OBANNON & SCARFFE
[2021] FamCAFC 33
FAMILY COURT OF AUSTRALIA
| OBANNON & SCARFFE | [2021] FamCAFC 33 |
| FAMILY LAW – APPEAL – ANTI-SUIT INJUNCTION – Procedural fairness – Where the primary judge restrained the appellant from continuing proceedings in Singapore in their totality – Where the respondent only sought that the appellant be restrained from continuing the property proceedings – Where restraint of the totality of the proceedings in Singapore was not raised with the parties and no submissions were made to that effect – Appeal allowed – Costs certificates granted. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Whether the dismissal of the respondent’s stay application in Singapore had a preclusionary effect upon advancing a claim under s 79 of the Family Law Act 1975 (Cth) – Consideration of Clayton v Bant (2020) 385 ALR 41– Res judicata – Where the statutory right to seek orders under s 79 cannot “merge” in any judicial orders other than final orders – Where the court in Singapore did not determine any substantive rights to property of the parties – Estoppel – Where any forum issue before the court in Singapore was not the same forum issue advanced in the Australian proceedings – Where the respondent was not estopped by the determination in Singapore from advancing his application for an anti-suit injunction – Where there can be no issue estoppel in relation to a foreign court’s decision that it has jurisdiction. FAMILY LAW – APPEAL – EVIDENCE – Whether the primary judge had an independent duty to exclude any irrelevant or inadmissible evidence – Where the objection to the expert evidence was vague and imprecise – Where no right of reply to the evidence was sought, nor was there any application before the primary judge to cross-examine the witness – Where the primary judge was not under a separate duty to determine the admissibility of the expert evidence absent any objection being raised. FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the appellant seeks to adduce two provisions of the Women’s Charter (Singapore, cap 353, 2009 rev ed) – Where expert evidence relied upon by the respondent before the primary judge was incomplete by omission of the full terms of the relevant sections – Where the subject sections are relevantly considered in association with some of the challenges on appeal – Application granted. |
| Evidence Act 1995 (Cth) ss 135, 174 Family Law Act 1975 (Cth) Pt VIII, ss 78, 79, 117 Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 Family Law Rules 2004 (Cth) Div 15.5.2, r 15.52 Women’s Charter (Singapore, cap 353, 2009 rev ed) ss 112, 114 |
| Bant & Clayton (No 2) (2019) FLC 93-925; [2019] FamCAFC 200 Bevan and Bevan (1995) FLC 92-600; [1993] FamCA 95 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53; [1985] HCA 61 Caddy and Miller (1986) FLC 91-720; [1986] FamCA 36 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 Central Petroleum Ltd v Geoscience Resource Recovery LLC [2018] 2 Qd R 371; [2017] QSC 223 City Elevator Services Pty Ltd v Burrows [2004] NSWCA 26 Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10 Clayton v Bant (2020) 385 ALR 41; [2020] HCA 44 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 De Winter and De Winter (1979) FLC 90-605 El Rashidy & El Rashidy and Anor (2020) FLC 93-944; [2020] FamCAFC 40 Federal Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149; [2011] FCAFC 74 Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gilmore and Gilmore (1993) FLC 92-353; [1993] FamCA 3 Harris v Harris [1947] VLR 44 Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 Jackson v Goldsmith (1950) 81 CLR 446; [1950] HCA 22 Jet Holdings Inc v Patel [1990] 1 QB 335 Kemeny v Kemeny (1998) FLC 92-806; [1998] FamCA 34 Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 Navarro v Jurado (2010) 44 FamLR 310; [2010] FamCAFC 210 Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54 Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32 Panayi v Deputy Commissioner of Taxation (2017) 319 FLR 228; [2017] NSWCA 93 Pascarl v Oxley (2013) 49 FamLR 364; [2013] FamCAFC 47 Pierson & Romilly (2020) FLC 93-959; [2020] FamCAFC 91 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 R v Lewis [2003] NSWCCA 180 R v Slack (2003) 139 A Crim R 314; [2003] NSWCCA 93 Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348 Rice & Rice [2020] FamCAFC 174 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Sargent & Selwyn [2020] FamCAFC 110 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588; [1999] HCA 3 Su v Chang (1999) FLC 92-859; [1999] FamCA 1203 Tahiri v Minister for Immigration and Citizenship (2012) 293 ALR 526; [2012] HCA 61 Telesto Investments Ltd v UBS AG (2013) 94 ASCR 29; [2013] NSWSC 503 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Trebiano & Trebiano [2019] FamCAFC 16 Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 WC v The Queen [2015] NSWCCA 52 |
| APPELLANT: | Ms Obannon |
| RESPONDENT: | Mr Scarffe |
| FILE NUMBER: | MLC | 2940 | of | 2019 |
| APPEAL NUMBER: | SOA | 23 | of | 2020 |
| DATE DELIVERED: | 10 March 2021 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne (via video link) |
| JUDGMENT OF: | Kent, Watts & Austin JJ |
| HEARING DATE: | 18 August 2020 and by written submissions filed on 12 February 2021 (appellant) and 26 February 2021 (respondent) |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 February 2020 |
| LOWER COURT MNC: | [2020] FamCA 77 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Geddes QC with Ms Bryan |
| SOLICITOR FOR THE APPELLANT: | Sage Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr Smith |
| SOLICITOR FOR THE RESPONDENT: | Barbayannis Lawyers Pty Ltd |
Orders
The application to adduce further evidence on appeal be allowed.
The appellant have leave to appeal from the orders made on 18 February 2020 and the appeal be allowed.
The orders made by the primary judge on 18 February 2020 be set aside.
The application of the appellant for a stay of the Australian proceedings and the application of the respondent for an anti-suit injunction in respect of the property settlement proceedings instituted in Singapore be remitted for rehearing by a judge other than the primary judge.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the rehearing ordered.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Obannon & Scarffe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 23 of 2020
File Number: MLC 2940 of 2019
| Ms Obannon |
Appellant
And
| Mr Scarffe |
Respondent
REASONS FOR JUDGMENT
This is an application by Ms Obannon (“the wife”) for leave to appeal and, if leave is granted, to appeal from orders made by a judge of the Family Court of Australia on 18 February 2020. By those orders the wife’s application to stay, on forum grounds, property settlement proceedings[1] instituted by Mr Scarffe (“the husband”) in Australia was dismissed, and the wife was enjoined by an anti-suit injunction from further prosecuting proceedings she had instituted in the Family Justice Courts in Singapore against the husband (“the Singapore proceedings”).
[1]Pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
The Singapore proceedings commenced by the wife (proceedings …2019) sought orders with respect to divorce, parenting arrangements, property settlement, spousal maintenance and child support. The husband sought a limited restraint with respect to the Singapore proceedings confined only to enjoining the wife “insofar as those proceedings relate to property matters arising from the breakdown of the parties’ marriage”.[2]
[2]Husband’s Amended Initiating Application filed on 7 November 2019, as amended the husband’s written submissions filed on 9 January 2020, paragraph 20.
As the transcript before the primary judge reveals, and as counsel for the husband confirms on the hearing of the appeal, at no stage did the husband advance before the primary judge the making of an injunction restraining the totality of the Singapore proceedings. The imposition of such a broad restraint was not raised with the parties by the primary judge at any stage, and thus neither party addressed submissions directed to restraining the Singapore proceedings in their totality. However, the subject order made by the primary judge effects a total restraint.
The husband concedes on appeal that Ground 1 of the appeal, contending that the parties were not afforded procedural fairness by the primary judge before such a “wholesale” injunction in respect of the Singapore proceedings was made, must succeed.[3]
[3]Husband’s Summary of Argument filed on 13 August 2020, pages 2–3.
Consequently the husband contends that the appeal ought be allowed “in part” with this Court re-exercising the discretion to substitute the order for the
anti-suit injunction made by the primary judge with the more limited restraint as was sought by the husband before the primary judge.[4] The husband otherwise opposes the appeal.
[4]Husband’s Summary of Argument filed on 13 August 2020, paragraph 12.
It follows from the husband’s concession of Ground 1 of the appeal, and our acceptance that the concession is properly made as will be further discussed, that there ought be a grant of leave to appeal and for the appeal to be allowed.
For her part, the wife’s primary position is that having allowed the appeal and setting aside the subject orders this Court should re-exercise the discretion and grant a stay of the husband’s Australian proceedings. In the alternative the wife seeks that the proceedings be remitted for rehearing.
For the reasons which follow, mainly related to issues concerning the applicable law in Singapore, and the need for the parties to have an opportunity to address expert evidence in that respect, the proceedings ought be remitted for rehearing.
Aside from the procedural fairness challenge in Ground 1, taken from her Further Amended Notice of Appeal filed on 24 July 2020 the wife contends on appeal, in summary, that the primary judge:
a)made erroneous findings of fact (Ground 2);
b)made errors of law by applying incorrect principles and taking into account irrelevant matters and overlooking relevant matters, including the contention that an earlier dismissal of the husband’s application before the court in Singapore to stay the property relief sought by the wife by the Singaporean proceedings gives rise to res judicata (Ground 3);
c)erred in admitting into evidence an affidavit of the husband’s lawyer concerning the law in Singapore; or alternatively erred in affording that evidence undue weight, or in failing to afford the wife procedural fairness in relation to that evidence (Ground 4); and
d)failed to provide adequate reasons for judgment (Ground 5).
In further written submissions filed on 12 February 2021 subsequent to the conclusion of the hearing of the appeal, the wife purports to seek leave to amend Ground 3 of the appeal by removing reference to “res judicata” and replacing it with “preclusion by estoppel”. Leave to amend is opposed by the husband and that taken with the circumstance that the hearing of the appeal has been completed we decline the grant of leave. In any event, as will be discussed, we address the question of estoppel as this was raised before the primary judge.
Preliminary issues
Challenge to the adequacy of reasons for judgment
As noted, Ground 5 of the appeal is a challenge as to the adequacy of the reasons for judgment of the primary judge. Given that this is one of the challenges on appeal, a question arises on this appeal as to the order in which the grounds should be considered and the relief which is available. Statements made by this Court in a number of recent cases,[5] citing Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd[6] and Royal Guardian Mortgage Management Pty Ltd v Nguyen[7] address these questions. For example in Fitzwater the majority of the Full Court stated:
2.It is necessary to deal first with Ground 7 which asserts that the trial judge did not give adequate reasons for the finding of unacceptable risk of harm if the eldest child (“the child” or “X”) was to spend unsupervised time with the father. A challenge to reasons for judgment is a challenge to the integrity of the Court process and, if successful, requires a rehearing of the matter (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; 231 ALR 663; 70 IPR 468; [2006] HCA 55 at [1]–[2]; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 at [6]–[9]).
