Pagliotti and Hartner

[2008] FamCA 1037

FAMILY COURT OF AUSTRALIA

PAGLIOTTI & HARTNER [2008] FamCA 1037

FAMILY LAW – JURISDICTION – Proceedings taken in the Roman Tribunal – Res judicata

APPLICANT: Mr Pagliotti

RESPONDENT: Ms Harnter

FILE NUMBER: SYC 1883 of 2007

DATE DELIVERED: 20 June 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 4 & 5 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Oliver

SOLICITOR FOR THE APPLICANT: David Begg & Associates

COUNSEL FOR THE RESPONDENT: Ms Cohen

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

Orders

1. That the application of the husband, filed on 21 November 2007, is dismissed.     

IT IS NOTED that publication of this judgment under the pseudonym Pagliotti & Hartner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:       SYC 1883 of 2007

MR PAGLIOTTI

Applicant

And

MS HARTNER

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. By an application filed on 21 November 2007 the husband, Mr Pagliotti, sought a permanent stay of proceedings commenced on 15 March 2007 by the wife, Ms Hartner, pursuant to section 79 of the Family Law Act. The precise orders sought by the husband were as follows:

   “An order that the proceedings, save insofar as they continue proceedings […]/2006 commenced in the Supreme Court of New South Wales on 16 August 2006 and transferred to the Family Court of Australia by order of the Supreme Court pursuant to section 5(1) of the Jurisdiction of Courts (Cross-Vesting Act [1987] Cth on 30 April 2007, be permanently stayed.”

   This application was similar to an order sought by the husband in his response to an application for final orders filed on 27 July 2007.

2. The consequence of such an order would be that the husband could proceed with his application for a declaration that he holds a beneficial interest in real estate at B, of which the wife was the registered proprietor. The wife, on the other hand, would be prevented from continuing her proceedings pursuant to section 79 of the Family Law Act.

Background

1. The wife was born in January 1935 and is now 73 years of age.  The husband was born in April 1944 and is now 64 years old.  They married in November 1972, in Australia, and separated on 26 May 2002 while living in Italy.

2. At all relevant times the husband has been employed by the Italian government.  Due to his employment, the parties have lived at various times in Australia, Italy, and a number of other countries.

3. In May 2003 the husband commenced proceedings in the Ordinary Tribunal of Rome (referred to henceforth as “the Italian proceedings”), seeking an order for judicial separation and the attribution of matrimonial fault to the wife.  He sought an order to the effect that each party bear responsibility for his and her own maintenance.  The expert evidence indicated that orders for spouse maintenance are, fundamentally, the means by which an Italian court adjusts the financial positions of parties following a marriage breakdown.  There is no provision for distribution of property in specie, or for payment of lump sums, other than by agreement.

4. On 22 July 2003 the wife filed a counter-claim in the Italian proceedings. Inter alia, she sought to attribute fault to the husband and claimed periodic spouse maintenance.  

5. On 14 October 2003 the Roman Tribunal made orders which authorised the parties to live apart and required the husband to pay to the wife interim maintenance of €6,000 per month.  On 14 June 2004 the Tribunal reduced the husband’s maintenance obligation to €4,800 per month.

6. There were a number of appearances by both parties in the Italian proceedings over the course of the next two years, until the Roman Tribunal reserved its final decision in about October 2006.  Judgment was delivered on 11 January 2008, when the Tribunal declared a “personal separation of the spouses” and ordered that the husband pay maintenance to the wife of €4,800 per month.  The written reasons of the Tribunal indicate clearly that the financial circumstances of each of the parties were taken into account in assessing the quantum of spouse maintenance.  It was apparent that the Tribunal had regard to all of the property of the parties, whether situated in Italy or Australia, in reaching its decision.

7. The judgment of the Tribunal referred to certain assets of the wife in Australia in these terms:

   “…..[The wife] is the joint owner of the family home in Rome, has sold two of the three real estate properties that she owned in Australia, receiving $A1,244,600 and, as regards the third real estate property, the share of ownership is yet to be established given that [the husband] is claiming the 50% share of ownership.”

   This statement must be a reference to the husband’s Australian application in respect of the B property.

