Park & Byon

[2003] FamCA 121

[2003] FamCA 121

FAMILY LAW ACT 1975

IN THE FULL COURT     
OF THE FAMILY COURT OF AUSTRALIA              Appeal No EA 104 of 2001
AT SYDNEY  File No  SY 2340 of 2000

BETWEEN:

P

Appellant Wife

- and -

B

Respondent Husband

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  Finn, Holden and Barlow JJ
DATE OF HEARING:             9 April 2002
DATE OF JUDGMENT:          28 February 2003

APPEARANCES:

Mr Strikis, Solicitor and Public Notary appeared on behalf of the Appellant Wife.

Mr Jackson of Queen’s Counsel with Mr Harding of Counsel (instructed by Young Kim Lawyers) appeared on behalf of the Respondent Husband.

Matter:  P & B
Appeal Number:          EA 104 of 2001
File Number:               SY 2340 of 2000
Coram:  Finn, Holden and Barlow JJ
Date of Hearing:           9 April 2002
Date of Judgment:        28 February 2003

Trial Judge sought to be appealed:          Cohen J

Date of orders sought to be appealed:      15 November 2001

Catchwords:

DOMICILE – as a basis for invoking the jurisdiction of the Court in proceedings for dissolution: see Family Law Act 1975, s 39(3) – as to the test of intention to acquire a domicile of choice: see Domicile Act 1982, s.10 - Ferrier-Watson v McElrath (2000) FLC 93-002

JURISDICTION – whether the trial Judge erred, in the exercise of discretion, in refusing to stay the Australian dissolution proceedings instituted by the husband - Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 - Henry v Henry (1995-1996) 185 CLR 571 (affirmed in Regie National des Usines Renault SA v Zhang (2002) 187 ALR 1)

Application for leave to appeal dismissed.
Application to adduce further evidence allowed in part.

1. This is an application by the wife, Ms P, for leave to appeal orders made by Cohen J on 15 November 2001.  The content of those orders will be better understood if we first set out the history of this matter.

1. On 24 January 2000, the husband, Mr B, filed in the Family Court of Australia an application for dissolution of his marriage to the wife.  According to the husband’s application, he and the wife had been married in South Korea in September 1975, and they had separated on 5 January 1991.

1. In his application, the husband stated that he regarded Australia as his home and that he intended to live indefinitely in Australia. It is thus clear, having regard to s 39(3) of the Family Law Act 1975 (“the Act”), that the husband was relying on a domicile in Australia to found jurisdiction for his application for dissolution of his marriage to the wife (whose address was shown on the husband’s application as being in South Korea). Section 39(3) provides:

   Proceedings for a decree of dissolution of marriage may be instituted under this Act if, at the date on which the application for the decree is filed in a court, either party to the marriage - 

   (a)      is an Australian citizen; 
   (b)      is domiciled in Australia; or 

   (c)is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.

1. On 23 March 2000, the wife filed a “Response objecting to jurisdiction”.  In answer to the question on that form as to the facts relied on “to say the Court has no jurisdiction to hear the application”, the wife stated that neither party was “an Australian citizen”; that neither was “ordinarily resident in Australia”; that neither was “resident in Australia for one year immediately preceding” the date on which the application was filed; and that she was domiciled in South Korea (paragraphs 6.1 - 6.7).  In addition, and importantly for present purposes, she asserted that the husband was not domiciled in Australia and she set out certain “particulars” in support of this assertion (paragraph 6.8).  She then made the following assertions:

   6.9.The husband has previously applied to the Family Court of Korea for a divorce, but that application was refused.  That application was refused on the facts of the case and not for any lack of jurisdiction in the Korean court.  The present application is a fabricated attempt to evade the consequences of the Korean court’s decision.

1. On 29 March 2000, the husband filed an affidavit (sworn 28 March 2000) which was presumably in reply to the claims made by the wife in her Response objecting to jurisdiction, in which he explained his connection with Australia.  Included in that affidavit was the following statement:

   12.I consider Australia to be my permanent place of residence. I regard Australia as my home and I intend to remain in Australia indefinitely.

1. It seems that at some stage the husband’s application for dissolution of marriage and/or the wife’s Response objecting to jurisdiction came before Judicial Registrar Johnston, and that on 11 August 2000, the Judicial Registrar published a judgment in which he found that the husband was domiciled in Australia at the time of filing his application for dissolution of marriage.

1. On 28 November 2000, the Judicial Registrar heard an application on behalf of the wife that the husband’s application for dissolution of marriage should be permanently stayed.  It is not clear whether this was an application made orally to the Judicial Registrar or whether it was treated as arising out of paragraph 6.9 of the wife’s Response objecting to jurisdiction.  But whatever was the form of that application by the wife, on 21 December 2000 the Judicial Registrar granted it and made an order permanently staying the husband’s application for dissolution of marriage.

1. On 19 January 2001, the husband filed an application to review the Judicial Registrar’s order of 21 December 2000 permanently staying the husband’s application for dissolution of marriage.  In his review application, the husband sought the following orders:

   1.That the husband’s application for dissolution of marriage between himself and [Ms P] on … September 1975 (‘the marriage’) be entertained in this Court.

   2.A decree nisi be granted in respect of the marriage.

1. The husband’s application to review the Judicial Registrar’s decision to stay permanently the husband’s application for dissolution of marriage came before Cohen J for hearing on 2 November 2001.  There was an initial discussion between his Honour and the legal representatives of the parties as to whether (in addition to the issue of the stay), the issue of the husband’s domicile was also before his Honour, given that neither party had sought to review the Judicial Registrar’s finding that the husband was domiciled in Australia.

1. Ultimately, it seems to have been agreed that because an application to review the decision of a judicial registrar is a hearing de novo, the case would proceed on the basis that both the issue of the husband’s domicile and the issue of the stay were to be determined by his Honour.  It is unnecessary for us to determine whether that approach was in fact correct.

1. In a judgment published on 15 November 2001, Cohen J found that the husband was domiciled in Australia on 24 January 2000, the date on which his application for dissolution of marriage was filed (paragraph 18).  His Honour also concluded that he was not satisfied that the Court was “a clearly inappropriate one in which to entertain the husband’s application for dissolution” (paragraph 47).  His Honour then made the following orders:

   1.That it is declared that on 24 January 2000 the husband was domiciled in Australia.

   2.That the wife’s Response objecting to jurisdiction filed 23 March 2000 is hereby dismissed.

   3.That time for the wife to file any response to the husband’s application filed 24 January 2000 is extended to 42 days from the date of these orders.

   4.That costs are reserved for one month.