[5]Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”); Trebiano & Trebiano [2019] FamCAFC 16; El Rashidy & El Rashidy and Anor (2020) FLC 93-944 (“El Rashidy”); Sargent & Selwyn [2020] FamCAFC 110; Rice & Rice [2020] FamCAFC 174.
[6](2006) 229 CLR 577 (“Concrete”).
[7](2016) 332 ALR 128 (“Royal Guardian”).
It is not apparent from this judgment (or any other that have repeated it) that this statement was the product of any submissions by the parties directed to the issue. However the statement appears to conclude that the effect of Concrete and Royal Guardian is that a complaint on an appeal to this Court concerning adequacy of reasons is to be equated with complaints of bias and procedural fairness, such that a reasons challenge must be dealt with first by the Court of Appeal and, if established, the validity of the trial itself is impugned such that the remedy is a retrial.
In Royal Guardian, Basten JA referred to the judgment in Concrete as follows:
9.Identification of the issues raised on the appeal leads to a significant question as to how they should be addressed. On one view, convenience would dictate that the conventional challenges, at least in relation to the contractual arrangements and the breaches of contract, should be addressed first. That is because an assessment of the nature and significance of the judge’s interventions in the course of the trial are not readily assessed, absent a detailed understanding of the issues. On the other hand, the High Court has stated that the issue of bias (and by extension procedural unfairness) should be addressed first. In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, a case involving a substantive claim relating to copyright in architectural plans, Gummow ACJ held that the Full Court of the Federal Court had fallen into error by dealing first with the substantive issues and then with the alleged appearance of bias on the part of the trial judge. He continued:
“If the bias submissions were to succeed, the remedy would be a retrial. If the copyright submissions were to succeed, the Full Court would itself provide the orders which should have been made and there would be no occasion to order a retrial.”
10.Callinan J expressed the same view in language similar to that of Gummow ACJ. The same principle was articulated in the joint reasons of Kirby and Crennan JJ:
“An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias. Furthermore, if, as here, an intermediate appellate court finds the allegation made out, but grants no relief because it otherwise finds in favour of the party making the allegation, a defect in the administration of justice has been found to have occurred which, in the absence of any successful appeal on the point, will remain unremedied. Inevitably, this adversely affects public confidence in the administration of justice.”
(Footnotes omitted)
In Royal Guardian Ward JA (with whom Emmett AJA agreed) likewise referred to Concrete and Basten JA’s citation of that authority.[8]
[8]Royal Guardian at [260].
Given this issue, at the outset of the hearing of this appeal we directed counsel’s attention to El Rashidy, another case where a similar statement was made by this Court,[9] and sought submissions on the point. We acknowledge immediately that counsel had only a limited opportunity to consider the issue given that it was first raised at the outset of the appeal hearing and due allowance must be made for that context in considering counsel’s submissions.
[9](2020) FLC 93-944 at [15].
We are mindful of the caution to be taken before departing from earlier decisions but we are compelled to conclude the earlier decisions with respect to this issue are wrong.[10]
[10]Nguyen v Nguyen (1990) 169 CLR 245 per Dawson, Toohey and McHugh JJ at 269.
We do not read anything in Concrete or in Royal Guardian (cases dealing with bias and procedural unfairness) as supporting the proposition that the principles discussed in those cases apposite to challenges of bias and procedural unfairness agitated before an intermediate appellate court apply, by any necessary extension, to a challenge as to the adequacy of reasons. Our research does not reveal any authority of the High Court of Australia or of any other intermediate Court of Appeal to the effect that inadequacy of reasons for judgment impugns the conduct of the trial itself, such that it is a challenge to be equated with bias or procedural unfairness in the manner in which an intermediate Court of Appeal deals with such complaint, or the relief available if the complaint is established.
Indeed to contrary effect in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17[11] Steward J (with whom the other members of the High Court of Australia agreed) recorded his Honour’s acceptance of a submission that the final instance of any right or entitlement of either party arising from the primary judge’s obligation to afford procedural fairness occurred at the time the parties made their concluding submissions and thereafter, the trial having finished, procedural fairness had no role to play in respect of the matters the subject of the primary judge’s decision.[12]
[11][2021] HCA 6.
[12]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 at [22].
It can be readily accepted, as discussed in Concrete and Royal Guardian, that bias of a trial judge or the failure of a trial judge to provide procedural fairness, infects the integrity of the trial itself. The parties have not been afforded a fair hearing or fair trial. Axiomatically, a fair trial must be afforded to parties before final orders can legitimately be determined and an appellate court is bound to order a rehearing for that purpose. However, to be contrasted is a case where an entirely fair trial or hearing has been concluded, but the error lies in some inadequacy of reasoning for the orders made. If the appellate court is able to
re-exercise the discretion for itself on the trial material (and those of the reasons for judgment not impugned on appeal) there would appear to be no logical restraint upon the appellate court so doing.
We thus conclude that the principles applicable to challenges on appeal of bias or procedural unfairness, and the relief available if such challenges are established, as discussed in Concrete and Royal Guardian do not, by any necessary extension, apply to a challenge as to the adequacy of reasons.
We therefore propose to deal with Ground 5 of the appeal in sequence with the other substantive complaints on appeal. Likewise, as other grounds of appeal invite consideration of the adequacy of the reasons, this aspect will be dealt with when addressing those grounds.
Application for further evidence on appeal
By Application in an Appeal to adduce further evidence the wife seeks to adduce into evidence two provisions of a statute in Singapore, namely s 112 and s 114 of the Women’s Charter (Singapore)[13] sourced from the Singapore Statutes Online website maintained by the Singaporean Government.
[13](Singapore, cap 353, 2009 rev ed).
In her affidavit filed in support of this application the wife refers to the fact that the expert evidence of Ms H, the husband’s lawyer in the Singapore proceedings relied upon before the primary judge, was not received by the wife’s former solicitors until shortly before the hearing before the primary judge (allowing for the December vacation period) and it was not appreciated that the expert evidence was incomplete by omission of the full terms of the relevant sections. The wife contends this had the consequence that the primary judge was led into error as to the applicable law in Singapore and is relied upon in support of various challenges on appeal, including Ground 4 being the overall challenge to the primary judge’s receipt of the expert evidence.
The husband objects to the application primarily in resisting Ground 4 of the appeal and contends that the proper interpretation and application of the relevant sections under the law in Singapore is not the subject of any evidence.
We have resolved to accede to the application as the subject sections are relevantly considered in association with some of the challenges on appeal as will be discussed. Pursuant to s 174 of the Evidence Act 1995 (Cth) (“the Evidence Act”) the evidence is admissible.
Background
The husband was born in 1971 and is 49 years old. He currently resides in Australia.
The wife was born in 1971 and is 49 years old. She and the parties’ three children, a daughter born in 2004 and now aged 16 years, a son born in 2006 and now aged 14 years and a daughter born in 2009 and now aged 11 years, currently reside in Singapore. The parties and their children are Australian citizens.
The parties commenced their relationship in Australia in 1996, commenced cohabitation in 1997 and married in Australia in 2014.
The husband was previously engaged in employment in the finance industry and to pursue such employment the husband relocated to Singapore in April 2014 and the wife and children followed in May 2014. The wife and children have continued to reside in Singapore ever since in the same rental apartment that the family occupied in Singapore.
The parties separated in August 2016 when the husband vacated the former matrimonial home in Singapore. The husband contends this to be the parties’ final separation, whilst the wife contends that final separation occurred in January 2017. In any event, the husband remained in Singapore until his then employment contract ended in May 2018 upon which the husband relocated to Australia where he has continued living.
Initially upon his return to Australia the husband undertook employment as a process worker in Victoria but ceased that employment in November 2019 in order to pursue employment in disability services.
The wife is a researcher and is effectively self-employed in that capacity and as a company director in her company incorporated in Singapore in 2016.
The husband deposes that in 2016 the wife obtained an employment pass in Singapore which also allowed the children to obtain dependency passes in Singapore.[14]
[14]Husband’s affidavit filed on 7 November 2019, paragraphs 20–21.
On the husband’s evidence before the primary judge the wife’s employment pass in Singapore was to terminate in October 2020 with no evidence from the wife as to whether there has been a renewal or whether the employment pass will be renewed. On the wife’s evidence before the primary judge it was plainly her intention to continue to reside in Singapore with the children and to pursue her business in Singapore.
The evidence of the wife before the primary judge included allegations to the effect that the husband struggled with his sexuality and gender identity as well as his mental health which resulted in the husband threatening to kill the wife or himself on several occasions and with the husband ultimately being hospitalised. Most of these allegations were put in dispute on the husband’s evidence.
The wife commenced proceedings in relation to the children in Singapore on 3 February 2017 with final consent orders made in relation to the children in April 2017 providing for the children to reside with the wife and to spend time with the husband. Obviously those orders were made at a time when both parties were resident in Singapore.
The wife commenced divorce, property settlement, spousal maintenance and child support proceedings in Singapore on 19 February 2019. The husband initiated property settlement proceedings in Australia on 21 March 2019.
The husband sought a stay of the Singapore proceedings on 26 March 2019 on the basis of forum non conveniens which application was dismissed with costs on 7 August 2019. The husband did not appeal that decision.
More will be said about the wife’s Singapore proceedings in addressing the grounds of appeal.
As for the parties’ property, it is uncontroversial that their joint assets are located in Australia with a real property in Suburb C constituting the majority in value of property interests, that property having an estimated value of $2,800,000, subject to a mortgage debt of approximately $530,000. There is a dispute surrounding a caveat lodged over the Suburb C property by the company J Pty Ltd operated by the wife’s parents in relation to a loan to the parties, on the wife’s case, of $575,000. That this advance is a loan is disputed by the husband.
Subsequent to the parties’ final separation, in March 2017, the wife’s father passed away and the wife has an expectancy to inherit a substantial sum from her father’s estate. There are unresolved tax issues concerning the estate.