8. In September 2004 the wife returned to Sydney and took up residence in a home at B, of which she was the registered proprietor.  On 6 April 2006 the husband lodged a caveat on the title to this property, claiming “an equitable interest of the caveator arising out of financial and non-financial contributions to the property”.  The facts stated in the caveat to support his claim were that “the caveator contributed to the purchase price and made subsequent contributions to the maintenance of the property.”

9. On 26 July 2006 a lapsing notice in respect of the caveat was served on the husband.  In correspondence between solicitors during July and August 2006, the wife’s then solicitors invited the lawyers for the husband to commence proceedings for a declaration of trust as to his alleged interest in the B property.  On this basis, the wife’s then solicitors would recommend to her that she permit the caveat to remain on the title.

10. On 16 August 2006 the husband commenced proceedings in the Supreme Court of New South Wales, seeking a declaration that he holds a beneficial interest in the B property.  In February 2007 his application was summarily dismissed in the absence of his legal representatives.  Over the opposition of the wife’s lawyers, his application was restored to the list on 9 March 2007.  The wife served a defence to the husband’s claim in the Supreme Court on 19 March 2007.

11. In March 2007 the wife informed the husband that she wished to sell the B property, which had become difficult for her to manage due to health problems. She filed an application pursuant to section 79 in the Family Court of Australia on 15 March 2007. The principal order which she sought was for a payment to her of $5,000,000 by the husband. The wife also filed an interim application, seeking an order that the husband remove the caveat on the title to the B property.

12. On 30 April 2007 the Supreme Court proceedings were transferred to the Family Court, on the application of the husband and with the consent of the wife. The husband filed a response to the wife’s interim application on 1 May 2007.  Essentially, he agreed that the wife would sell the B property and purchase another home on certain conditions.  Consent orders to that effect were made by a Judicial Registrar on 1 May 2007, with certain undertakings being given by the wife.

13. On 27 July 2007 the husband filed a response to the application for final orders, in which he sought a permanent stay of the wife’s application.  This response was amended by a document filed on 27 November 2007.

14. The B property was sold in August 2007 for $3,005,000. The wife then purchased a home unit at H for $1,800,000. During the hearing before me it was foreshadowed that the husband will amend the relief which he seeks in light of these transactions. It was indicated that he will seek a declaration pursuant to section 78 of the Family Law Act.

15. The wife has lived in Sydney since 2004.  The husband lived in Rome until July 2004, when he was posted to another European country in the course of his employment. 

THE ARGUMENTS IN SUPPORT OF THE APPLICATION FOR A PERMANENT STAY OF THE WIFE’S SECTION 79 PROCEEDINGS

1. The submissions in support of the application for a permanent stay were presented in a written document and also orally by counsel for the husband.  The written submissions are intricate and detailed.  The material which now follows is by no means an exhaustive summary of these submissions; rather, it represents my attempt to understand the husband’s case.

2. The husband claims that he is able to proceed with the relief originally sought in relation to the B property in the Supreme Court of New South Wales, which is to be amended to an application for a declaration pursuant to section 78. On the other hand, it is alleged that the wife’s application pursuant to section 79 of the Family Law Act should be permanently stayed. It was stated in the written submissions that the husband “invokes the statutory jurisdiction of this court under section 78 of the Act”.

3. The submissions referred to “the ultimate issue on which the present application turns”, as being:

   “…..whether the wife’s Australian application is either or both:

   (a)oppressive, in the sense of ‘seriously and unfairly burdensome, prejudicial or damaging to the husband; and/or

   (b)vexatious, in the sense of ‘productive of serious and unjustified trouble and harassment’ to him.”

   This test is taken from the majority decision of the High Court in Henry and Henry [1996] CLR 571.  If the evidence fulfils either or both of these criteria, the wife’s application should be permanently stayed.

4. The submissions noted that circumstances have now progressed beyond a situation where parallel proceedings rendered Australia a clearly inappropriate forum.  The position now is that the matters sought to be agitated in the wife’s application must be regarded either as res judicata or such as would constitute an abuse of process, which would be restrained on the basis of the principles enunciated in Port of Melbourne Authority v Anshun Pty Limited [1981] 147 CLR 589.

The “Clearly Inappropriate Forum” Submissions

1. The submissions then referred to the decision of the majority of the High Court in Henry and Henry, where their Honours indicated what factors are relevant to the determination of a “clearly inappropriate forum” issue.    This list, which is not exhaustive, was as follows:

   1.No question arises unless the courts of the respective countries each have jurisdiction.