The application for leave to appeal and the appeal by the wife

1. On 11 December 2001, the wife filed a Notice of Appeal against all orders made by Cohen J on 15 November 2001.  In the event that the appeal was successful, the wife sought an order that the husband’s application for dissolution of marriage be permanently stayed.

1. When the appeal came before us for hearing, we understood it to be accepted by both Counsel that the better view must be that the orders which the wife had purported to appeal were interlocutory orders, and as such, leave to appeal was necessary.  We understood Counsel for the wife to submit that the basis of the application for leave to appeal would be errors of principle on the part of Cohen J.  

1. While Senior Counsel for the husband made it clear that he would oppose the grant of leave to appeal, he did not oppose the wife being granted leave to make an application for leave to appeal out of time.  Nor did he oppose the Court proceeding to hear both the application for leave and the appeal together.  Accordingly, this was the course which we adopted.

1. The wife’s appeal was directed both to Cohen J’s finding that the husband was domiciled in Australia and also to his Honour’s refusal to stay the husband’s application for dissolution.  Although Counsel for the wife addressed us first in relation to the stay issue, we propose to consider first the issue of the husband’s domicile.

The domicile of the husband

1. The first two grounds as well as the fifth ground contained in the wife’s Notice of Appeal are directed to Cohen J’s order declaring the husband to be domiciled in Australia.

1. Ground 1, in the amended form in which it was argued, is as follows:

   The trial judge made an error of law in that, without making a decree nisi dissolving the marriage, His Honour made a declaration as to (the husband’s) domicile, but there is no provision in the Family Law Act 1975 empowering the making of declarations as to domicile unless a decree nisi is granted at the same time.

1. Having found earlier in his judgment (paragraph 18) that the husband was domiciled in Australia on the date that his application for dissolution of marriage was filed (24 January 2000), his Honour made the following statement at the conclusion of his judgment:

   48.I note the provisions of O.7 r.10(b) and shall give the wife 42 days to file any response to the husband’s Application for Divorce filed 24 January 2000.  As domicile and jurisdiction have now been determined between the parties, the wife’s response will not be able to dispute those issues.  It is appropriate, in the circumstances, to make a declaration that the husband was domiciled in Australia at the relevant time and to dismiss the wife’s objection to jurisdiction.

1. His Honour’s reference to “O.7 r.10(b)” is a reference to the following provision in Order 7 of the Family Law Rules:

   10      A respondent to an application [for dissolution of marriage] must file a response, or a response objecting to jurisdiction, within: 

   (a)      if the respondent is served in Australia - 28 days; or 
   (b)      if the respondent is served outside Australia - 42 days; 

   after the day on which the application is served on the respondent.

1. We agree with the assertion contained in Ground 1 and also in the supporting submissions made by Counsel for the wife, that there is no express provision in the Act which would empower the Court to make a declaration of domicile in the circumstances in which it was made in this case. (See Ferrier-Watson v McElrath (2000) FLC 93-002 per Finn J at [40]).

1. We do not agree with the submission of Counsel for the husband that such a power can be found in s 113 of the Act, which provides:

   113In proceedings of the kind referred to in paragraph (b) of the definition of ''matrimonial cause '' in sub-section 4(1), the court may make such declaration as is justified.

1. Paragraph (b) of the definition of “matrimonial cause” only refers to “proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage” (emphasis added). Thus s 113 would have no application in the present case where no declaration of validity of a marriage, or of a dissolution of marriage, or of an annulment, is sought.

1. However, we do not consider that anything turns on the conclusion that there was no express power to make the actual declaration of domicile made in this case.  We take this view because as we mentioned in paragraph 10 above, both parties agreed that his Honour should make a determination concerning the husband’s domicile (even though neither party had sought to review the Judicial Registrar’s decision in relation to that matter).  Further, as Counsel for the wife also conceded in his written submissions to us, having regard to the provisions of Order 7 r.9(3) of the Family Law Rules, his Honour acted correctly in not proceeding to grant a decree nisi, but rather making the order (Order 3) which he did extending the time for the wife to file a Response. (See paragraph 11 above).  Order 7 r. 9(3) provides:

   If the court overrules an objection to its jurisdiction, the court must give directions in relation to the further conduct of the proceedings.

1. We thus conclude that there is no substance in the wife’s first ground of appeal.

1. Ground 2 is also concerned with the domicile issue and is in the following terms:

   2.       The trial judge made an error of law in that he considered that it was not correct that, in order to prove the acquisition of a domicile of choice, the elements of physical presence and intention must be shown to have occurred at the same time.

1. In paragraph 4 of his judgment, Cohen J explained that this Court would only have jurisdiction to dissolve the marriage of the husband and the wife if the husband was domiciled in Australia on the day the application for dissolution was filed, and that the onus was on the husband to establish that this was so.

1. His Honour then proceeded in paragraphs 5 to 12 of his judgment to make a number of findings of fact which would support a finding of domicile.  Those findings, presumably made on the basis of the husband’s affidavit filed on 29 March 2000 and a further affidavit filed on 6 April 2001, were conveniently summarised by Counsel for the husband in his written submissions, in the following way:

   ·    the husband was granted permanent resident status (in Australia) on … December 1999;

   ·    he commenced residing in Australia on … November 1999;

   ·    he intends to live permanently in Australia;

   ·    he incorporated a company in Australia on … March 2000 although remaining a director of a company in Korea and continuing to conduct business in Korea;

   ·    he purchased a motor vehicle in Australia;

   ·    he purchased a property in Sydney for $595,000;

   ·    he has taken our private health insurance in Australia;

   ·    he has become a member of the … Golf Club paying a joining fee of $45,000;

   ·    he has become a member of a Country Club paying a joining fee of $20,000;

   ·    he has lived in a de facto relationship with Ms C since September 1992 and they have a child;

   ·    Ms C and the child have lived with the husband in Australia since November 1999;

   ·    Ms C has been granted permanent resident status in Australia.

1. His Honour then said:

   13. The test of intention to acquire a domicile of choice is an extremely simple one. It is prescribed by the Domicile Act 1982, s.10 of which provides:

   “10.     The intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his home indefinitely in that country.”

   The husband’s unchallenged evidence is that on 28 March 2000 he had such an intention.  That, on 16 December 1999, the family possessions were shipped to Australia is some evidence that at that date there was an intention in the husband to live in Australia indefinitely.

   14.     I can look with the benefit of hindsight at what has happened since 24 January 2000 to assess the husband’s intention at that date.  The things the husband then did which are referred to above together with the things mentioned which the husband had already done, the evidence of his intentions and his de facto wife’s consistent intentions satisfy me, on balance, that the husband had, by 21 January 2000 (sic), developed an intention to make his home in Australia for an indefinite time.