Both parties have some bank accounts in Australia with modest balances and both parties have superannuation in Australia.
An important component of the factual background is the chronology of events concerning litigation between the parties since parenting proceedings were first instituted by the wife in Singapore in February 2017. This chronology is conveniently extracted and paraphrased from the chronology provided in the wife’s Summary of Argument filed on 24 July 2020 as follows:
February 2017 wife files parenting proceedings in Singapore (…/2017) 13 April 2017 parties enter into consent orders concluding the parenting proceedings June 2017 wife issues in Singapore personal protection proceedings
(SS 1250/2017) and obtains an order protecting her and the childrenNot known husband issues in Singapore a cross-application for a personal protection order against the wife (…2017) 4 January 2018 parties mutually withdraw their personal protection applications in Singapore 19 February 2019 wife issues further proceedings in Singapore relating to “divorce, the parenting arrangements, a division of the matrimonial assets, spousal maintenance and child support” (…2019) 21 March 2019 husband issues proceedings in the Family Court of Australia (Australian proceedings) seeking an unparticularised property settlement pursuant to s 79 but no interim orders (and no anti-suit injunction against the wife) 26 March 2019 husband files an application for a stay of the Singapore proceedings 6 June 2019 procedural orders entered by Registrar George in the Australian proceedings 7 August 2019 husband’s application for a stay of the Singapore proceedings dismissed with costs 20 August 2019 husband files defence and counterclaim in the Singapore proceedings 21 August 2019 appeal window closes on dismissal of husband’s stay application and costs order against him in the Singapore proceedings; husband does not appeal 28 August 2019 parties participate in a case conference in the Singapore proceedings 18 September 2019 wife files her Response to Initiating Application and supporting affidavit in the Australian proceedings seeking, inter alia, dismissal of the husband’s Initiating Application 25 September 2019 parties participate in family dispute resolution conference in the Singapore proceedings; directions made, inter alia, for exchange of proposals 4 November 2019 parties participate in full day court mediation in the Singapore proceedings 7 November 2019 husband files Amended Initiating Application and supporting affidavit in the Australian proceedings seeking an anti-suit injunction against the wife in respect of the property settlement component of the Singapore proceedings 10 December 2019 parties participate in further court mediation in the Singapore proceedings 20 December 2019 husband files an affidavit of his Singapore solicitor, Ms H, annexing letters 23 December 2019 wife files her second affidavit in the Australian proceedings 16 January 2020 hearing before primary judge 18 February 2020 primary judge delivers orders under appeal
Challenges on appeal
The wife’s Further Amended Notice of Appeal contains five grounds of appeal as follows:
1.That his Honour did not afford the parties procedural fairness before making a wholesale injunction against the [wife] continuing to pursue proceeding …2019 (or other similar proceeding) in circumstances where the [husband]:
(a)was only seeking an injunction “in relation to property matters”; and
(b)conceded that the [wife] would “continue” to prosecute proceedings in Singapore “insofar as they do not relate to property matters”.
2.That his Honour made findings of fact, in relation both to the comparative operation of the laws of Singapore and Australia and to the parties’ factual circumstances, that were:
(a)erroneous; or
(b)unavailable or unwarranted at an interim stage of the proceedings,
so as to cause his Honour to improperly exercise his discretion in reliance on those facts.
3.That in determining whether or not to grant the wife a stay of the Australian proceedings
Australia was a “clearly inappropriate forum”, his Honour erred at law by:(a)incorrectly applying established principles;
(b)invoking incorrect principles;
(c)invoking irrelevant principles;
(d)giving incorrect weight to various findings of fact;
(e)taking into account irrelevant matters; and
(f)overlooking relevant matters,
including by:
(i)undertaking a comparative study of the law in Australia and Singapore;
(ii)providing an exposition of the Kennon line of cases in Australia; and
(iii)failing to give appropriate weight to the prior conflicting decision of the Family Justice Courts in Singapore (and in so doing, failing to take proper account of the doctrine of comity and res judicata),
such that in its totality, his Honour’s exercise of discretion miscarried and consequently in the decision to grant an anti-suit injunction against the wife.
4.That in relation to the affidavit of Ms H filed on 20 December 2019, his Honour erred by:
(a)admitting the affidavit into evidence in circumstances where the affidavit contained:
(i)hearsay evidence the source of which was unstated; and
(ii)expert opinion evidence in respect of which:
A.it was insufficiently established that the deponent possessed the necessary expertise to proffer the various opinions the subject matter of her affidavit;
B.the factual bases for certain opinions were not explicated by the deponent; and
C.concessions by the [wife’s] counsel in oral submissions were unable to cure these deficiencies and did not relieve his Honour of the need to be independently satisfied of each of these matters;
(b)If the evidence was correctly admitted, affording the evidence undue weight;
(c)Not affording the [wife] procedural fairness in relation to a right of reply;
(d)Not affording the [wife] an opportunity to test the evidence under cross-examination; and
(e)Not particularising in which respects his Honour perceived the evidence to be attended by error and in which respects his Honour accepted the evidence as correct.
5.That his Honour’s reasons for decision fail to adequately disclose his Honour’s chain of reasoning from findings of fact through to the exercise of his Honour’s discretion to refuse a stay of the Australian proceedings.
(As per the original)
Ground 1 (procedural unfairness)
We have already made reference to the feature that this ground of appeal is conceded by the husband. For the following reasons we are satisfied that the husband’s concession is properly made.
By his Amended Initiating Application filed on 7 November 2019 the husband sought interim orders including the following:
2.It be declared that Australia is not a clearly inappropriate forum for the determination of property and spousal maintenance matters arising from the breakdown of the parties’ marriage and accordingly proceeding number MLC 2940/299 continue in full force and effect.
3.The wife be and is hereby restrained by way of injunction from taking any action in any court proceedings in Singapore insofar as those proceedings relate to property matters arising from the breakdown of the parties’ marriage, including but not limited to proceeding number …2019 in the Family Justice Courts of the Republic of Singapore.
(As per the original)
The husband’s written submissions filed on 9 January 2020 before the primary judge contained:
18.Independent of the stay issue, the husband seeks an anti-suit injunction restraining the wife from taking any further action in Singapore in relation to property matters. The husband concedes that the balance of the Singapore proceedings, insofar as they do not relate to property matters, will continue.
…
20.The husband seeks the interim orders contained in his Amended Initiating Application filed 7 November 2019. The only amendment to those orders is that order 2 should refer only to property matters (i.e. the reference to spousal maintenance matters should be deleted).
(Emphasis added)
Review of the transcript of the hearing before the primary judge confirms that counsel for the husband identified to his Honour that the “only issue” was property settlement and that the anti-suit injunction sought by the husband was directed only to the property settlement aspect of the Singapore proceedings.[15]
[15]Transcript 16 January 2020, p.5 lines 24–25.
We accept the submission by counsel for the husband in conceding this ground that a restraint of the totality of the Singapore proceedings was not raised with the parties prior to the order being made, and no submission was made by either party with respect to restraining the Singapore proceedings in their totality. Moreover, we accept the submissions, on both sides of the record, to the effect that in restraining the wife from continuing her parenting proceedings in Singapore the primary judge failed to have any regard to the applicable principles articulated in Pascarl v Oxley[16] and the authorities discussed in that case, in determining forum if parenting proceedings in Australia are to be contemplated in circumstances where the wife and children are continuing to reside in Singapore.
[16](2014) 49 Fam LR 364.
Apart from the husband’s appropriate concession of Ground 1 of the appeal having the consequence that leave to appeal ought be granted, and the order for the anti-suit injunction made by the primary judge being set aside, other consequences of the established error follow.
At all material times the husband has submitted, and intends to continue to submit, to the jurisdiction of the Singapore court in relation to the parties’ divorce, the determination of parenting matters, and the determination of spousal maintenance and child support issues.
The husband’s position, if accepted, would see a bifurcation of the proceedings arising from the breakdown of the marital relationship with property settlement being determined in Australia and the Singapore proceedings continuing, other than in respect of property settlement. However, there would also be some potential further complication to property settlement proceedings continuing in Australia. It is well settled that in determining orders under Part VIII of the Act the Court first determines property settlement under s 79 before considering spousal maintenance.[17]
[17]Clauson and Clauson (1995) FLC 92-595; Bevan and Bevan (1995) FLC 92-600.
It follows that aside from the error identified in Ground 1 of the appeal, the primary judge erred in failing to have regard to these material considerations in refusing the wife’s application for a stay of the property settlement proceedings in Australia.
In the wife’s Summary of Argument for the appeal the approach is taken of addressing the wife’s challenges on appeal in topic form, by reference to identified “key issues” as described, which in some instances overlap more than one stated ground of appeal. It is convenient that we adopt the same approach and, largely, the same sequence taken by the wife in dealing with the balance of the wife’s challenges.
Res judicata (Ground 3)
As has already been noted, on 19 February 2019 the wife issued proceedings in Singapore for “a divorce, the parenting arrangements, a division of the matrimonial assets, spousal maintenance and child support” (…2019), conveniently described as the Singapore proceedings.
In her affidavit filed on 18 September 2019 the wife deposes:
15.On 26 March 2019 [the husband] filed an application for a stay of the Singapore proceedings on the basis of forum non conveniens. [The husband’s] stay application was dismissed with costs on 7 August 2019 by [the District Judge].
16.[The husband] had 14 days to appeal [the District Judge’s] decision to the High Court, which expired on 21 August 2019. He did not appeal.
17.[The husband] filed his Defence and Counterclaim in the Singapore proceeding on 20 August 2019.
(As per the original)
The judgment rendered by the Singapore court on 7 August 2019 was not put into evidence and the above is the limit of the wife’s evidence on the topic. It appears not to be in issue that no written reasons for judgment or the decision were provided by the Singapore court.
In his subsequent affidavit filed on 7 November 2019 the husband deposes:
33.On 15 February 2019, having been alerted by my lawyer that I may need to commence proceedings here, [the wife] commenced proceedings for divorce in Singapore in the Family Justice Courts of the Republic of Singapore (proceeding number …2019). In her Statement of Claim, [the wife] claimed relief in relation to the following matters:
a.divorce;
b.custody, care and control of the children of the marriage;
c.access to children of the marriage;
d.division of the matrimonial assets (aside from the matrimonial home);
e.maintenance for wife/incapacitated husband;
f.maintenance for children of the marriage; and
g.costs.