   2.Whether the courts of each country will recognise the other’s orders and decrees.

   3.The order in which proceedings were instituted, the stage reached and the costs incurred.

   4.The connection of the parties and their marriage with each of the jurisdictions and the issues on which relief may depend in those jurisdictions.

   5.Which forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy.

   6.Whether having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing.

   Their Honours stated that a determination as to a “clearly inappropriate forum” issue will “depend on the general circumstances of the case, taking into account the true nature and full extent of the issues involved”.  The submissions then proceeded to examine the evidence relevant to this list of considerations.

Whether the Courts of the Respective Countries have Jurisdiction with Respect to the Parties and the Marriage

1. It was said that the Roman Tribunal has matrimonial jurisdiction.  The Tribunal does not have jurisdiction to determine beneficial ownership of the B property or the proceeds of its sale.  These propositions are correct, according to the affidavit of Roberto Folchitto, the Italian lawyer for the husband.

2. It was conceded that the wife’s application is clearly a “matrimonial cause” for the purposes of Australian law, which means that this court has jurisdiction.  It is necessary, however, for personal jurisdiction over the parties to be established.  The husband’s appearances before this court have always been conditional, so it was said, and he has never submitted to its jurisdiction in respect of any dispute which is a “matrimonial cause”.  His appearance on 1 May 2007 was for the sole purpose of preserving his rights pending a determination as to jurisdiction. He has not waived the prior Italian jurisdiction.

3. It was submitted that the husband originally invoked the equitable jurisdiction of the Supreme Court for the limited purpose of determining whether he holds a beneficial interest in the B property.  An application for relief of this kind “is not a matrimonial cause in any generic sense” and falls to be determined in accordance with the general principles which apply in the case of parties who are not spouses.  It was said that the husband’s application “is not even self-evidently a matrimonial cause”, as defined in section 4(1), but the filing of the wife’s proceedings would bring it within the scope of section 4(1)(f).

4. It is not necessary for me to determine whether the husband’s application is a “matrimonial cause” for present purposes.  It does seem, however, that his application would fall within paragraph (ca) of section 4(1). In any event, it is clear that this court has jurisdiction to entertain the husband’s application pursuant to section 78 and the wife’s proceedings pursuant to section 79. The Italian courts have jurisdiction to make orders dealing with the financial consequences of the breakdown of a marriage, which take the form of spouse maintenance. There is no mechanism in Italian law for the determination of beneficial interests in the B property or the proceeds of its sale.

5. Whether Both Courts will Recognise Each Other’s Orders and Decrees

6. There was a large volume of expert evidence directed, inter alia, to the issue of whether an Italian Court would recognise and enforce an order of this court for payment of money by the husband to the wife.  Professor R provided evidence in the husband’s case and Professor A was the expert witness for the wife. 

7. The husband’s assets are all located in Italy, apart from any beneficial interest which he may have in the B property or the proceeds of its sale.  It was said that he has disputed jurisdiction in this court and so he would not be expected to comply with an order in personam, requiring that he pay money to the wife or transfer property to her in specie.

8. Professor R was of the opinion that there are substantial, if not total, barriers to enforcement by an Italian Court of an order for payment of money by the husband to the wife or for a transfer of property in specie.  Professor A formulated an argument to the effect that there was some prospect of enforcement of an Australian order for payment of money in Italy.

9. On behalf of the husband it was thus submitted that exercise of jurisdiction under section 79 by this court “would be largely futile”.  Accordingly, this court should refrain from exercising jurisdiction.

10. For reasons which appear below, however, I do not consider it necessary that I attempt to make any findings as to the prospects of enforcement by an Italian court of an order made in Australia for payment of money to the wife by the husband.  In essence, there exists the possibility of enforcement of any lump sum awarded to the wife against any interest which may be found to vest in the husband in the proceeds of sale of the B property.

11. The Order in Which the Proceedings were Instituted, the Stage Reached and the Costs Incurred

12. It was pointed out on behalf of the husband that the Italian proceedings were commenced in 2003 and concluded in January 2008.  The wife’s Australian proceedings were commenced on 15 March 2007 and have not, so far, reached the stage even of a conciliation conference.  The Italian proceedings have cost the husband €10,500 and there was no evidence as to legal fees paid by the wife. 