1. However, a potential difficulty in this case was that the husband, having executed his dissolution application on 11 January 2000 then immediately travelled to South Korea, where he remained until he returned to Australia on 31 January 2000.  Thus he was not present in Australia on 24 January 2000 when the application was filed on his behalf, as Cohen J recorded in paragraph 15 of his judgment (emphasis added):

   15.     However he was not in Australia on 24 January 2000.  He was in South Korea.  He had executed his application in Sydney on 11 January 2000, then had immediately travelled to South Korea, arriving on the same day.  He remained in South Korea until 31 January when he returned to Australia.  In his application, he swore that he regards Australia as his home and that he intends to live here indefinitely.  The wife did not seek to test his evidence.

1. It was the wife’s case before Cohen J that in order to be found to be domiciled in Australia, a person had at the relevant time to be “lawfully present with the intention of remaining indefinitely”.  His Honour rejected the wife’s arguments in this regard, saying as follows (emphasis added):

   16.     The wife relies on a commentary in Conflict of Laws in Australia, (6th Ed.) by The Honourable P. R. Nygh, a retired judge of the Appeal Division of this Court.  There, it is stated: “A person acquires a domicile of choice in a country if being lawfully present there with the intention of remaining in that country indefinitely.  The two elements of physical presence and intention must occur at the same time.” No authority is cited for these propositions. The wife relies on them. In my opinion, if the words are read in their strictest sense, they are, with great respect to its learned author, incorrect. The Domicile Act is not a code. At common law the necessary intention must be formed while the person in question is present in the country of choice. Thus the common law applies to the condition of presence in the relevant country. However, s.10 of the Domicile Act imposes strict limits on the type of intention needed to acquire a domicile of choice. These cannot be modified by any divergence from the provisions of s.10 in the common law.

   17.     The argument put forward by the solicitor for the wife depends on the proposition that to attain domicile in Australia one must be at a relevant time “lawfully present with the intention of remaining indefinitely.”  This principle was relied on to argue that, on 11 January, although the husband was lawfully present in Australia he had no intention of remaining indefinitely because he left immediately and must have intended to leave at the time he swore to the truth of the application which was filed while he was still out of the country.

   18. This argument is one of semantics and is based on a strict reading of the words of the text which has been reproduced. It is sufficient to say, in order to dismiss the wife’s argument, that the text does not accord with the Domicile Act. The Domicile Act provides, not for an intention in a person to remain in the country indefinitely, but for an intention to make his home indefinitely in the country. One can, in my opinion, intend while present in a country to make one’s home there for an indefinite period while intending to leave temporarily immediately thereafter. This is what the husband did, I am satisfied on balance, on 11 January 2000. I am equally satisfied, on all the evidence, that this intention was the same on 14 January 2000 (sic – semble 24 January) when the application for dissolution was filed despite the husband’s presence in South Korea. I find that the husband had acquired a domicile of choice in Australia by 11 January and that domicile was unchanged by 24 January 2000 and at that date the husband was domiciled in Australia.

1. The terms of Ground 2 (being that Cohen J erred in concluding that it was not correct that in order to prove the acquisition of a domicile of choice, the elements of physical presence and intention must be shown to have occurred at the same time) indicate that the wife wished to pursue on appeal the same arguments which she pursued before Cohen J and which his Honour outlined and rejected in the paragraphs just quoted from his judgment.  Further, in his written and oral submissions in support of Ground 2, Counsel for the wife asserted that Cohen J had erred by doubting the correctness of the propositions stated in the work Conflict of Laws in Australia by the late Dr Nygh.

1. However, the written submissions of Counsel for the wife also contain the following concession (at page 12), and we understood Counsel effectively to confirm this concession in his oral submissions to us:

   It was not impossible for the trial judge to find (see paragraph 18 of His Honour’s judgment) that the husband was domiciled in Australia at 24-01-2000 in that the husband:

   *        had before that date been physically present in Australia; and

   *at some moment during the time of that presence may have had an intention to make his home indefinitely in Australia; and

   *may not, at any time after that moment and before filing his application for divorce, have formed a different intention.

   The appellant accepts the validity of the opinion expressed by the trial judge in the 4^th sentence of paragraph 18 of His Honour’s judgment.

1. The fourth sentence of paragraph 18 of Cohen J’s judgment is as follows:

   One can, in my opinion, intend while present in a country to make one’s home there for an indefinite period while intending to leave temporarily immediately thereafter.

1. Although Counsel then went on in his written submissions to question “whether in all the circumstances His Honour came to the correct conclusion about the husband’s domicile at 24-01-2000”, we consider that it is unnecessary, given Counsel’s concession, for us to give further consideration to Ground 2.  We would however conclude by saying that at least on the basis of the submissions put to us, we are not persuaded that his Honour erred as asserted by Ground 2.  (See also Ferrier-Watson v McElrath (supra) per Holden and Jerrard JJ at [66] – [84]).

1. Ground 5 is in the following terms:

   5.       The trial judge made an error of law in that in reaching his decision he relied upon a mistaken view as to a relevant fact of the case, namely he asserted (Reasons, paragraph 10) that the husband had travelled to Australia “frequently” before the husband was (on or about …-12-1999) granted permanent residency rights in Australia, but the evidence is (vide paragraph 3 of husband’s affidavit sworn 28-03-2000) that the husband travelled to Australia only once before he was granted permanent residency rights in Australia.

1. It is true that in paragraph 10 of his judgment, his Honour said:

   …he had been in Australia before being given permanent residency as he travelled here frequently in the course of his business.

1. It is also true that in his affidavit sworn 28 March 2000, the husband stated:

   3.During the periods 22 November 1999 to 27 November 1999, 23 December 1999 to 26 December 1999, 31 December 1999 to 11 January 2000, 1 February 2000 to 16 February 2000 and 12 March 2000 to date I have been in Australia.  I intend to remain permanently in Australia.  The reasons why I returned to Korea was to attend to my outstanding affairs regarding my permanent move to Australia.

   4.On or about … December 1999 my application for permanent residency in Australia was granted.  Annexed hereto and marked with the letter “A” is a copy of the grant issued by the Department of Immigration.

1. It would seem therefore that his Honour may have made a mistake of fact when he said that the husband had travelled to Australia “frequently” in the course of his business prior to being granted permanent residency here.  However, as Counsel for the husband has submitted, this fact was just one fact among the long list of factors which persuaded his Honour that the husband was domiciled in Australia.  We are not convinced that there would have been a different finding as to domicile had his Honour not made this alleged mistake of fact.

The refusal to stay the dissolution proceedings instituted by the husband

1. Having determined that the husband was domiciled in Australia at the time his application for dissolution of marriage was filed, Cohen J had to decide the issue, as he described it in paragraph 19 of his judgment, “of whether the Court should reject its jurisdiction and stay the divorce application filed by the husband”.