…
38.On 26 March 2019 I filed an application in the Singapore proceedings, seeking to stay those proceedings. The matter was determined on 7 August 2019 and my stay application was dismissed. There were no written reasons for judgment delivered.
39.I was ordered to pay [the wife] costs in the sum of SGD $2,000. I am yet to make the payment.
40.As the Singapore proceedings were not stayed, I have now filed a Defence and Counterclaim in those proceedings.
(As per the original)
One of the questions posed by the husband’s Australian lawyers of
Ms H, the expert on the law of Singapore the husband relied upon, was as follows:[18]
9.The husband applied for a stay of the proceedings in Singapore, which was unsuccessful. Why was the stay not granted? What is the test for determining appropriate forum in Singapore?
[18]Affidavit of Ms H filed on 20 December 2019, Annexure “A”.
Ms H provided this by way of response:[19]
[19]Affidavit of Ms H filed on 20 December 2019, Annexure “B”.
62.The law on stay of proceedings on the ground of forum non conveniens is well-settled. The Court of Appeal in TGT v TGU [2015] SHGCF 10 has affirmed that the principles enunciated by the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460 (“Spiliada”) apply. The Spiliada principles are applied in a two-stage test:-
a)Stage 1: The identification of the most appropriate forum for the trial of the action. At this stage, the onus is on the [husband] to establish that there is a clearly more appropriate forum than Singapore for the trial of the divorce action. If the Applicant-Husband succeeds, then a stay will ordinarily be granted.
b)Stage 2: At this stage, the burden shifts to the [wife] to persuade the court to refuse to grant the stay. If the [wife] can establish that she will be denied substantial justice, if she is forced to pursue her claim in the more appropriate foreign court.
63.In order to determine if there is clearly a more appropriate forum than Singapore, the Singapore Courts will have to determine the forum with which the dispute has the most real and substantial connection (ie connecting factors). Some of the relevant connecting factors that the Singapore Courts will consider in determining whether there is a more appropriate forum for Stage 1 of the Spiliada test includes but is not limited to:-
a)The domicile and residency of the parties;
b)Location of the parties’ assets;
c)Whether there is a concurrent action pending in another court (termed as lis alibi pendens);
d)Location of witnesses;
e)The law governing the relevant issues;
f) The country where most of the marriage was lived out; and how readily foreign judgments are recognized.
64.This list is not exhaustive. The weight to be attached to the various factors relevant to any given case also varies from one case to another.
65.We are unable to provide an opinion as to why the stay of proceedings in Singapore was not granted. However, from our understanding, the Honourable [District Judge] did, during the hearing, questioned why divorce proceedings in the Australia was not commenced earlier. He also questioned the husband’s application in Australia when acknowledges that Singapore was the proper forum to deal with the children issues given that the children are in Singapore. We assumed these matters played a persuasive role at Stage 1 of the Spiliada test.
(As per the original)
The surmise or speculation by Ms H at paragraph 65 quoted above was the limit of any evidence before the primary judge as to any reasons for refusal by the Singapore court of the husband’s stay application. We note in passing that there was no evidence before the primary judge as to whether, under the law of Singapore, the decision rendered by the court in Singapore dismissing the husband’s application for a stay of proceedings was final.
Against that background, Queen’s Counsel for the wife contended before the primary judge that the dismissal of the husband’s application for a stay of the Singapore proceedings gave rise to, as variously described by counsel in submissions, “issue estoppel” or “issue estoppel res judicata” or “res judicata”.
In the wife’s Summary of Argument filed on 24 July 2020 it is submitted:
11.Pursuant to the doctrine of res judicata, the wife submits that the husband’s stay application in Singapore constituted a
self-contained, interlocutory cause of action giving rise to a cause of action estoppel upon its conclusive determination by the Singaporean court. This is a separate basis for granting a stay to the “clearly inappropriate forum” test.
12.The wife in oral submissions developed her argument that res judicata compelled the court to grant the stay sought by her. His Honour does not materially attend to this argument in the reasons, which the wife submits constitutes appealable error.
13.His Honour observes that it was “not possible … to understand on what grounds [the husband’s stay application was refused in Singapore] as no written reasons were given”. This statement is inapposite. His Honour is entitled to – and should, by reason of comity of courts if no other – infer that the Singaporean judge made a determination squarely in accordance with the laws of that country that the husband’s stay application ought not succeed. There is nothing more to be deduced or gleaned or evaluated by his Honour in those circumstances. It is not for a judge of this court to sit in judgment on the properly-executed decision of a foreign court, there being no suggestion that the decision was anything other than properly-executed. This is all the more so given the husband’s failure to avail of an appeal in that jurisdiction, to which point his Honour makes no reference at this juncture in his reasons.
14.The decision of the Singaporean courts to dismiss the husband’s stay application is, in and of itself, prima facie evidence that the courts of that country considered that they were placed to hear the matter.
(As per the original) (Footnotes omitted)
In oral argument of the appeal Queen’s Counsel for the wife relied upon the following passage from the decision of the High Court of Australia in Tomlinson v Ramsey Food Processing Pty Ltd[20] submitting that this case fell into the first category identified, namely, cause of action estoppel.
22.Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as “cause of action estoppel”. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as “issue estoppel”. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”. The third form of estoppel is now most often referred to as “Anshun estoppel”, although it is still sometimes referred to as the “extended principle” in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a “true estoppel” and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
(Footnotes omitted)
[20](2015) 256 CLR 507 (“Tomlinson v Ramsey Food Processing Pty Ltd”).
Cited in support of the submission at paragraph 11 of the wife’s Summary of Argument filed on 24 July 2020 quoted above, is the decision of the Full Court of this Court in Bant & Clayton (No 2),[21] with the citation noting that special leave to appeal that decision had been granted by the High Court of Australia. Reference to the Full Court’s decision was also made in the husband’s submissions. In circumstances where during the period judgment was reserved in this appeal, the High Court of Australia delivered its decision on 2 December 2020 allowing the appeal and setting aside the orders of the Full Court,[22] we considered it necessary to afford the parties the opportunity to provide further written submissions in the light of the High Court of Australia’s determination. We made orders to facilitate that occurring.
[21](2019) FLC 93-925.
[22]Clayton v Bant (2020) 385 ALR 41 (“Clayton”).
The wife’s submissions were filed on 12 February 2021 and the husband’s on 26 February 2021.
We accept there is some force in the wife’s complaint that more was required, in dealing with this issue, than the primary judge’s observation at [23] of the reasons that:
23.… In the Singaporean court, the applicant’s stay application was refused, yet it is not possible for [the trial judge] to understand on what grounds as no written reasons were given…
However, we do not elevate that omission as constituting appellable error as it was not, in our judgment, material.
For the following reasons we are not persuaded that dismissal of the husband’s stay application in Singapore has a preclusionary effect upon the husband advancing a claim under s 79 of the Act in Australia, or that it was axiomatic that a stay of those proceedings ought to have been granted, or that the husband was precluded from seeking an anti-suit injunction.
At [26]–[28] of Clayton the plurality (Kiefel CJ, Bell and Gageler JJ) held:
26.Once it is appreciated that the rights in issue in the property settlement proceedings and in the spousal maintenance proceedings are the statutory rights of the wife to seek orders under ss 74(1) and 79(1) of the Act, it is apparent that the ruling made by the Dubai Court cannot give rise to a res judicata in the strict sense in which that term continues to be used in Australia. The rights created by ss 74(1) and 75(1) cannot “merge” in any judicial orders other than final orders of a court having jurisdiction under the Act to make orders under those sections. The rights of the wife to seek orders under ss 74(1) and 79(1) continue to have separate existence unless and until the powers to make those orders are exercised on a final basis and thereby exhausted.
27.For the ruling made by the Dubai Court to preclude the wife from pursuing the property settlement proceedings and the spousal maintenance proceedings, that preclusion can occur, if at all, through the operation of the common law doctrine of estoppel. No argument is made that the operation of that common law doctrine is excluded by the scheme of the Act.
28.Two forms of estoppel are potentially applicable. One is that sometimes referred to as “cause of action” estoppel. The terminology has been recognised as problematic given the range of senses in which the expression “cause of action” tends to be used. The relevant sense is that of title to the legal right established or claimed. Especially in a statutory context such as the present, the form of estoppel would be better referred to by the more generic description of “claim” estoppel. The other form of estoppel is most commonly referred to in Australia as “Anshun estoppel”, after Anshun, although the Full Court chose to refer to it as the “Henderson extension”.
(Footnotes omitted)
As the plurality held at [26] in Clayton, the statutory right to seek orders under s 79 of the Act cannot “merge” in any judicial orders other than final orders of a court having jurisdiction under the Act to make orders under that section. Res judicata in the strict sense cannot arise from the order made by the Singaporean court.
At [27] and [28] the plurality identified two forms of estoppel potentially applicable in that case, namely cause of action estoppel, better referred to as claim estoppel, and Anshun[23] estoppel.
[23]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
In relation to these forms of estoppel the plurality observed:
29.Both of those potentially applicable forms of estoppel operate to preclude assertion of rights by parties to proceedings. But they do so in ways not adequately differentiated in the reasoning of the Full Court. In the context of the property settlement proceedings and the spousal maintenance proceedings, claim estoppel would operate to preclude assertion by the wife of any right non-existence of which was asserted by the husband in the Dubai proceedings and finally determined by the ruling of the Dubai Court.[24] Anshun estoppel would preclude assertion by the wife of any right which she could have asserted in the Dubai proceedings but which she chose to refrain from asserting in circumstances which made that choice unreasonable in the context of the Dubai proceedings.[25]
[24]Citing Tomlinson v Ramsey Food Processing Pty Ltd at [22].
[25]Citing Tomlinson v Ramsey Food Processing Pty Ltd at [22].
Clearly, the husband’s right to seek an order under s 79 of the Act was not finally determined by the ruling of the Singaporean court dismissing his application for a stay of the Singapore proceedings. Taken from the evidence of
Ms H earlier referred to, and allowing for the absence of any evidence as to precisely what was advanced before the Singaporean court for determination, putting it at its highest the issue raised for determination was whether, applying the Spiliada[26] test applicable as the forum test in Singapore, it could be concluded that Australia is the more appropriate forum, as compared with Singapore, as the forum in which the issues raised in the Singapore proceedings, commencing with the divorce, ought be determined.
