Pagett & Pagett

[2021] FamCA 533

FAMILY COURT OF AUSTRALIA

Pagett & Pagett [2021] FamCA 533

File number(s):	BRC 14097 of 2019
Judgment of:	GILL J
Date of judgment:	21 July 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Whether Australia is a clearly inappropriate forum for the resolution of divorce proceedings – Concurrent divorce proceedings in Australia and Hong Kong – Australia not a clearly inappropriate forum – Parties restrained from continuing Hong Kong divorce proceedings – Transfer of child related proceedings to the Federal Circuit Court.
Number of paragraphs:	7
Date of hearing:	21 July 2021
Place:	Canberra
Solicitor for the Applicant:	Michael Lynch Family Lawyers
Solicitor for the Respondent:	Self-representing

ORDERS

BRC 14097 of 2019

BETWEEN:

MR PAGETT

Applicant

AND:

MS PAGETT

Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	21 JULY 2021

THE COURT ORDERS THAT:

1.I declare that Australia is not a clearly inappropriate forum for the conduct of the divorce proceedings between the parties.

2.Each of the parties is restrained by injunction from taking any further step to progress the divorce proceedings in Hong Kong. 

3.The divorce proceedings in Australia are listed before a Registrar on a date to be advised.

4.The child-related proceedings in this matter are transferred to the Federal Circuit Court of Australia to be listed before a Registrar on a date to be advised.

5.The wife is directed to file and serve an updated Notice of Address for Service within seven days of today's date.

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pagett & Pagett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

DIVORCE PROCEEDINGS

1. This case was listed before me on the basis that there is a contest as to the forum for the resolution of divorce proceedings between the parties. 

2. Divorce proceedings are currently on foot in Hong Kong, where the parties previously lived.  However, the parties have now each moved to Australia and in November 2019 the husband has initiated divorce proceedings in Australia.  As a result of this there are parallel divorce proceedings on foot in both Hong Kong and Australia, despite the parties, and I note also their children, now being resident within Australia.  Each of the parties, however, has now advised me that they would consent to an order being made which prohibited them from progressing any divorce proceedings in Hong Kong.  They consent to such an order being made on the basis that both of the parties regard that Australia is not a clearly inappropriate forum for dealing with their divorce proceedings.  It is the case that each of them wishes to be divorced and each of them is content for the proceedings to take place in Australia, being the country in which they now live. 

3. Given their common residence in Australia, and given their agreement that Australia is an appropriate place to hear the proceedings, and their mutual desire that the proceedings be dealt with here, it is a conclusion readily reached that in terms of divorce proceedings between the parties Australia is not a clearly inappropriate forum. 

   CHILDREN’S PROCEEDINGS

4. In these proceedings in relation to the children it is conceded by the husband that the issues in dispute between the parties are the sorts of issues that may be dealt with by the Federal Circuit Court. 

5. The mother has identified that the particular issues of concern to her are the emotional and mental welfare of their children, issues relating to substance abuse and allegations that the husband has physically abused the children. 

6. Having assessed the matters that have been identified by the parties it seems to me that these are matters well within what would typically be dealt with by the Federal Circuit Court rather than the Family Court of Australia.  Accordingly orders will be made for the transfer of the proceedings to the Federal Circuit Court. 

7. The mother has indicated that she would like some legal advice in relation to this particular issue.  I have noted to her that if I am wrong about the level of complexity that attaches to this case then she will be at liberty to seek a restoration of the matter to the Family Court of Australia should that be necessary to do so.  That is, I have advised her that this step of transfer does not foreclose prospects of transfer back to the Family Court if that is indeed indicated. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       21 July 2021