1. In order to decide this issue, his Honour first discussed at some length the relevant High Court authorities of Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 and Henry v Henry (1995-1996) 185 CLR 571, and the principles which emerge from those authorities. Although we understood Counsel for the wife to concede that his Honour did not misstate the relevant principles, we do not propose to set out his Honour’s formulation of them. Rather we think that the preferable course is for us to set out the relevant passages from the High Court judgments in Henry (being also a decision concerned with the stay of Australian divorce proceedings, and a decision recently affirmed by the High Court in Regie National des Usines Renault SA v Zhang (2002) 187 ALR 1). Against the background of the High Court judgments, we will then consider the wife’s appeal against his Honour’s refusal, in the exercise of discretion, to stay the Australian dissolution proceedings instituted by the husband.

1. In Henry, a similar question arose as arises in this case, being whether proceedings for dissolution of marriage properly instituted in Australia should be stayed, with the only difference between the two cases being that in Henry there were also dissolution proceedings pending in a foreign court which is not the situation in the present case (although as we will later discuss, there is before the Court an application by the wife to adduce further evidence in relation to certain proceedings which she has now instituted in South Korea).

1. Before Cohen J, both parties placed considerable reliance on the judgment of Brennan CJ in Henry.  It is thus appropriate that we refer to certain passages from his Honour’s judgment, as well as the passages from the majority judgment of Dawson, Gaudron, McHugh and Gummow JJ.

1. In the course of his judgment, Brennan CJ said at 575-581 (footnotes omitted):

   In Voth v Manildra Flour Mills Pty Ltd … the test of ''clearly inappropriate forum''  was adopted by a majority of this Court … as the test to be applied when a party to proceedings in an Australian forum seeks a stay of those proceedings in order to permit the same matter to be determined in a foreign forum having the necessary jurisdiction.  … Two questions now arise for consideration: does Voth apply to proceedings for a decree of dissolution of marriage under the Family Law Act 1975 (Cth)? and, if so, what factors does Voth  require the Court to take into account?

   …

   The jurisdiction of the Family Court in the present case is conferred by s 39(3) of the Family Law Act …

If the Family Court is seized of jurisdiction under the sub-section, Voth  affords the only legitimate ground for declining to exercise it.

It follows that, before proceedings instituted under s 39(3) of the Family Law Act  are stayed, two conditions must be satisfied: first, that the Family Court is a clearly inappropriate forum in which to determine proceedings for a decree of dissolution of the marriage in question; secondly, that there is some forum in another country which has and can exercise jurisdiction in proceedings for a decree of dissolution of marriage. 

…

The extended jurisdiction which is conferred by s 39(3) of the Family Law Act is clearly intended to allow decrees of dissolution to be made under the Act when there is a personal connection by way of citizenship, domicil or ordinary residence between a party to the marriage and Australia. So long as that connection is shown, the intention of the sub- section is that persons falling within par (a), (b) or (c) of that sub-section should be able to apply for relief by way of a decree of dissolution in appropriate cases. It would be contrary to the statutory intention for the Family Court to deny that relief if it were not available in another forum. Therefore, where proceedings for a decree of dissolution of marriage are instituted under s 39(3) of the Family Law Act  and an application to stay those proceedings is made in accordance with the rule in Voth , it would be necessary for the applicant to show that a foreign tribunal has jurisdiction to make such a decree. Obviously, the connection prescribed by s 39(3) would exist in some cases in which there would be no other relevant connection of any substance between the marriage and Australia. These are the cases in which it is material to consider the application of the Voth  test.

The Voth test in the present case

The parties to the marriage in the present case were not married in Australia.  They have never lived in this country as man and wife. Their married life was lived in Europe, latterly in Monaco where they had their matrimonial home.  In this country, there are no children of the marriage whose custody, maintenance or welfare might be affected by the making of a decree of dissolution.  Nor is there here any substantial property of the spouses the disposition of which might be affected by the making of a decree of dissolution. In short, there is no connection between the marriage of the parties and this country. 

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

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

I do not regard the stage which the wife's proceedings in Monaco have reached to be material to the resolution of this case. If the order in which proceedings are commenced were to be regarded, without more, as material to the application of the Voth  test, the focus of the inquiry would be shifted to the comparative  advantages of continuing the proceedings in the respective fora.  It is not helpful, in my respectful opinion, to enquire whether there are proceedings on foot elsewhere and then, perceiving that duplication of the proceedings in the selected forum would be undesirable, hold that the selected forum is clearly inappropriate.  To adopt that line of reasoning would be to conclude that, as between two fora possessed of jurisdiction to determine the same matter, the forum in which the proceedings are not first brought is a clearly inappropriate forum.  It is of the nature of the problem that two fora have jurisdiction to determine the same matter in dispute, but the Voth  test requires that the focus be on the advantages and disadvantages of proceeding in the selected forum.  Of course, there may be cases where proceedings instituted in the selected forum are oppressive in the relevant sense because the institution of those proceedings was delayed until the proceedings in the foreign forum were nearing completion.  But that is a different case from one in which the jurisdictions of two fora have been invoked by parties because one of them favours the exercise of the jurisdiction of one forum, the other of whom favours the exercise of the jurisdiction of the other. That is the situation in the present case. 

In this case, the wife has invoked the jurisdiction of the Monegasque court, the husband has invoked the jurisdiction of the Family Court.  It matters not which proceeding was first commenced.  But Australia has no connection with the marriage or its incidents.  The Family Court of Australia is therefore a clearly inappropriate forum.  The Monegasque court has jurisdiction and, so far as appears, is willing to exercise it. The relief of a decree of dissolution is available in the Monegasque court.  Accordingly, the Family Court ought to have stayed the husband's proceeding for a decree of dissolution of marriage. 

1. The relevant passages from the majority judgment in Henry are as follows (at 586-593) (footnotes omitted):

   In Voth v Manildra Flour Mills Pty Ltd … this Court confirmed its rejection, in Oceanic Sun Line Special Shipping Company Inc v Fay … of the forum non conveniens principle as stated by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd …  The Spiliada  principle allows that a court may stay proceedings which are pending before it if that court is not the natural forum and there is another available forum which is clearly or distinctly more appropriate.  …

In Voth… this Court adopted for Australia the test propounded by Deane J in Oceanic Sun , namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of ''seriously and unfairly burdensome, prejudicial or damaging'' , or, vexatious in the sense of ''productive of serious and unjustified trouble and harassment'' …  It was also held in Voth  that, in determining whether the local court is a clearly inappropriate forum, "the discussion by Lord Goff in Spiliada … of relevant 'connecting factors' and 'a legitimate personal or juridical advantage' provides valuable assistance" …  In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being ''where the case may be tried 'suitably for the interests of all the parties and for the ends of justice' '' ….