[26]Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460.
Even assuming that was in fact the issue before the Singaporean court, requiring a degree of speculation given the absence of evidence, that clearly is not the same issue as was raised for determination by the primary judge, that issue being whether Australia is a “clearly inappropriate” forum for the determination of his s 79 claim.
Given that the determination of the Singaporean Court did not determine any substantive rights to property of the parties, that determination did not have preclusive effect upon the husband pursuing in Australia an order pursuant to s 79 of the Act. Further, given that any forum issue before the Singaporean court on the husband’s stay application in Singapore was not the same forum issue as that advanced by the husband in the Australian proceedings, either as to the substantive claims sought to be stayed, or the test to be applied, the husband was not estopped by the determination in Singapore from advancing his application for an anti-suit injunction.
In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2),[27] a decision which has often been cited in Australia in cases concerning the recognition and enforcement of foreign judgments at common law, and estoppel in that context, the majority held in respect of estoppel that necessary for any question of estoppel to arise the issue in question should have been fully litigated before, and considered by, the foreign court and that the foreign court’s decision on that issue would operate by way of issue estoppel in the courts of the country where it was rendered.[28] There was no evidence before the primary judge, nor before this Court, that the Singaporean court’s dismissal of the husband’s stay application would operate by way of issue estoppel in the courts of Singapore. Absent any reasons for judgment, as referred to by the primary judge, it is not possible to identify the legal and factual grounds upon which the decision rests.[29]
[27][1967] 1 AC 853 (“Carl Zeiss”).
[28]Carl Zeiss at 918–919 per Lord Reid.
[29]Telesto Investments Ltd v UBS AG (2013) 94 ASCR 29 at [211]–[222] per Sackar J; see also Jackson v Goldsmith (1950) 81 CLR 446 at 467 per Fullagar J.
Finally, it is well settled that a local court must decide for itself whether a foreign court has jurisdiction in the international sense, and there can be no issue estoppel in relation to a foreign court’s decision that it has jurisdiction.[30] It follows that the decision of the Singaporean court to dismiss the husband’s stay application does not give rise to any estoppel as to the determination by an Australian court as to whether Australia is a clearly inappropriate forum for the determination of the property settlement proceedings.
[30]Harris v Harris [1947] VLR 44; Jet Holdings Inc v Patel [1990] 1 QB 335 at 344 per Staughton LJ; Central Petroleum Ltd v Geoscience Resource Recovery LLC [2018] 2 Qd R 371 at [59] per Bowskill J.
We find no substance in the challenge that res judicata or estoppel applied.
Errors in factual findings of the primary judge (Ground 2)
The case before the primary judge proceeded on the papers without any oral evidence or cross-examination. The hearing, occupying a couple of hours, was confined to the primary judge receiving counsel’s written and oral submissions by reference to the affidavit material. It follows that findings of fact made by the primary judge are not the product of any advantage enjoyed by the primary judge that is not available to this Court and our review of the challenges made to the primary judge’s fact finding occurs in that context.[31]
[31]Warren v Coombes (1979) 142 CLR 531; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588; Fox v Percy (2003) 214 CLR 118 and Lee v Lee (2019) 266 CLR 129.
Some of the wife’s challenges to the primary judge’s fact finding seemed to us to lie at the margins of the case, such that even if they could be characterised as erroneous, they would not appear to be material to the outcome.[32]
[32]De Winter and De Winter (1979) FLC 90-605.
For example, included within [23] of the reasons is the statement “[a] large amount of litigation awaits, in either jurisdiction.” The wife challenges that finding on the basis of an absence of factual findings to underpin that conclusion with respect to the Singapore proceedings. We consider this criticism to be unjustified. The subject statement read in the context of the narrative of [23] of the reasons can readily be read as a summary reference to the feature that all issues consequent upon the breakdown of the parties’ marriage (aside from the divorce) appeared destined for a litigious resolution. We consider that in this context the finding expressed in such general terms as it was, was open to be made.
In a different category, in our judgment, is the challenged finding at [36] that “[the wife] and the children have no real connection to Singapore.”
In meeting this challenge counsel for the husband sought to highlight the wife’s connections to Australia via matters such as Australian citizenship; familial connections to extended family members in Australia; a comparison of time spent historically living in Australia; and assets located in Australia. However, the point is not whether the wife and children have connections to Australia, which undoubtedly is so, but whether the evidence justified a conclusion expressed in these terms.
On the evidence, in summary, the wife and children had relocated to Singapore in May 2014, had continued living there ever since, and on the wife’s case it was intended that she and the children would continue to make Singapore their home, there being nothing in the evidence to suggest any dispute about the children remaining in Singapore in the primary care of the wife.[33] Obviously, since 2014 the children have been undertaking their education in Singapore and the wife and children had thus continued living in Singapore for a substantial post-separation period. The wife’s evidence, undisputed in this respect, was that post-separation she had not been provided with any financial support by the husband for the children’s or her own support. From 2016 and continuing post-separation, the wife had pursued self-employment in her business in Singapore and she deposed to currently earning income of approximately $65,000 per annum. The wife deposed to expense and inconvenience for herself and the children, with potential disruption to the children’s education, and potential adverse impact upon the viability of her business, if pursuit of property proceedings in Australia involved any extended absence from Singapore.[34]
[33]Wife’s affidavit filed on 18 September 2019, paragraph 4.
[34]Wife’s affidavit filed on 18 September 2019, paragraph 22.
On the evidence summarised, the finding that the wife and children “have no real connection to Singapore” was not open. That erroneous finding was material given that connection to the respective jurisdictions is one of the important considerations identified by the High Court of Australia in Henry v Henry[35] in determining forum. To this may be added the observation that the primary judge appears to give no weight to the fact that Singapore is the country in which the parties last cohabitated, a factor identified in Henry (at 593) as a matter attracting weight and to be given consideration.
[35](1996) 185 CLR 571 at 592–593 (“Henry”).
The wife further contends that the primary judge was in error in finding at [23] that the Singapore proceeding has not “advanced terribly far … the divorce has not yet been granted and the ancillary matters are scarcely underway.” The wife points to her evidence that the granting of the divorce was the subject of agreement between the parties and that the parties were to “divorce on an uncontested basis by 24 December 2019, with an Interim Judgment for Divorce likely to follow at the next court event (then scheduled for 23 January 2020)”.[36] Moreover the wife points to her evidence of the chronology of events concerning the Singapore proceedings which were not adverted to by the primary judge in full suggesting that the evidence as a whole does not fit with a finding that ancillary matters were “scarcely underway”. The wife also refers to directions in the Singapore proceedings for financial disclosure.[37]
[36]Wife’s Summary of Argument filed on 24 July 2020, paragraph 20.
[37]Wife’s Summary of Argument filed on 24 July 2020, paragraph 22.
The wife asserts that the primary judge’s finding “appears to be an assumption that the pre-action and alternative dispute resolution procedures employed in Australian family law litigation find close parallel in Singapore, and that they are distinct from and precursory to the substance of the litigation”.[38] However no such assumption is reflected in the reasons expressed by the primary judge and we do not accept the assertion.
[38]Wife’s Summary of Argument filed on 24 July 2020, paragraph 23.
The primary judge summarised the parties’ respective evidence about the Singapore proceedings as follows:
14.The [wife] gave evidence in her affidavit made 23 December 2019 about the status and history of the Singapore proceeding. In essence, relevantly distilled she said the following –
a)she commenced litigation (…2019) in Singapore in which she sought orders for divorce, parenting, a division of matrimonial assets, spousal maintenance and child support;
b)under Singaporean divorce law, the divorce is conducted first and then, what are called “ancillary matters”, are dealt with thereafter;
c)ancillary matters include division of assets, alimony, custody as well as care, control and access to the children;
d)the [husband] and the [wife] agreed on the divorce aspect but not on the ancillary matters;
e)only when all ancillary matters are concluded, whether by agreement or order is a final judgment ordered after which the parties are free to remarry;
f)the [husband] and the [wife] participated in a mediation on 4 November 2019 and 10 December 2019; and
g) a case conference was to be held on 23 January 2020.
15.The [husband] devoted considerable attention to the Singapore litigation in his affidavit sworn 6 November 2019. The following is a distillation of the key issues that emerged from his evidence on point –
a)on 3 April 2017 he consented to an order for the children to spend time with him;
b)both he and the [wife] applied for personal protection orders against the other yet both applications were withdrawn on 4 January 2018;
c)he was served with court documentation in relation to the Singapore litigation on 20 February 2019;
d)on 26 March 2019 the [husband] applied to stay the Singapore proceeding;
e)on 7 August 2019 the stay application was dismissed, there being no written reasons for decision; and
f)he has filed a defence and counter-claim in the Singapore proceeding.
There was no evidence to suggest that the parties had, in the Singapore proceedings, filed any material for a final hearing; there was no evidence to suggest that the Singapore proceedings had been listed for final hearing; and the wife’s assertions to the effect that the judicial determination of the Singapore proceedings “may have been imminent” were not supported by any direct evidence before the Court. In this respect Queen’s Counsel for the wife relied upon the expert evidence of Ms H (notably the subject of challenge in Ground 4) but we do not consider that evidence establishes this contention. However, we accept that applying the description “scarcely underway” in relation to the Singapore proceedings understates the position and reflects a failure to give appropriate consideration to the Singapore proceedings having regard to the chronology of events including the imminent grant of the divorce, as agreed by the parties, which would allow the ancillary matters to advance. This is also identified as a relevant consideration in Henry (at 593). In this context it was also relevant that the husband’s stay application was dismissed in Singapore on 7 August 2019, yet it was not until 7 November 2019 that the husband filed an amended application in the Australian proceedings seeking an anti-suit injunction. In this respect the primary judge was mistaken in stating (at [1]) that this application came before him by referral via orders made on 6 June 2019.
As the chronology earlier outlined reflects, between 7 August 2019 and 7 November 2019 the husband had filed in Singapore not only a defence but a counterclaim (on 20 August 2019) and the parties had participated in a case conference (28 August 2019); a family dispute resolution conference with directions then being made for the parties to exchange proposals (25 September 2019); and a full day mediation (4 November 2019). The parties participated in a further court mediation in Singapore on 10 December 2019, in the shadow of the divorce to be granted a month later.