13. The reality is that the husband intends to proceed with his application in respect of the proceeds of sale of the B property.  He can pursue this relief only in Australia.  It is thus inevitable that litigation will proceed in Australia and that both parties will incur further costs.

14. The Connections of the Parties and Their Marriage with each of the Jurisdictions and the Issues on which Relief they Depend in each of those Jurisdictions

15. The husband is an Italian citizen whose employment has meant that he has lived outside Italy periodically, although he has always maintained a permanent home in that country.  The wife migrated to Australia from Europe in 1949, when she was 14 years old.  She lived in Australia until 1975 and then moved to the United States with the husband.  During her period of residence in Australia the wife bought and sold several pieces of real estate.

16. The parties have maintained a matrimonial home in Rome since 1985 and they lived in Italy from 1979 until 1982 and from 1999 until their separation.  There was no evidence of any assets which could be utilised to satisfy an order of an Australian Court outside of Italy, other than the B property in which the husband claims a beneficial interest.

17. Emphasis was placed on the fact that the wife declared her place of residence to be Rome in the Italian proceedings on 22 July 2003.  Similarly, it was pointed out that the official records of the Municipality of Rome show that she emigrated to Sydney on 9 July 2007 (affidavit of Roberto Folchitto paragraphs 39 and 41).

18. It seems to me that the parties and their marriage have close connections to both Italy and Australia.  Most significantly for present purposes, however, the property in which the husband claims a beneficial interest is located in Australia and the wife, the owner at law of that property, is a permanent resident of this country.  The husband can only pursue his claim in this jurisdiction.

19. Whether, Having Regard to their Resources and Understanding of Language, the Parties are able to Participate in the Respective Proceedings on an Equal Footing

20. On behalf of the husband it was submitted that language is a neutral consideration, as each of the parties is fluent in both Italian and English.  As well, they have each been fully legally represented at all times in both sets of proceedings.  This factor is, indeed, “neutral” for present purposes.

21. Which Forum can Provide More Effectively for Complete Resolution of the Matters Involved in the Parties’ Controversy

22. On behalf of the husband it was submitted that the Roman Tribunal not only can more effectively resolve all matters which the wife’s application now seeks to put in issue, but it has done so on a final basis.  Both expert witnesses recognised that the financial adjustment between the parties, consequent on the breakdown of their marriage, was fully contained within the Italian proceedings.  It was submitted that it is erroneous on the part of the wife to characterise the Italian orders as being “in relation to spouse maintenance orders only”.  I agree with this submission.

23. It was said that Italian law does not permit the property of one spouse to be distributed in specie, other than by consent.  It is thus the case that the entirety of the parties’ financial resources, including individual property, was taken into account in determining the quantum of spouse maintenance.  The fact that the outcome in the Roman Tribunal does not include orders of a kind unknown to Italian law does not detract from the completeness of its determination of the whole controversy between the parties.

24. It is significant, in my view, that the judgment of the Roman Tribunal recorded that ownership of the B property is yet to be determined.  It seems to me that this statement was a clear recognition that proceedings in Australia were necessary to resolve that issue.  That aspect of the controversy between the parties thus remained undetermined at the end of the Italian proceedings.

1. The Submissions on the Res Judicata and Anshun Estoppel

2. The submissions on behalf of the husband emphasised statements by the majority of the High Court in Henry and Henry that the marital relationship itself lies at the heart of all disputes between spouses as to their matrimonial status.  Differences in procedure, available remedies and substantive law do not mean that two distinct controversies exist.  It was said that these statements have important implications for the question whether the wife’s Australian proceedings must be regarded as res judicata.  The submissions then proceeded to address the issues of res judicata and Anshun estoppel.

3. It was submitted that the majority view in Henry and Henry suggests that the correct approach is to focus on the substance of the two proceedings, as distinct from their form, in order to determine whether they are brought in the same cause of action.  It appears that the High Court majority implicitly confirmed that this is the correct approach when what falls for determination is whether the proceedings sought to be agitated as a “matrimonial cause”, in accordance with the definition in the Family Law Act, are either res judicata or precluded by issue estoppel or “abusive” or “oppressive” in the Anshun sense or have been commenced in a clearly inappropriate forum and are hence liable to a discretionary stay.