…

Proceedings between husband and wife with respect to the marital relationship

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

Although the appellant first brought proceedings against the respondent in Monaco for judicial separation and, only later, commenced proceedings for divorce, both proceedings were, in essence, proceedings with respect to their marital relationship. Clearly, it was the same marital relationship which was the subject of the divorce proceedings brought in Australia by the respondent.  And although it may not be quite so clear, the property proceedings instituted by the respondent in the Family Court are but an aspect of his controversy with the appellant as to their marital relationship.  It may have been otherwise if they were no longer married, but so long as their marriage subsists, their dispute with respect to property is a dispute as to the rights and obligations arising out of their marital relationship and those which should attend its dissolution.  As such, it is properly to be seen as part of the controversy with respect to that relationship.

Considerations relevant to a stay of proceedings between husband and wife with respect to their marital relationship

Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written.  To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage.  And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question.  However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees.  If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue.  However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done …  As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy. 

Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions.  Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.  The list is not exhaustive.  Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.

Relevant considerations not taken into account in the present case

The stay proceedings were fought on narrow grounds, perhaps reflecting the practice which has developed in the Family Court. The appellant cannot now be heard to complain that matters which were not advanced in support of her application were not taken into account. Nor can she be heard to complain that her application was considered only in relation to the divorce proceedings and not in relation to the property proceedings initiated by the respondent: that seems to have been at her request; in any event it was not the subject of complaint at any point in the Family Court. 

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

1. Against the background of the judgments of the members of the High Court in Henry, we turn to his Honour’s judgment.  The following passages from his judgment reveal the matters which he took into account and the weight he attached to those matters in reaching his decision to exercise his discretion to refuse to stay the Australian dissolution proceedings (emphasis added):

   28.     … The wife’s solicitor seems to have assumed that once the objector to the jurisdiction has proven the marriage and its incidents have had no relationship with Australia, the local forum is clearly inappropriate unless the proponent of it proves otherwise even if he has met an onus to provide evidence which would, when weighed with the wife’s evidence, result in the Court being unable to be satisfied that the wife has proven her case.  If this is his approach, I do not agree.  The probative onus does not shift.  I shall have regard to the incidents of the marriage and their connection to Australia with all the other relevant considerations permitted by the evidence in deciding whether the continuation of the proceedings in this Court is oppressive or vexatious to the wife and whether the Family Court of Australia is a clearly inappropriate forum.

   …

   30.     The husband argued that the relief he seeks is not available in the foreign forum.  It is not in dispute that divorce on specified grounds is available in South Korea.  The husband applied for it and failed in 1992.  There seems to be an underlying assumption in the evidence and arguments that he would still not succeed in such an application.  That does not make a case for the relief being unavailable.  Relief is available in South Korea provided the grounds for its grant are satisfied.  However, the evidence does not indicate whether or not the grounds are available to the husband.  If it had been proven one way or the other it would be a matter which would go to his status and capacity to remarry in Australia and would be a factor to be considered, as would be his right, if grounds are not available, not to suffer any legal disadvantage by not being married.  I shall determine the matter on the basis that I do not know whether or not the husband has a reasonable prospect of establishing grounds for divorce in South Korea.  …

   …

   32.     …  I have also heard the cross-examination of Mr Soo Young Chae, a lawyer brought from South Korea and put forward by the husband as an expert on the relevant law of that country.  I accept him as an expert on the matters about which he has given evidence and I accept the essence of his evidence that South Korean courts will recognise civil judgements and the like by Australian courts and, in particular, the decisions of the Family Court of Australia with respect to divorce and property proceedings despite the wife’s challenge to Mr Chae’s qualifications to be regarded as an expert and to the opinions which I have accepted.

   33.     One of the arguments presented on behalf of the wife is the similarity between the facts here and those in Henry v Henry and in In the Marriage of Ferrier-Watson and McElrath 26 Fam LR 169. There are many similar facts in each instance. There are also significant differences in each. In the proceedings now before the Court the husband applied for a divorce and failed in South Korea in 1992. Now there are no proceedings in South Korea which have not been completed. There have not since been any proceedings there between the parties. In Henry v Henry, at the heart of the decision in the High Court is the fact that proceedings commenced by the respondent to the local proceedings were already on foot in the foreign forum.  The Court held that, below, insufficient regard was paid to the fact that there were proceedings on foot there and to the stage they had reached.  It was said that the proceedings being on foot was a “most material consideration”.

   …

   36.     Thus, it is relevant that here there are no proceedings on foot in the foreign jurisdiction so the wife would not be deprived of the benefit of any proceedings she has commenced or is engaged in.  These are not the only considerations which must be undertaken on the matrix of relevant matters.  They are not critically significant and should not be regarded as weighing particularly heavily in favour of the husband, but they must be given due weight. 

   37.     In support of her case the factors the wife puts forward, in addition to those matters which have been mentioned, are not very wide ranging.  She was born in South Korea and is now about 52 years old.  She has always regarded South Korea as her home, is a South Korean citizen, as is the husband, and has lived most of her life there.  She has no assets outside South Korea.  She can understand English to some extent because she lived with the husband in Hong Kong for a relatively short period.  In the last 20 years she has not had to resort to English very often and does not have the facility in it or understanding of it to be able to take part in proceedings in English without an interpreter.

   38.     The parties were married in South Korea in 1975.  They have two sons, aged 25 and 23 years, both of whom live in South Korea with the wife.  They are full time university students.  It can be inferred that, despite their ages, the wife still looks after them and to some extent they are dependent on her for their daily needs.  If she was to come to Australia she would not be able to meet these for a short time.

   39.     The wife has said she wishes to remain married to the husband.  It might be that her objection to the jurisdiction will give her a legitimate forensic advantage in defending an application for dissolution.  I cannot say whether or not it will because I have not been informed of South Korean law of divorce.  Nor have I have been informed of the effect of divorce proceedings in South Korea on the wife’s property or maintenance rights.  As the wife has the onus of proof of the effect of divorce on her other rights, the failure to call evidence of this renders irrelevant any consideration of the effects of an Australian divorce on any claim which she might make in South Korea, but has not for 9 years made, for property settlement or maintenance or any other form of financial or like entitlement which might arise from the marital relationship.

   40.     The husband has property in both South Korea and Australia.  The wife has no property in Australia but may have property in South Korea.  The husband does not maintain her, she does not have a job and has no independent income.  Her father keeps her.  She made that clear, but did not choose to state whether or not she has property in South Korea; she merely said that she has neither the means nor capacity to prosecute proceedings in Australia, in particular any claim by her for property division, spousal maintenance or any right of appeal she has or may have.