We are satisfied of the complaint of factual error on the part of the primary judge in this respect and a consequent failure to have properly considered material considerations with respect to the Singapore proceedings.
It is well settled that proof of foreign law is a question of fact, not of law.[39] To the extent then that the primary judge’s findings as to the law in Singapore are findings of fact they are addressed in this context. We accept the submission that in the absence of the full text of s 112 and s 114 of the Women’s Charter (Singapore), taken with the expert evidence of Ms H, which appears to be incomplete by reference to those sections, his Honour’s following findings were erroneous:
a)The finding that “the considerations in which the Singaporean courts engage in dividing property seem to be less intricate than are the considerations under s 79(4) …” (at [35(c)]); and
b)The finding that “under Singaporean law, no equivalent exists to the extensive array of matters that a court must consider under s 75(2) …” (at [35(d)]).
[39]Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at [115]; Tahiri v Minister for Immigration and Citizenship (2012) 293 ALR 526 at [21].
We accept the submission that these findings are unsustainable in the light of the subject statutory provisions. Also, both sections make specific reference to “financial resources”, a matter not addressed by the husband’s expert
Ms H.
The conclusion that his Honour was led into error in this respect is fortified when regard is had to the oral submissions of the husband’s counsel which included “I don’t imagine it’s a matter of dispute … there is nothing to suggest that the Singapore court is going to take into account matters such as financial resources”.[40] That submission appears one not open in the light of the full text of the subject statutory provisions.
[40]Transcript 16 January 2019, p.6 lines 13–15.
Determining the materiality of the subject error to the primary judge’s determination is problematic. The primary judge states:
24.To my mind, one of the more important questions is the extent to which Singaporean family law and Australian family law is different. That was important because it bore on the question of which court could most exhaustively and comprehensively determine the issues between the parties.
After proceeding to make a series of findings as to the law in Singapore by reference to the evidence of Ms H the primary judge records the following:
30.Without descending to the precise details of the information about Singaporean law as set out in those two sources by Ms H, several things must be said about the interaction between Singaporean family law and its application to the facts of this case. In no special order those matters include the following –
a)the procedure set out in s 112(10) of the Singaporean Women’s Charter, as recorded in paragraph 11 of the first report of Ms H has certain superficial parallels to s 79(4) of the Family Law Act yet no equivalent to s 75(2) appears to be relevant in Singapore whereas in Australia, s 75(2) factors are critical to property division cases;
b)in Singapore s 112(2) of the Women’s Charter has a parallel to s 79 of the Family Law Act in that a threshold issue is whether the division is just and equitable, but under s 79(4) of the Family Law Act the fact-specific enquiry is significantly more sophisticated and intricate;
c)s 114(2) of the Women’s Charter has at its aim placing the parties in the financial position as if the marriage had not broken down whereas that is not a legislative imperative under the Family Law Act;
d)periods of marriage as well as periods of cohabitation unmarried are taken into account in Australian family law, a seemingly different regime to that encompassed by s 112(2) of the Women’s Charter, as explained at paragraph 19 of the Ms H first report;
e)the observations in paragraphs 30, 31 and 32 of the Ms H report about extreme and undisputed conduct is not the law of Australia, as I surveyed in Keskin & Keskin.
(As per the original) (Footnotes omitted)
However, the reasons for judgment do not explain to what extent the comparison undertaken by his Honour, or more particularly the differences found to exist by his Honour between the two jurisdictions, factored into the ultimate determination. In expressing his conclusions the primary judge observed:
64.Self-evidently, it is undesirable for a proceeding to be on foot in Singapore in which the precise subject matter is being addressed as is being addressed in this court. The financial cost, personal toll to the litigants and inconvenience, to say nothing of the risk of inconsistent decisions of the two courts is manifest. I raised this issue with [counsel for the husband] and [Queen’s Counsel for the wife] in debate on 16 January 2020.
…
66.In my view, in this case it cannot be said that the precise same litigation is on foot in Singapore as it is in this court. While true, the Singapore court has power to grant orders in personam against both parties. Yet those orders are likely to be of little utility having regard to the fact that the majority of the property is in Australia. Enforcing any orders made by the Singapore court will be problematic in Australia whereas an order of this court is enforceable according to its terms without more.
67.It seems to me that even if all things were equal, and here they are not, the enforceability of orders of this court in respect of assets located in Australia renders this court the preferable forum over the court in Singapore.
It would appear, but it is far from clear, that the primary judge’s identification of differences may have found reflection in the statement at [67] that “[i]t seems to me that even if all things were equal, and here they are not …” However, in our judgment that falls short of a discernible path of reasoning disclosing how the differences identified by the primary judge were in fact factored into the determination made. Absent reasons positively expressing that the subject facts were not relevant, it can only be assumed that the erroneous facts were material in the determination.
Misdirection in the exercise of discretion (Ground 3)
The principles to be applied in determining forum non conveniens are well settled. They are set down by the High Court of Australia in Oceanic Sun Line Special Shipping Co Inc v Fay[41] and Voth v Manildra Flour Mills Pty Ltd[42] as explained in the context of family law litigation in Henry.
[41](1988) 165 CLR 197 (“Oceanic”).
[42](1990) 171 CLR 538 (“Voth”).
Whether or not Australia is a clearly inappropriate forum depends on an assessment of the following non-exhaustive factors (derived from Lord Goth’s factors in Spiliada) as approved of in Voth and as added to by Henry
(at 592–593):
a)Factors of convenience and expense, such as the location of witnesses;
b)Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing;
c)The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;
d)Whether the other potential forum will recognise Australian orders and vice-versa and the ease of enforcement in each country;
e)Which forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy;
f)The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;
g)The governing law of the dispute;
h)The place of residence of the parties;
i)The availability of an alternative forum; and
j)Any legitimate juridical advantage to litigating in either jurisdiction.
In this case the Court was called upon to determine whether continuation of the husband’s property application in the Australian proceedings would be “vexatious or oppressive” in the sense identified by the High Court of Australia in Voth before staying the Australian proceedings. In this regard, Deane J stated in Oceanic, which is adopted by the majority of the High Court in Voth, that:
… once it is accepted that the adjectives “oppressive” and “vexatious” are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings rather than the conduct of the plaintiff in continuing them, the continuation of proceedings in a tribunal which is a clearly inappropriate forum would, in the absence of exceptional circumstances being established by the plaintiff … be oppressive or vexatious to such a defendant if there is some available and appropriate tribunal in another country. Admittedly, that approach to the “vexatious” and “oppressive” test is less stringent and less rigid than would have been accepted in the nineteenth century. Under it, the applicable test pursuant to traditional principles can, in the ordinary case, properly be seen as an “inappropriate forum” test. It cannot, however, properly be seen as a “more appropriate forum” test since the mere fact that a tribunal in some other country would be a more appropriate forum for the particular proceeding does not necessarily mean that the local court is a clearly inappropriate one.
The High Court of Australia in Henry also said 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.
…
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 an unjustified trouble and harassment”. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.
(Footnote omitted)
In Navarro v Jurado[43] Thackray J observed:
29.… 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”.
(Footnote omitted)
[43](2010) 44 Fam LR 310.
In the present case these principles fell to be considered in the centrally important context that both parties sought that there be a continuation of the Singapore proceedings with respect to divorce, spousal maintenance, parenting issues and child support. The question was whether, in circumstances where those issues would continue to be litigated in Singapore, and property settlement proceedings were also on foot in Singapore, continuation of property settlement proceedings in Australia would be oppressive.
The primary judge erred in principle in determining the central question by ignoring or overlooking that the parties had resolved that the Singapore proceedings would continue with respect to the issues referred to.
The authorities make clear that it is not the requirement to strictly compare the two forums in an effort to decide which is the more appropriate forum. Here, the primary judge, on several occasions, appears to consider the central issue to be a direct comparison of the two countries’ family law procedures. The primary judge records:
24.To my mind, one of the more important questions is the extent to which Singaporean family law and Australian family law is different. That was important because it bore on the question of which court could most exhaustively and comprehensively determine the issues between the parties.
Whilst it is certainly true that one of the considerations is which forum can more comprehensively determine the issues between the parties, it is to be remembered from Voth at 558 that:
… such a decision neither turns upon an assessment of the comparative procedural or other claims of the foreign forum nor requires the formation of subjective views about … the merits of that forum’s legal system …
Paragraphs [30], [32] and [35] of the reasons illustrate the depth to which the primary judge descended in his comparison of the two countries’ legal systems, where his Honour identifies sections of the relevant Singaporean law before citing the section of s 79 of the Act which his Honour deems is the Australian equivalent. Indeed, at [35(d)] his Honour explicitly states:
under Singaporean law, no equivalent exists to the extensive array of matters that a court must consider under s 75(2) of the Family Law Act …
One legitimate purpose of comparing the law in each jurisdiction is to identify the existence of any juridical advantage to a party. Any juridical advantage so identified is one of the factors to be assessed. However it is not a legitimate purpose of such a comparison for a trial judge to thereby assess the comparative merits of the manner in which a case is determined as between the local and foreign tribunal. In this case the primary judge appears to give emphasis to his conclusions about the merits of Australian law in the manner in which property cases are determined, as compared to Singapore, rather than confining the consideration to one of effective dealing with the dispute arising from the breakdown of the parties’ marriage involving divorce, parenting issues, spousal maintenance and child support. We consider that to be an error of principle in the approach taken.
It can be seen that the primary judge’s conclusion was stated in the following terms:
66.In my view, in this case it cannot be said that the precise same litigation is on foot in Singapore as it is in this court. While true, the Singapore court has power to grant orders in personam against both parties. Yet those orders are likely to be of little utility having regard to the fact that the majority of the property is in Australia. Enforcing any orders made by the Singapore court will be problematic in Australia whereas an order of this court is enforceable according to its terms without more.
67.It seems to me that even if all things were equal, and here they are not, the enforceability of orders of this court in respect of assets located in Australia renders this court the preferable forum over the court in Singapore.