4. Attention was drawn to the fact that Australian law dictates that a final determination of spouse maintenance can be made only following a final determination of spouses’ property interests:  Clausen and Clausen [1995] 18 FamLR 693.  It was said that there are thus two alternatives for an Australian court faced with the fact of a final determination of spouse maintenance by a foreign court, which is inseverable from its judicial assessment of the individual financial resources of the parties and in which adjustment of property in specie is not possible.

5. The first alternative is to treat the foreign court’s determination of the question of spouse maintenance as a factor to be taken into account in the adjustment of the parties’ property rights.  This approach would reverse the order of steps described by the Full Court of the Family Court of Australia in Clausen as mandated by statute.

6. It seems to me that this submission falls into the trap of categorising the outcome of the Italian proceedings as a bare order for spouse maintenance, rather than a financial adjustment consequent upon the breakdown of the parties’ marriage and having regard to the totality of their assets and liabilities.  On behalf of the husband it was contended that the submissions on behalf of the wife were erroneous in so categorising the orders of the Roman Tribunal.  I agree and, accordingly, I am not of the view that this argument assists the husband for present purposes.

7. The second alternative available to an Australian court would be to ignore the determination of the foreign tribunal and proceed to redetermine in its entirety a matrimonial cause which is res judicata in the foreign jurisdiction.  Any judgment of an Australian court arrived at in these circumstances may well prove to be “a mere brutum fulmen”.  

8. It was then said that, if the property rights of the parties are not strictly res judicata, as a matter of discretion the section 79 application should be found to be “oppressive” and “vexatious” to the husband in the Henry and Henry

9. sense.  The real practical effect of permitting the wife to re-agitate matters already the subject of judicial assessment by a foreign court would be allow her to re-open her election to submit to the jurisdiction of the Roman Tribunal.  She chose to submit her dispute to the Tribunal, thus any rights she may have had to pursue relief in an Australian court must have merged in the Italian proceedings.

10. It was said that the wife was content to submit to the determination of an Italian court at every stage until the husband commenced his application in Australia.  As such, it is reasonable to view her application as retaliatory and a procedure designed to “shake off” his claim to the B property. The wife’s application pursuant to section 79 is thus “manifestly vexatious”.

CONSIDERATION AND CONCLUSION

1. The husband has invoked the jurisdiction of this court and seeks relief pursuant to section 78 of the Act. The wife seeks relief pursuant to section 79. The court has available to it all of the jurisdiction and powers conferred by the Family Law Act 1975. It is then necessary to consider whether the wife’s application should be permanently stayed, on any basis argued on behalf of the husband. I am not sure why the same considerations would not apply to his application pursuant to section 78 but there was no such argument before me.

Is Australia a “Clearly Inappropriate Forum” Within the Henry and Henry Test?

1. In my view there is no doubt that both the Italian and Australian courts have jurisdiction. The Roman Tribunal has, in fact, exercised its jurisdiction and made final orders. The husband has invoked the jurisdiction of the Family Court of Australia, and concedes that this court has jurisdiction in respect of the wife’s proceedings pursuant to section 79.

2. I can see no difficulty with this court’s having personal jurisdiction over the husband. He has invoked its jurisdiction and is actively pursuing relief.  He cannot seek orders for his own benefit, on the one hand, and claim that his appearances have always been conditional on the other hand.  In other words, he cannot make a conditional appearance to seek his own relief.

3. In my opinion it is not necessary that I make a determination as to whether an Italian court would enforce an order for payment of money to the wife by the husband. He claims a beneficial interest as to 50% of the proceeds of sale of the wife’s B property. Any declaration of a beneficial interest in that money which he may obtain, as a result of his own application, would constitute property against which the wife could enforce an order for payment of cash to her. These prospective circumstances suggest that the exercise by this court of jurisdiction pursuant to section 79 would not be “largely futile”, as claimed on behalf of the husband.

4. It is true that the Italian proceedings have been completed and that the parties have incurred quite substantial costs, if the quantum of the husband’s legal fees is any indication.  The fact is, however, that the Roman Tribunal cannot determine the issue of beneficial ownership of the proceeds of sale of the B property and further proceedings and costs are inevitable.