   41. The claims about the consequences of continuing in the Australian jurisdiction bring to the fore a need to confront reality in relation to their force. The plain fact is that any right she has to maintenance or property under the Family Law Act is independent of the grant or refusal of a divorce. Her rights to property and maintenance are barely altered by the fact of divorce except that, without leave, the wife would have to institute them within one year of the decree becoming absolute.

   42.     The claim that the wife will be disadvantaged in Australia because she will not be able to defend the application for dissolution or appeal because she cannot afford to is, in my opinion, of very little weight.  An inability to appeal against my decision because lack of funds cannot have a bearing on these.  The only appeal which could be contemplated as putting the wife at a disadvantage would be from the grant of a decree of dissolution or would be an application for stay of the decree on a ground which is, in effect, an appeal.  Inability to speak the language or to come to Australia would have insignificant bearing on the wife’s right to appeal in either instance. 

   43.     I have already ruled on the issue of domicile.  The wife argued that I had no choice but to deal with that issue before dealing with the issue of forum non conveniens and the marriage itself.  The decision on domicile would only be subject of an appeal in the matter now being heard.  Otherwise, the wife will be prevented from challenging the husband’s domicile because it has already been decided between the parties. 

   44.     The only other issues in a divorce application which can be disputed are the grounds for dissolution and the fact of marriage itself.  Separation for the requisite time has been admitted by the wife in her affidavit of 29 September 2000.  The marriage is admitted in the same affidavit. 

   45.     The wife has a right to be present during and/or to defend the dissolution proceedings that and the wife’s right to appeal and be present at an appeal must be viewed in their true light when they are being considered.  It is that the wife has little chance of successfully defending the husband’s divorce application and will not be disadvantaged if she cannot come to Australia to do so or if she cannot speak the language.

   46.     The husband has lived in Australia for a short time, is settled here and visits South Korea frequently.  He can afford to litigate in Australia or South Korea.  If he suffers a language difficulty, it would be in Australia not South Korea.  He has a long standing de facto wife who he wishes to marry if he is able to dissolve his current marriage.  This marriage might not have much connection with Australia, but the husband’s divorce does. It will have an effect on the status of the husband in Australia in that it will free him to live in Australia as a married person. His hoped for marriage has a connection with Australia. I do not know whether the husband will be able to achieve a dissolution in the South Korean jurisdiction. He and his de facto wife intend to remain in Australia. Despite anti-discrimination legislation, people in de facto relationships do suffer disadvantages in Australia. Changing attitudes have not resulted in universal acceptance of such unions; in fact, many establishment institutions as well as many individuals still look down on or refuse to accept de facto marriages as being equal in status to legal marriages. There are continuing legal disabilities too. For example, the husband and his de facto wife, if their relationship fails, will have reduced rights to share in the property of the relationship if they are unable to marry. Pursuant to the Property (Relationships) Act, 1984 (NSW), contributions to property are taken into account but not needs. Married persons have resort to the Family Law Act. Under it, needs and other matters related to needs are also relevant to the determination of financial rights and responsibilities. The refusal to accord the same rights to de facto couples is often said to be a manifestation of communal attitudes and beliefs that de facto marriages lack special and desirable incidents of legal marriages. Although the situation with his divorce in South Korea is not known, it is known that the husband’s prospects of divorce and remarriage are high if the Court refuses to abandon its jurisdiction.

   47.     On the evidence before me, the real reason for the wife’s opposition to the Australian forum is her unwillingness to be divorced.  She has a forlorn hope that the husband will resume a marital relationship with her.  This basis for opposition to the local forum seems to me to be both seriously and unfairly burdensome and damaging and productive of serious and unjustifiable trouble and harassment to the husband.  In all the circumstances, I do not think that the wife will suffer oppression or vexation if the proceedings against her are continued in this Court.  A weighing of all the matters discussed has not satisfied me that, on balance, this Court is a clearly inappropriate one in which to entertain the husband’s application for dissolution. 

The wife’s application to adduce further evidence

1. Before considering the wife’s grounds of appeal directed to his Honour’s refusal to stay the Australian dissolution proceedings, we will consider the wife’s application to adduce further evidence in support of her appeal. 

1. As described in her application filed 25 March 2002 the evidence sought to be adduced is “… evidence as to the existence in Korea of litigation in which the parties have become involved since the making of the orders which are the subject of this appeal”.

1. In an affidavit from the wife’s solicitor filed with the application to adduce further evidence, the nature and purpose of the further evidence are explained in the following terms:

   …

   2.In the decision under appeal His Honour Justice Cohen places reliance upon the fact that no proceedings are on foot between the parties in another jurisdiction. Since His Honour delivered that decision the parties have become involved in proceedings between themselves in another jurisdiction, namely Korea.

   3.The appellant requests, so that injustice will not arise from the Justices hearing the appeal being unaware of the true state of affairs in existence at the time of that hearing, that the court receive into evidence the document which is annexure “E” hereto.

   …

   7.In January 2002 I wrote to the appellant in Korea requesting that she provide me with information about the status of the proceedings which she had instituted against her husband in Korea.  Annexure “E” hereto is a true copy of a letter dated 01-02-2002 which I subsequently received from the wife’s lawyer in Korea.  

1. Annexure E is a letter from a Dr Y to the wife’s solicitor which reads as follows:

   I was instructed from my client [Ms P] to write about following Appeals to the Family Court of Seoul to you.

   1.As case: 2001 De-Hap 16081, on 12 December 2001, I have submitted the Lawsuit for claiming for application of existence of marital relationship between the parties, Plaintiff, [Ms P] and Defendant, [Mr B] and for supporting charge as shown attached evidence in English. A.

   2.As case: 2001 Zeu-Dan 4267, on 12 December 2001, I submitted the application for provisional seizure of real estate between the above parties at the same time with above lawsuit as shown attached evidence. B.

   3.Mr [B] responded to his wife [Ms P’s] Lawsuit on 22 January 2002.

   4.Husband instructed lawyer Mr. Myung-Gun Yu for his solicitor.

   5.Mr. Yu appealed to the Court to delay the date of court hearing from 31 January 2002 set by the Court to 4 March 2002, excusing Mr. [B’s] trip to Australia up to the end of February 2002.

1. The attachments to the letter are two documents each headed “Certificate of Filing” and apparently sealed by an Assistant Court Administrator of the Family Court in Seoul.  One such certificate relates to a case described as “Claiming for authentication of existence for marital relationship for supporting charge”.  The other is for a case described as “Application for provisional seizure of real estate”.

1. Also annexed to the affidavit of the wife’s solicitor were various letters between that solicitor and the husband’s Australian solicitors concerning the possibility of the preparation of an agreed statement of “relevant connecting factors”.  The reason why their correspondence should be received as further evidence was never satisfactorily explained to us and we do not propose to receive it.