(Emphasis added)
It may be interpolated here that the primary judge does not explain the seeming internal inconsistency in his findings that “it cannot be said that the precise same litigation is on foot in Singapore as it is in this court” with his Honour’s conclusion that the wife ought be injuncted from continuing her proceedings in Singapore in any respect. That aside, it is clear from the authorities that the test of whether the same controversy is before each Court is not one that requires complete satisfaction that every aspect of the litigation is identical. As was said in Henry 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.
At [52] and [53] the primary judge recorded:
52.That said, in Henry v Henry the High Court intimated that cases of pure concurrent litigation in different forums between the same parties in which complete relief may be had in both forums may amount to vexation and oppression. Similar comments emerge from the decision in United Pacific Finance Pty Ltd v Tarrant and in Telesto Investments Ltd v UBS AG.
53.Accordingly, it seemed to me to be necessary to examine whether all issues could be ventilated in both the court in Singapore as well as in this court before it was possible to state whether “pure concurrent litigation in different forums exists” such that litigating both proceedings was vexatious and oppressive. According to Ms H the Singapore court has power to make in personam orders in relation to all assets constituting the property in this case, possibly with the exception of the inheritance of the half interest in the [wife’s] late father’s estate. Further, while Singapore’s legislation governing family law disputes involves a consideration of similar yet not identical concepts, in the assessment of the parties’ contributions (direct, indirect, financial and non-financial) s 79(4) of the Family Law Act seems to be more exhaustive than its Singaporean counterpart, especially in relation to s 79(4) and the incorporation of s 75(2) factors. That position is enhanced by the fact that any order that may be made by this court (assuming the [wife’s] stay application is refused) can only be enforced by separate proceeding. Conversely, this court has powers to enable a party to compel compliance with its orders. That is of particular relevance in relation to the Suburb C property because sale documentation will in all likelihood be involved and if one party, for example, refuses to execute relevant transactional documentation, this court can request a registrar to sign the necessary documentation.
(Footnotes omitted)
The term “pure concurrent litigation in different forums” appears nowhere in Henry and is not expressed to be a prerequisite to a finding of vexatiousness or oppressiveness.[44]
[44]See Henry at 587, 591–593.
As noted the primary judge recorded a conclusion that whilst the Singaporean court has power to grant orders in personam against both parties such orders:
66.… are likely to be of little utility having regard to the fact that the majority of the property is in Australia. Enforcing any orders made by the Singapore court will be problematic in Australia whereas an order of this court is enforceable according to its terms without more.
We consider that the primary judge erred in principle in concluding that orders in Singapore “are likely to be of little utility”. As was discussed in Pierson & Romilly[45] by reference to Kemeny v Kemeny[46] and Gilmore and Gilmore[47] s 78 of the Act allowing for declarations of interests in property is an available means of enforcement of foreign orders. Further, the effect of a final property settlement order of a court of competent jurisdiction was discussed in Caddy and Miller.[48]
[45](2020) FLC 93-959.
[46](1998) FLC 92-806.
[47](1993) FLC 92-353.
[48](1986) FLC 91-720.
The wife contends that the primary judge erred by having regard to irrelevant or immaterial considerations.
In the context of identifying differences in the law of Singapore as compared with Australia, and having referred (at [30(d)]) to the husband’s expert’s evidence about conduct, noting this not to be the law in Australia, the primary judge recorded it to be “utile to point up” how, since the decision in Kennon v Kennon[49] “family violence has been approached in property division cases” (at [31]).
[49](1997) FLC 92-757 (“Kennon”).
It is apparent that the wife was not advancing evidence about the husband’s conduct in the Singapore proceedings other than for the purpose of establishing grounds for divorce. The prospect of the wife mounting some Kennon type claim in property settlement proceedings was not identified in the written or oral submissions of either party as an issue that would require determination. Moreover if, as the primary judge appears to infer, the wife would have a juridical advantage in pursuing such a claim in Australia, as compared with Singapore, it was not an advantage the wife apparently sought to avail herself of, it being her position that property proceedings proceed in Singapore, and not Australia. The wife’s contention that this consideration was wholly irrelevant is well made. The reasons for judgment do not explain how this issue could have any possible relevance notwithstanding that the primary judge gave substantial consideration to it in the reasons.
To similar effect the wife contends that the primary judge’s focus upon the divorce was misdirected as it was not a relevant consideration. At [35(a)] the primary judge identified as the first of the “several critically important matters” concerning the comparison the primary judge made between the respective legal systems that “obtaining a divorce order in Singapore is more complex than it is in Australia”. As the wife points out, in circumstances where both parties had submitted, and were continuing to submit, to the Singapore court for the grant of a divorce which was, at the time of the hearing before the primary judge, imminent, it was irrelevant to the determination to consider this aspect.
It follows that we consider that these aspects of Ground 3 of the appeal have merit.
Ground 4
In support of his case the husband filed an affidavit of the solicitor representing him in the Singapore proceedings (Ms H) containing evidence as to the applicable law in Singapore.
The first point of emphasis in addressing this ground is that whilst Queen’s Counsel for the wife raised some objection before the primary judge concerning the affidavit of Ms H, there was no objection raised to the affidavit being admitted into evidence, nor indeed any precision as to any particular sentences or paragraphs of the affidavit to which objection was taken. Indeed, review of the transcript, as we will shortly refer to, reveals that not only was the form of any objection expressed in somewhat vague or imprecise terms, Queen’s Counsel for the wife sought to place reliance upon the affidavit in some respects in the course of submissions in advancing the wife’s case. We interpolate here that likewise, as earlier noted in addressing Ground 2 of this appeal, Queen’s Counsel for the wife places some emphasis on the content of this evidence on appeal.
Review of the transcript of the proceedings reveals that in raising objection before the primary judge Queen’s Counsel for the wife first made some reference to the terms of r 15.52 of the Family Law Rules 2004 (Cth) (“the FLR”), which sets out the requirements for a party seeking permission to adduce evidence from an expert witness. However, Queen’s Counsel’s reference to the FLR was not elevated to an objection based upon any asserted non-compliance with the relevant rule and was followed by these exchanges by Queen’s Counsel for the wife with the primary judge:
[QUEEN’S COUNSEL FOR THE WIFE]: … To some extent it’s a narrative of what the law is in Singapore and to that extent, your Honour, it’s probably unobjectionable. Where the objection is is where ..... descends into opinion as to what the court might do, how the court might act.
HIS HONOUR: In Singapore or here?
[QUEEN’S COUNSEL FOR THE WIFE]: In Singapore.
HIS HONOUR: Right.
[QUEEN’S COUNSEL FOR THE WIFE]: Now, your Honour, to the extent that it’s a narrative it’s probably quite helpful and it would be churlish to object to that aspect of it.
…
[QUEEN’S COUNSEL FOR THE WIFE]: Yes, your Honour, and really, as I say to your Honour, it’s probably there are aspects of this affidavit that would be helpful to your Honour just to understand because what [Ms
H] does is list the relevant section, talks about what the – what the – the powers of the court and specifically addresses issues that you raised with my learned friend, your Honour, as to whether or not the court in Singapore would deal with assets in Australia - - -HIS HONOUR: Yes.
[QUEEN’S COUNSEL FOR THE WIFE]: - - - and it’s quite clear that the – from this affidavit that the approach is the same as the approach that would be taken in this court. That is that your Honour could make an order in respect of in personam the parties’ interests in the property, but, of course, seeking to make a direct order in respect of a property in Australia is more difficult, same problem that would be faced in this court.
(Transcript 16 January 2020, p.15 line 34 to p.16 line 32) (As per the original)
Further in the exchanges the topic of the disputed debt to the wife’s parents company arose and in that context was the following:
[QUEEN’S COUNSEL FOR THE WIFE]: Yes. Alleged debt. And the question will be whether or not it’s a – the argument presumably will be whether it’s a debt, a gift or whether it has been forgiven or whether it’s simply a contribution on the part of the wife, but that’s - - -
HIS HONOUR: And does Singapore – as far as you can work out does the Singapore courts have power to deal with those issues?
[QUEEN’S COUNSEL FOR THE WIFE]: Yes, your Honour, and that’s set out in the affidavit on which my learned friend relies and which I’ve taken objection only to the - - -
HIS HONOUR: Yes.
[QUEEN’S COUNSEL FOR THE WIFE]: - - - only to the question of opinions on - - -
HIS HONOUR: I’m coming around to understanding now much better your contentions that there are aspects of that affidavit that might actually be quite useful.
[QUEEN’S COUNSEL FOR THE WIFE]: Yes, your Honour. Yes.
(Transcript 16 January 2020, p.18 lines 15–32) (As per the original)
As can be seen from these exchanges Queen’s Counsel for the wife placed reliance upon the expert evidence for the submissions made.
Shortly afterwards in the exchanges it appears that rather than any objection being taken to admissibility of any aspect of the expert evidence, the submission ultimately morphed into a contention as to the weight to be attached to the expert’s expressed opinions on some aspects, as seen in the following:
[QUEEN’S COUNSEL FOR THE WIFE]: … and my submission to your Honour is that to the extent that it is simply a narrative of the law in Singapore we take no objection.
HIS HONOUR: Okay.
[QUEEN’S COUNSEL FOR THE WIFE]: But to the extent that there’s opinions expressed as to what the court would do in this particular case - - -
HIS HONOUR: Yes.
[QUEEN’S COUNSEL FOR THE WIFE]: - - - your Honour should attach little weight to that.
(Transcript 16 January 2020, p.19 lines 1–11) (As per the original)
Thereafter Queen’s Counsel for the wife returned to reliance upon the expert evidence for the submission as to similarities between the approach taken in the respective fora:
[QUEEN’S COUNSEL FOR THE WIFE]: … and your Honour will see that to the extent that it’s possible there are remarkable similarities between the approach that the court would take …
(Transcript 16 January 2020, p.19 lines 26–27)
Again, in advancing submissions as to there existing but one controversy arising from the breakdown of the marital relationship Queen’s Counsel for the wife submitted:
[QUEEN’S COUNSEL FOR THE WIFE]: … whether there is in truth but one controversy and clear there is and the controversy arises from the marital relationship and it’s clear from the evidence that’s available, even to the extent that the – your Honour can rely on the affidavit of the solicitor in Singapore, that there is one controversy. The complete relief is available in the local jurisdiction, the local jurisdiction being Singapore, your Honour.