5. On the question of the connection of the parties and their marriage to Australia, little more needs to be said.  The parties were married in Australia and the wife has a history of real estate transactions in this country, culminating in her acquisition of the B property.  The asset which is the subject of the husband’s application is located in Australia. The wife’s permanent place of residence is now Sydney.

6. Each of the parties is fluent in both Italian and English, thus language is no impediment to proceedings in Australia.  Both the husband and the wife have legal representation in each country and are thus on an equal footing in this regard as well.

7. The Italian proceedings took into account all of the property of each of the parties in assessing the quantum of spouse maintenance payable to the wife.  Curiously though, the judgment of the Roman Tribunal recorded that ownership of the B property “is yet to be established”.  There is no mechanism by which the parties’ respective interests in that property can be determined pursuant to Italian law.  The only forum in which such interests can be determined is Australia and, in fact, this is the very relief which the husband seeks.

8. It can hardly be said that the wife’s application pursuant to section 79 has been brought in a clearly inappropriate forum if the husband’s proceedings are properly in this court. There are available to this court powers which extend beyond section 78 and can be utilised to determine the beneficial interests of the parties in the proceeds of sale of the B property. The husband seeks a declaration that he holds a beneficial interest of 50% and, implicitly, the wife’s application means that she asserts that she holds a beneficial interest of 100% in the net sale proceeds. I do not see how the section 79 application could be categorised as “oppressive” or “vexatious” to the husband, as those terms were used by the majority in Henry and Henry. 

9. In reality, the issue as to whether Australia is a clearly inappropriate forum has been overtaken by recent events, specifically the final orders of the Roman Tribunal.  There are no longer two parallel sets of proceedings in Italy and Australia, as the Italian litigation has been concluded.  It is thus a question of whether the wife’s application is to be regarded as res judicata or which constitutes an abuse of process such that should be restrained by Anshun estoppel.

The Res Judicata Issue

1. The next question is whether the judgment of the Roman Tribunal renders the wife’s application pursuant to section 79 res judicata. Again, I am not sure why the same should not be said of the husband’s application pursuant to section 78, if the initial proposition is correct.

2. It seems to be true that the Italian proceedings culminated in orders which dealt with the whole of the financial consequences of the breakdown of the parties’ marriage.  It was common ground that an order for spouse maintenance is the vehicle by which an Italian court deals with financial adjustment between parties, following on the breakdown of their marriage.  There is no provision in Italian law for distribution of property in specie, other than by agreement of the parties.

3. The question of beneficial ownership of the proceeds of sale of the B property was not determined in the Italian proceedings, as the Tribunal lacked jurisdiction to do so. To my mind, that issue is distinct from the subject matter of the Italian proceedings. An integral part of the wife’s application pursuant to section 79 is that she retain 100% of legal and beneficial entitlement to the proceeds of sale of the B property. The husband seeks a declaration that he holds a 50% beneficial interest. This issue is a controversy which was not agitated nor resolved in the Italian proceedings, as the Tribunal was without jurisdiction in this regard. Accordingly, I am of the view that the wife’s section 79 application is not res judicata.

4. There remains for determination the question whether the wife’s application should be permanently stayed on the basis of the principles set out in Port of Melbourne Authority v Anshun Pty Limited [1981] 147 CLR 589.  In my view this authority does not assist the application for a permanent stay.

5. It could not be considered unreasonable that the issue of beneficial ownership of the B property, or the proceeds of its sale, was not raised in the Italian proceedings.  As noted, the Roman Tribunal lacked jurisdiction to determine that question.  That issue is raised in the Australian proceedings directly by the husband and, by necessary implication by the wife.  In other words, it was not open to either party to agitate this issue in the Italian proceedings.

6. In my view, a judgment in the Australian proceedings would not conflict with the orders of the Roman Tribunal.  I do not agree with the submission on behalf of the wife that the Italian proceedings dealt only with the issue of spouse maintenance.  At the same time, those proceedings could and did not deal with the question of beneficial ownership of the B property, which is now squarely before this court.

7. For these reasons, I dismiss the application of the husband for a permanent stay of the wife’s proceedings pursuant to section 79 of the Family Law Act.

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              20 June 2008