1. However, the material concerning the proceedings which the wife has instituted in South Korea is not without significance.  Initially Counsel for the husband opposed reception of the material.  However, we understood his final position to be that the safer course might be for us to receive that evidence.

1. Given the emphasis placed by members of the High Court in Henry on the situation in relation to foreign proceedings in a case such as the present, we propose to receive the further evidence in order to inform ourselves as to the situation in relation to the proceedings in South Korea.  However, we are also of the view that that evidence does nothing to assist us in understanding the nature of the proceedings in South Korea or what impact, if any, they would have on the wife’s application to stay the Australian proceedings.

The grounds of appeal directed to the refusal to stay the Australian dissolution proceedings

1. We turn then to the grounds of appeal directed to his Honour’s exercise of discretion in refusing to stay the dissolution proceedings instituted by the husband in Australia.  The first ground directed to this issue is Ground 3 which is in the following somewhat unusual terms:

   3.       The trial judge made an error of law in that when considering whether the Family Court of Australia was or was not a clearly inappropriate forum he acted upon wrong principles.

   Particulars:
   (a)      His Honour, instead of focussing upon the inappropriateness of the local court, focussed instead upon the appropriateness, or comparative appropriateness, of a foreign forum.

   (b)      His Honour, instead of considering whether a continuation of the proceedings in the local forum would be vexatious or oppressive to the respondent in those proceedings, considered or purported to consider whether a refusal to continue to hear the proceedings in the local court would be vexatious or oppressive to the applicant in those proceedings.

   (c)      His Honour failed to have regard, or sufficient regard, to the fact that a local court could be a clearly inappropriate forum notwithstanding that there was no other tribunal which was competent to entertain the particular proceedings.

   (d)     His Honour failed to recognise that this was not a case “in which the ascertainment of the natural forum is a complex and finely balanced question”.

   (e)      His Honour failed, or appears to have failed, to understand and acknowledge that the sole issue between the parties is their marital relationship (and its incidentals, one of which is divorce), that “the husband’s divorce” (Reasons, paragraph 46) is identical with the respondent wife’s divorce, and that if there are no relevant “connecting factors” between Australia and the parties’ marriage then there are also no such connecting factors between Australia and an incident of the marriage (namely, whether the marriage should be dissolved).

1. In support of the complaint in Particular (a), being that “instead of focussing upon the inappropriateness of the local court, focussed instead upon the appropriateness, or comparative appropriateness, of a foreign forum”, we were referred by Counsel for the wife to paragraphs 1 and 25 of Cohen J’s judgment. 

1. In paragraph 1 of his judgment, his Honour described the second issue before him as being “whether a stay of proceedings should be ordered as a result of the respondent wife’s objection to the exercise by the Court of jurisdiction on the ground that the Republic of Korea (South Korea) should be the forum rather than Australia for determining the husband’s quest to dissolve his marriage to the wife”.

1. It is true that in this passage his Honour does not correctly state the test which he had to apply, being whether the Australian Court was a “clearly inappropriate forum”.  It is also true that the passage could be read as indicating that there were dissolution proceedings on foot in the courts of South Korea, which was not the case.  However, we think that little turns on either of these errors (if they can be so termed) on the part of his Honour.  It is clear to us from what his Honour said later in his judgment (particularly at paragraphs 20 – 28) that he understood that he had to apply the “clearly inappropriate forum test”, and it is also clear from paragraph 36 of his judgment that his Honour knew that there were no proceedings on foot in South Korea at that time.

1. We do not understand why we were referred by Counsel to paragraph 25 of his Honour’s judgment in support of Particular (a).  Out of fairness to Counsel, we will set out that paragraph but we do not see how it supports the complaint in Particular (a) of Ground 3:

   25.     In Henry v Henry the Court comprised of Brennan CJ., Dawson, Gaudron, McHugh and Gummow JJ.  Two judgements were delivered, although the Court was unanimous on the application of the clearly inappropriate forum test to matrimonial causes.  The majority judgment of all members of the Court except Brennan CJ held that whether this test is met will depend on, as the headnote states, “…the general circumstances of the case, taking into account the time nature and full extent of the issues involved.  These include whether each forum can provide more effectively for the complete resolution of the controversy; the order, stage and costs of the proceedings; the connection of the parties and the marriage to each jurisdiction and the issues upon which relief might depend.  Matters such as the prima facie right to insist upon the exercise of jurisdiction once invoked and the substantive law of the selected forum should not be given undue emphasis.”  The latter caution does not mean that the prima facie right to invoke jurisdiction in the local forum can never be a consideration, merely that it should only be given the weight which the other circumstances warrant.  Nor does it mean that the law of the local forum is not relevant.  It means that it is a circumstance, the weight of which ought to be determined by the other relevant circumstances, which should not be given undue emphasis.  The Court also held that it is relevant to consider whether the parties are able to compete in the local forum and the foreign one on an equal footing taking account of, for example, language and resources.  The Court said, at p.593 “the list is not exhaustive, rather the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved?”

1. The complaint in Particular (b) is that his Honour “instead of considering whether a continuation of the proceedings in the local forum would be vexatious or oppressive to the respondent in those proceedings, considered or purported to consider whether a refusal to continue to hear the proceedings in the local court would be vexatious or oppressive to the applicant in those proceedings”.

1. In support of this complaint we were referred to paragraphs 23 and 47 of his Honour’s judgment.  We have set out paragraph 47 above, but for convenience will here repeat it together with paragraph 23:

   23.     Although the Court should not determine the issue of whether to grant a stay on a comparison between jurisdictions or on a balance of convenience, the Court can, and must if the facts warrant it, take into account both the advantages and disadvantages of the local forum.  The Court must, if the facts warrant it, consider whether to refuse to hear the proceedings would be vexatious or oppressive to the party who has invoked the jurisdiction of that forum just as it must also consider whether they are vexatious or oppressive to the defendant or respondent.  However, such an exercise does not involve any assessment of the comparative merits of the foreign forum, either procedural or otherwise, nor a comparison of the laws to be applied to the claim in question.  At page 559 their Honours said:
            “In a context where the relevant test will fall to be applied in accordance with the individual perception of a primary judge, the courts of this country are better adapted to apply a test which focuses upon the inappropriateness of the local court of which the local judge will have both knowledge and experience than to a test which focuses upon the appropriateness or comparative appropriateness of a particular foreign tribunal of which he or she is likely to have little knowledge and no experience.”

