;
(iv)The wife’s trust, which predominately owns or controls the vast majority of what may be conveniently described as the wife’s assets (including the real property that was the parties’ former matrimonial home in City F) is a New Zealand trust with a corporate trustee which is New Zealand based;
(v)The husband’s trust, which overwhelmingly in terms of value owns or controls the vast majority of property interests which are the focus of these proceedings, is a New Zealand trust with New Zealand trustees including both an individual resident in New Zealand and a corporate trustee;
(vi)Neither party has acquired any asset of any significance in Australia beyond personal items;
(vii)All, or predominately all, events referred to by either party in their respective evidence to date (accepting that to be preliminary) as to the acquisition or improvement of property or property interests (and historical real property transactions during the course of the marriage) occurred in New Zealand, and some of these are seemingly in dispute.
In my judgment, overwhelmingly, the connecting factors in this case tend in favour of the conclusion that the law of New Zealand would be the most appropriate law to apply to the determination of property issues consequent upon the breakdown of the parties’ marriage.
(f)Whether a related or similar proceeding has been commenced against the defendant or another person in a court in New Zealand
Reference has already been made to the proceedings instituted by the husband in New Zealand and the feature that the wife has acceded to the jurisdiction in New Zealand, given her unconditional defence filed in the proceedings the husband instituted pursuant to the Property (Relationships) Act 1976 (NZ).
The husband has also, as already noted, instituted proceedings in New Zealand seeking declaratory relief concerning the husband’s trust under the law of New Zealand, the proper law of that trust.
(g)The financial circumstances of the parties, so far as the Australian court is aware of them
Each party has filed a Financial Statement and affidavits setting out the substantial property interests each of them hold.
Whilst counsel for the wife faintly argued the proposition that the wife’s financial position was somehow constrained in relation to pursuing proceedings in New Zealand, as opposed to those she has instituted in Australia, there does not seem to be support for that proposition when regard is had to the financial standing and resources of the wife as set out in her material.
On the wife’s evidence she owns or controls (including via the wife’s trust) the following:
·Former matrimonial home at E Street, City F, NZ (owned by the wife’s trust) – NZD $1,2000,000;
·The wife’s trust’s bank account – NZD $351,000;
·716,242 shares in CGH owned by the wife’s trust, estimated by the wife to have a value of $1.65 per share – NZD $1,181,799;
·The wife’s personal bank account – NZD $45,000;
·The wife’s personal bank account including proceeds of sale from the property at I Street, J Town, NZ (December 2013) – NZD $242,000.
In summary, both parties would appear to have substantial financial means available to them to pursue proceedings in either jurisdiction.
Neither party advanced any evidence directed to any cost comparisons between each forum or as to any matters of procedure or as to delays in securing a final hearing.
(h)Any matter that is prescribed by the regulations
It would not appear that there has been any such prescription.
Any other matter that the Australian court considers relevant
Apart from what has already been addressed in relation to this factor, depending on the interpretation given to subparagraph (e) of s 19(2) of the Act, there is no evidence that matters of convenience or delay or expense (none of which were advanced on the hearing or in the evidence) have any role to play in considering the outcome of this application beyond those specifically referred to.
Conclusion
The subject matter of these proceedings is property overwhelmingly situated in New Zealand.
There are potential aspects relating to the trust law of New Zealand, in particular as regards the husband’s trust and his pursuit of proceedings for the declaratory relief in relation to the husband’s trust that potentially have a connection with property settlement proceedings.
The parties’ marriage subsisted for most of its duration in New Zealand and overwhelmingly in New Zealand as compared with Australia. In my judgment the nature and subject matter of the issues in dispute between the parties and the inter-relationship between those issues and New Zealand, render the Family Court in New Zealand (or the High Court if the proceedings are transferred there) the more appropriate court within the meaning of the Act.
The discretion under s 17(1) of the Act thus enlivened, there is no reason not to conclude, in circumstances where a New Zealand court has jurisdiction and appears to be the more appropriate court to determine the matters in issue between the parties, that these proceedings ought be stayed.
For these reasons an order will be made staying these proceedings.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 October 2015.
Associate:
Date: 20 October 2015
See, for example, In the Marriage of Hannema (1981) 7 Fam LR 542; In the Marriage of Cain (1987) FLC
91-808; and In the Marriage of Gilmore (1993) FLC 92-353.
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