Pedersen & Eames
[2023] FedCFamC1F 161
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pedersen & Eames [2023] FedCFamC1F 161
File number(s): BRC 4882 of 2022 Judgment of: JARRETT J Date of judgment: 17 March 2023 Catchwords: FAMILY LAW – PROPERTY – Where there are ongoing proceedings for divorce in Country B – Where the Country B Court has jurisdiction to resolve all of the issues arising in the dispute between the parties – Where proceedings subsequently filed in the Federal Circuit and Family Court of Australia (Division 2) – Where the applicant has not objected to the jurisdiction of the Country B Court – Where the respondent does not seek a stay of the Country B proceedings – Where the application is vexatious and oppressive – Where Australia is a clearly inappropriate forum – Application permanently stayed Legislation: Evidence Act 1995 (Cth) s 191
Family Law Act 1975 (Cth) s 45
Cases cited: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345;
Henry v Henry (1996) 185 CLR 571;
In Pierson & Romilly [2019] FamCA 259;
Lan & Hao (No 2) (2017) FLC 93-795;
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197;
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491;
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Division: Division 1 First Instance Number of paragraphs: 51 Date of last submission/s: 14 March 2023 Date of hearing: 14 March 2023 Place: Brisbane Counsel for the Applicant: Mr Selfridge Solicitor for the Applicant: Richardson Murray Counsel for the Respondent: Mr Wilson KC Solicitor for the Respondent: Lander & Rogers ORDERS
BRC 4882 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PEDERSEN
Applicant
AND: MS EAMES
Respondent
order made by:
JARRETT J
DATE OF ORDER:
17 MARCH 2023
THE COURT ORDERS THAT:
1.Pursuant to section 45 of the Family Law Act1975 (Cth) the applicant’s Application for Final Orders be permanently stayed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pedersen & Eames has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
The question for determination in this application is whether this court is a clearly inappropriate forum for the determination of the parties’ dispute about property adjustment now that their marriage has come to an end.
Presently, the applicant on this application, Ms Eames, has proceedings on foot in the City C Court of Country B for relief concerning issues of property adjustment, parenting and spousal and child maintenance. After those proceedings were commenced, the respondent to the present application, Mr Pedersen, commenced proceedings for property adjustment in this court.
To avoid confusion, throughout these reasons:
(a)I have referred to Ms Eames as the respondent, notwithstanding that she is the applicant on the application with which I am dealing; and
(b)I have referred to Mr Pedersen as the applicant notwithstanding that he is the respondent on the application with which I am dealing.
The respondent applies for an order staying the applicant’s proceedings in Australia. The applicant seeks no relief other than that the respondent’s application be dismissed.
For the reasons that follow, I have concluded that, in the circumstances as I have found them to be, this court is a clearly inappropriate forum for the resolution of the parties’ dispute arising from the breakdown of their relationship. It is appropriate to order the stay sought by the respondent, Ms Eames.
BACKGROUND
Many of the background facts set out hereunder are agreed and can be found in a statement of agreed facts filed on 13 December, 2022. Notwithstanding that statement of agreed facts and s 191 of the Evidence Act 1995 (Cth), however, both parties sought to depart from some of them when cross-examined. Apart from recording them, those departures are immaterial.
The applicant was born in City D, Country E, in 1972 and is currently fifty-one (51) years of age. He became an Australian citizen in late 2016. He is of good health and is currently in paid employment as a Director with the F Organisation in City C. He is currently on a fixed term contract to work out of Country B until mid-2023 (although in cross-examination he said that he thought it was a short time later, in 2023). When his work ends in Country B, his visa to remain in that country will also expire and his expressed intention is to return to live in Brisbane, Australia. He will need to leave Country B no later than 28 days after the expiry of his employment contract unless he secures a further visa. The applicant owns real property in Country E.
The respondent was born in City G, Country H in 1976 and is currently forty-six (46) years of age. She became an Australian citizen in early 2016. She currently lives and works in Brisbane. She owns real property in Country H.
The parties commenced their relationship in early 2004. They started living together from mid-2004 in Country E. The parties married mid-2006 in J Region, Country K.
The parties moved from their place of residence in Country E to Australia in 2008. The applicant moved to Australia first, early in 2008. The respondent remained in Country E until mid-2008 when she moved to Australia to live with the applicant.
The parties’ only child of the relationship was born 2009 in Brisbane, Australia. He holds Country B, Country E and Australian citizenship.
In mid-2017 the applicant moved to live in Country B because he had secured work there. Early the following year, the parties’ child relocated to Country B, followed a few weeks later by the respondent in early 2018.
The parties separated in mid-2020. By the time of the separation, the parties owned real property in Brisbane. The applicant retained his property in Country E and the respondent her real property interests in Country H. The parties do not own any real property, either jointly or separately, in Country B. The applicant presently has some personal property there.
Initially, it seemed that there was no dispute that the parties separated in July, 2020. Both the applicant and the respondent agreed on that month in the statement of agreed facts and each swore to it in their affidavits of evidence in chief. But when called to give evidence, the respondent said that separation occurred in May, 2020. Nonetheless, it was not suggested that anything turned on this discrepancy. The parties agree that there is no prospect of reconciliation.