   …

   47.     On the evidence before me, the real reason for the wife’s opposition to the Australian forum is her unwillingness to be divorced.  She has a forlorn hope that the husband will resume a marital relationship with her.  This basis for opposition to the local forum seems to me to be both seriously and unfairly burdensome and damaging and productive of serious and unjustifiable trouble and harassment to the husband.  In all the circumstances, I do not think that the wife will suffer oppression or vexation if the proceedings against her are continued in this Court.  A weighing of all the matters discussed has not satisfied me that, on balance, this Court is a clearly inappropriate one in which to entertain the husband’s application for dissolution. 

1. We agree that it could be said that his Honour has considered the impact on both parties of a continuation or discontinuation, as the case may be, of the Australian proceedings.  But having regard particularly to the endorsement by the majority in Henry of Lord Goff’s statement in Spiliada that the fundamental question in cases such as the present is “where the case may be tried ‘suitably for the interests of all parties’ and for the ends of justice”, and also to the statement by the majority (at 593) that it “be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions”, we consider it was open to his Honour to consider the position and interests of both the husband and the wife.  In so doing, we do not consider that he gave undue weight to the interests of the husband at the expense of the interests of the wife.

1. Particular (c) asserts that his Honour failed to have regard or sufficient regard “to the fact that a local court could be a clearly inappropriate forum notwithstanding that there was no other tribunal which was competent to entertain the particular proceedings”.

1. We do not understand what is intended by this particular, given that there does not seem to have been any suggestion that divorce proceedings could not be entertained by a court or tribunal in South Korea.  The content of paragraphs 21, 33 and 36 of his Honour’s judgment to which we were referred in support of Particular (c) do not assist us to understand the complaint being made.

1. Similarly we do not understand the complaint being made in Particular (d).  Again the various paragraphs in his Honour’s judgment to which we were referred (including paragraphs 30, 37 – 39, 40 and 46) do not assist us.

1. Particular (e) asserts a failure on the part of his Honour to “understand and acknowledge that the sole issue between the parties is their marital relationship (and its incidentals, one of which is divorce), that ‘the husband’s divorce’ (Reasons, paragraph 46) is identical with the respondent wife’s divorce, and that if there are no relevant ‘connecting factors’ between Australia and the parties’ marriage then there are also no such connecting factors between Australia and an incident of the marriage (namely, whether the marriage should be dissolved)”.

1. This complaint would seem to be that the Australian Court would have to be found to be a clearly inappropriate forum if it was found that there was no connection between Australia and the parties’ marriage.  It may well be that such a proposition could be derived from certain of the passages from Brennan CJ’s judgment in Henry which we have quoted above.  But we do not think that there is anything in the majority judgment in Henry which supports such a proposition. Rather we read the following passage from the majority judgment as authority for the proposition that the connection between the parties and the marriage with each of the jurisdictions is just one matter in a non-exhaustive list of matters to be considered (at 593):

   Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions.  Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.  The list is not exhaustive.  Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.

1. Having regard to that passage from the majority judgment, we consider that the discussion in paragraph 26 of his Honour’s judgment is sound.

1. Ground 4 is in the following terms:

   4.       The trial judge made an error of law in that he gave weight to extraneous or irrelevant material, including assertions that:
   (a)      there were no proceedings on foot in a foreign jurisdiction;

   (b)      the respondent wife had not, for 9 years, made any claim in Korea in respect of the marriage and its incidentals;

   (c)      the respondent wife failed to lead evidence of the effect of a divorce upon any claim which she might make in South Korea.

1. His Honour’s reference to there being no proceedings on foot in a foreign jurisdiction is to be found in paragraph 36 of his judgment.  Given the weight placed by both the Chief Justice and by the majority in Henry on the existence of the foreign proceedings in that case, we do not see how in the present case his Honour can be criticised by having regard to the fact that there were (then) no proceedings on foot in the foreign jurisdiction.  But in any event, it must be pointed out that his Honour took into account not merely the fact that there were no foreign proceedings on foot, but rather the fact that this situation meant that “the wife would not be deprived of the benefit of any proceedings she has commenced or is engaged in”.  It must also be pointed out that his Honour made it clear in paragraph 36 that he was not giving these matters great weight.

1. The matters mentioned in sub-paragraphs (b) and (c) of Ground 4 are to be found in paragraph 39 of his Honour’s judgment.  As we read that paragraph we do not think that it can be fairly said that his Honour gave weight to the matters of the wife’s failure to lead evidence about the effect of any divorce upon any claim which she might make in South Korea or about the fact that she had not made any claim there in nine years in respect of the marriage. 

1. The real matter that his Honour then appears to us to have been focussing on at this point in his judgment is that the question of the effects of an Australian divorce on any claim the wife might make in South Korea had become an irrelevant consideration in the determination of the case because of a lack of evidence about that matter.  We consider that that conclusion was open to his Honour.

1. Ground 6 is as follows:

   6.       The trial judge failed to give sufficient weight to all the relevant evidence because he failed, or appears to have failed, to appreciate and understand that the wife was not submitting that (the courts of) Korea should be the forum (vide Reasons, paragraph 1), but that the wife was submitting that Australia is a clearly inappropriate forum.

1. We have some difficulty in understanding this ground because no particulars have been given of the evidence to which it is alleged his Honour failed to give sufficient weight.  To the extent that the ground asserts that his Honour was under the misapprehension that the wife was submitting that the courts of South Korea were the appropriate forum, we do not agree that his Honour was under such a misapprehension.  It is clear from paragraph 36 of his judgment that his Honour was well aware that there were no proceedings on foot in South Korea at the time.  It is also clear from paragraph 47 of his judgment that his Honour was well aware that the wife was unwilling to be divorced.

Conclusion

1. For the reasons we have given, we consider that none of the grounds of appeal which the wife would pursue if she was given leave to appeal have substance.  Accordingly, we would not grant the wife leave to appeal the orders of 15 November 2001.  Nor do we consider that the further evidence which we have received would warrant granting her leave to appeal.

Costs of the application for leave to appeal and/or appeal

1. At the conclusion of the hearing before us, we invited and received submissions in relation to the costs of the application for leave to appeal and/or appeal. 

1. In the event that the appellant wife was to fail in either her application for leave to appeal or her appeal, the husband through his Counsel sought an order for costs, and we understood Counsel for the wife to concede that it would be difficult for her to resist an order for costs.

1. We are of the view that the circumstances justify the making of an order for costs, with such costs to be taxed in default of agreement.

Orders

1. That the application to adduce further evidence be allowed in part.

2. That the application for leave to appeal be dismissed.

3. That the wife pay the husband’s costs of and incidental to the application for leave to appeal and the appeal, with such costs to be taxed in default of agreement.

I certify that the preceding 77 paragraphs
are a true copy of the reasons for judgment
of this Honourable Full Court

[signed: …]

Associate