(Transcript 16 January 2020, p.26 lines 16–22)
In contrast to the complaints now advanced on appeal, there was no objection taken before the primary judge to the affidavit being admitted into evidence on any of the bases particularised in Ground 4(a) of the appeal, and no right of reply to the evidence was sought, nor was there any application before the primary judge to cross-examine the witness. As we have sought to demonstrate by the references to the transcript, such objection to the expert evidence as was mounted was vague and imprecise and arguably the objection crystallised not as an objection as to the admissibility of the evidence, but rather as to the weight to be given to some aspects of the opinions expressed as to how the Singaporean court would deal with this case.
In Smits v Roach[50] the High Court of Australia observed of the binding nature of the manner of conduct of civil litigation as follows:
46.The adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel and that counsel has a wide discretion as to the manner in which proceedings are conducted. The width of that discretion is reinforced by the role of the barrister as an officer of the court, by the barrister’s paramount duty to the court, and by the public interest in the efficiency and finality of the judicial processes. This was civil litigation. If Mr Lindsay had failed to object to inadmissible evidence in the course of the trial, the appellants would have been bound by the consequences, and there would have been no inquiry by an appellate court as to whether that had occurred for a good reason, or with the approval of the clients. Indeed, such an inquiry would normally be impossible. Similarly, if Mr Lindsay had decided not to pursue a certain line of argument, or press a possible point of law, the appellants could not have complained to an appellate court that he had failed to consult them about the matter. The respondents were not at risk of having a favourable decision set aside on the ground that, in some aspect (perhaps some very important aspect) of the conduct of the case, Mr Lindsay was acting without express instructions from his clients. That was because, in conducting the case on behalf of his clients, Mr Lindsay was exercising wide and independent discretion. If it were otherwise, any judgment in a civil case would be at risk of being set aside on the ground that counsel had acted in excess of authority, and the appellate process would be one of endless relitigation of contested issues.
(Footnote omitted) (Emphasis added)
[50](2006) 228 ALR 262 (“Smits v Roach”).
In argument of this ground, Queen’s Counsel for the wife agitated the proposition that, irrespective of any relevant failure to raise an objection to the expert evidence being admitted, the primary judge had an independent duty to exclude any irrelevant or inadmissible evidence and that the subject affidavit ought to have been wholly excluded pursuant to s 135 of the Evidence Act.
For that proposition counsel for the wife relied principally upon the decision of the Victorian Court of Appeal in Velkoski v The Queen,[51] a case in criminal law dealing with the admission of tendency evidence. In particular, our attention was directed to [199] and [200] as follows:
199.This mode of construction of “is not admissible” that adds the words “over objection” before the evidence becomes inadmissible is the subject of criticism by Odgers in Uniform Evidence Law in Victoria. This criticism appears to have some force. Research has not disclosed that this question has received any attention in this court. The Crown did not explicitly rely upon this construction, but the effect of its contention was that the failure to object deprived the applicant of the right to dispute its admissibility.
200.The decisions of another intermediate appellate court on the identical provision in uniform legislation must be given great weight, but in the absence of full and considered argument by this court, we would be reluctant to construe the term “is not admissible” in s 97 (and other provisions of the Evidence Act to the same effect) as meaning that the evidence was admissible in the absence of objection. For the reasons that follow, it is unnecessary that we express a concluded view as to this question.
(Footnote omitted)
[51](2014) 45 VR 680 (“Velkoski”).
The status of Velkoski as an authority on the admission of evidence may be open to some debate given that in Hughes v The Queen[52] the plurality of the High Court of Australia (Kiefel CJ, Bell, Keane & Edelman JJ) determined that in Velkoski the Victorian Court of Appeal had erroneously taken an unduly restrictive approach to the admission of tendency evidence in a criminal case. That aside, it can be seen from the quoted paragraphs of Velkoski that the Victorian Court of Appeal ultimately declined to express any concluded view on the point at issue here.
[52](2017) 263 CLR 338.
In criminal proceedings there is no doubt that a trial court may be obliged to act to ensure a fair trial, even in the absence of objection.[53]
[53]See, for example, R v Slack (2003) 139 A Crim R 314 at [37]; R v Lewis [2003] NSWCCA 180 at [68].
Similarly, although depending on the circumstances of a case, a court may provide general advice to a litigant in person that he/she has a right to object to inadmissible evidence and then to enquire whether he/she so objects.[54]
[54]Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [253(6)]; Su v Chang (1999) FLC 92-859 at [70]–[71]
However there is ample authority, in addition to that of the High Court in Smits v Roach, that in civil proceedings, where parties are represented, absence of objection at trial to the admissibility of evidence is determinative. For example, in Seltsam Pty Ltd v McGuiness[55] Spigelman CJ stated:
149.… In the ordinary course, the words “not admissible” in the Evidence Act, including in the opinion rule found in s 70 to which s 79 is an exception, means “not admissible over objection”, in accordance with the practice of the courts of which the parliament was aware when it passed the Evidence Act …[56]
[55](2000) 49 NSWLR 262.
[56]See also, City Elevator Services Pty Ltd v Burrows [2004] NSWCA 26 at [17]–[21] per Santow JA; Federal Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149 at [26]; WC v The Queen [2015] NSWCCA 52 at [20]; and Panayi v Deputy Commissioner of Taxation (2017) 319 FLR 228 at [39].
There was obvious non-compliance with the expert evidence rules expressed in Division 15.5.2 of the FLR. That non-compliance included non-compliance with the requirements of r 15.52 for permission to adduce evidence from an expert witness, other than a single expert. Notably, sub-paragraph (f) focuses attention upon the need to address the expertise of the proposed expert in the affidavit filed in support of the application. Sub-paragraph (g) focuses attention upon “any previous connection between the expert witness and the party” relevant here to the feature that the expert witness was in fact the husband’s lawyer in the Singapore proceedings. Moreover, the Application in an Appeal to adduce by way of further evidence the full terms of s 112 and s 114 of the relevant Singaporean legislation also gives force to the contention that not all relevant aspects of the applicable law in Singapore were identified or addressed by the expert, and thus brought to the attention of the primary judge.
However, none of the foregoing matters were pressed before the primary judge to mount an objection to receiving the evidence of this witness. The wife ought not be permitted on appeal to advance for the first time arguments not advanced before the primary judge.[57] Moreover, by reference to the authorities referred to we do not accept that the primary judge had some independent duty, absent any objection, to exclude the subject evidence. All the more that is so when it is readily apparent from a review of the transcript, as we have sought to demonstrate, that the wife herself placed significant reliance upon the expert evidence in advancing her case before the primary judge.
[57]Metwally v University of Wollongong (1985) 60 ALR 68.
We conclude that the primary judge was not under a separate duty to determine the admissibility of the expert evidence absent any objection being raised before the primary judge concerning the admissibility of that evidence.
As to the ultimate contention before the primary judge that his Honour ought not give weight (rather than objecting to admissibility) to any of the expert opinions as to how Singaporean law would apply to the facts of this case, the primary judge recorded the following:
35.The information given by Ms H was most helpful in this case and I have been assiduous to avoid reading those portions of the reports (where appearing in two letters) that applied the Singaporean law to the facts of this case…
We are not persuaded of any merit in Ground 4.
Insufficiency of reasons (Grounds 3 and 5)
We have in the foregoing discussion identified aspects of apparent deficiencies in the reasons of the primary judge which we need not repeat.
The primary judge’s reasons do not explain how it was legitimate, in the circumstances of this case, including that both parties sought that the Singapore court determine the issues of divorce, parenting issues, spousal maintenance and child support, to impose an anti-suit injunction in respect of the Singapore proceedings in their entirety. Moreover, the reasons do not engage with the question, assuming the Singapore proceedings are to proceed with respect to those issues as the parties intend, as to whether continuation of the Australian proceedings with respect to property settlement would be oppressive or vexatious in that important context.
The wife submits in her Summary of Argument filed on 24 July 2020 at paragraphs 80 and 81:
80.By way of overarching critique, much of the judgment is taken up with recitations of evidence and case law, not every aspect of which are directly germane to the decision before his Honour. In that regard the Kennon exegesis is particularly remarkable for its apparent lack of close relevance to the issues before the court. Similarly, although shorter, his Honour’s musings about grounds for divorce in the two jurisdictions were not relevant in circumstances where the parties were in agreement that divorce would be done in Singapore.
81.On page 7 at [24], his Honour foreshadows consideration of the “question of which court could most exhaustively and comprehensively determine the issues”. Yet, nowhere in the reasons does his Honour systematically analyse this issue, drawing together findings of fact to generate a stated conclusion one way or the other. Instead, the reader is left with deduction. See for example, page 36 at [53] that “s 79(4) of the Family Law Act seems to be more exhaustive than its Singaporean counterpart, especially in relation to s 79(4) and the incorporation of s 75(2) factors”.
(Footnotes omitted)
We accept the force of these submissions.
We find merit in the complaints concerning the adequacy of the primary judge’s reasons.
Re-exercise of discretion
The wife’s position on the question of whether this Court re-exercise the discretion, or remit the proceedings for rehearing, depended upon our resolution of the question of expert evidence. Queen’s Counsel argued that the evidence of the husband’s expert, Ms H, ought be wholly excluded. If that evidence is not so excluded the wife sought to have the opportunity to call evidence in response, including by expert evidence addressing the proper interpretation and application of s 112 and s 114 of the Women’s Charter (Singapore).
For his part counsel for the husband maintained the husband’s reliance upon the evidence of Ms H and submitted to the effect that the proper interpretation and application of s 112 and s 114 of the Women’s Charter (Singapore) in their full terms had not been addressed, and the husband would seek the opportunity to address those provisions.
We were advised that subsequent to the hearing before the primary judge a divorce has been granted in Singapore and of course other circumstances of the parties may have altered.
We are not satisfied that the evidence of Ms H ought be excluded and we accept that consequently both parties ought have the opportunity to address the question of expert evidence including by reference to s 112 and s 114 of the Women’s Charter (Singapore). The proceedings ought be remitted for rehearing for that purpose.
Given the bases upon which the appeal succeeds we do not consider it appropriate to make any order for costs under s 117 of the Act. Rather, each party ought be granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the appeal and for the rehearing.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Kent, Watts & Austin JJ) delivered on 10 March 2021.
Associate:
Date: 10 March 2021
5
42
0