In mid-2020 the respondent filed an Initial Petition for Divorce in the Family Court (City C Court) in Country B. That petition was served upon the respondent in mid-2020.
Each of the parties has a lawyer in City C for the purposes of the proceedings there. I have affidavits from each of them. Ms L is the applicant’s lawyer and Ms N is the respondent’s lawyer. Having regard to their evidence, it is clear that there is no dispute that divorce proceedings in Country B can take one of two forms – either uncontentious proceedings where a divorce order is granted and all other consequential matters are settled by agreement, or contentious proceedings. In the first case, once the parties have agreed upon all matters, their agreement is ratified by a judge and who pronounces the divorce.
Contentious proceedings, as one would expect, are more complex. The evidence of Ms N is that there are three types of contentious divorce proceedings namely:
a) Divorce accepted: the spouses agree on the pronouncement of the divorce and expressly accept it by a declaration dated and signed by their hands, but the court pronounces on measures relating to spouses and children, even if the spouses do not agree on these measures.
b) Divorce by definitive alteration of the marital bond: the spouses may apply for divorce without cause, after a minimum separation of two years, and the court decides on measures relating to spouses and children.
c) Divorce for fault: This is the most contentious divorce procedure where the spouses do not agree on the responsibility for the breakdown of the marriage and must prove the fault of the other spouse.
In her affidavit of evidence-in-chief, the applicant’s lawyer describes the procedures in slightly different terms, but in substance her description is to the same effect as the evidence of Ms N.
The proceedings commenced by the respondent in City C are of the third type, namely “divorce for fault”. It is common ground that irrespective of type, contentious divorce proceedings are conducted in two stages. The first stage is described as the non-conciliation stage. The second stage is referred to as the divorce stage. Ms L explains in her affidavit of evidence-in-chief (there is in the original):
12.Stage One is to pronounce the official separation of the parties, at which stage the Judge will also make interim determinations regarding the custody of children, the amount of child support and what financial support should be paid to for the spouse.
13. Stage One is performed by a […] Judge.
14. The second stage is referred to as the "Divorce Stage". ("Stage Two").
15. During Stage Two, a Judge will make final determinations on the issues of divorce.
16.Although at Stage Two a Judge hears the matter, the Judge does not rule on the terms of the division of property but appoints a […] Notary to divide all matrimonial property.
17.A Notary does not have Judicial power. The Notary can suggest the way the assets should be split, but if the parties do not reach agreement, then the case will return to Court and only a Judge can impose the division of assets.
18.If the parties do not agree on the value of assets contained in matrimonial property pool, then the asset will need to be valued by a Court appointed expert.
19.If there is property outside of [Country B], the […] Notary will appoint an independent expert in the relevant Jurisdiction to obtain the value.
The City C Court made an order in mid-2020 requiring the applicant and the respondent to appear in late 2020 for an attempt at conciliation. The respondent attended but the applicant did not. There is no dispute that the applicant had been served with the respondent’s proceedings and knew about them.
In late 2020 the City C Court made a non-conciliation order in the applicant’s absence about spousal maintenance, child support and parenting. As to parenting, the respondent was granted leave to relocate to Australia with the parties’ son. She was given the use of parties’ property located in Australia on the basis that she would be responsible for the monthly loan repayment and all related charges. The order went on to forbid the other spouse from disturbing the other in their home. These orders were in substance, interim orders until further orders were made.
In early 2021 the respondent returned to live in Australia with the parties’ son. They presently reside in the parties’ property in Brisbane. The respondent has met all mortgage, utilities and expenses associated with the property.
Contrary to the statement of agreed facts filed by the parties (which nominates the date as early 2021), the applicant’s Country B lawyer gives evidence that the applicant filed an appeal against the non-conciliation order made in City C some days later, in early 2021. He appealed against the whole of the non-conciliation order.
The appeal was heard in mid-2021. According to his lawyer’s evidence the applicant withdrew his opposition to the parties’ son living in Australia but maintained his opposition to the balance of the orders.
In late 2021 the local Court of Appeal (Court of Appeal of City C) upheld the first instance Court's decision and Stage One of the contentious divorce proceedings initiated by the respondent in mid-2020 was finalised. However, that did not finalise the contentious divorce proceedings in their entirety. Stage 2 was yet to be completed.
It seems clear from the evidence of the Country B lawyers that for stage 2 to commence one or other of the parties needed to initiate further proceedings with the first instance court in City C. That occurred in early 2022 when the respondent petitioned for at fault divorce.
In the meantime, in early 2022 the applicant's Australian solicitor wrote to the respondent's (lawyer) in Country B, inviting the respondent to participate in alternate dispute resolution so as to make a genuine attempt to reach an amicable, fair resolution of all family law matters, through negotiation.
In early 2022 the applicant's Australian solicitor wrote to the respondent's lawyer in Country B to seek confirmation that:
(a)the proceedings in Country B had concluded and the respondent had not initiated any further proceedings in Country B;
(b)the decisions of the City C Court and Court of Appeal in City C were only concerned with parental matters, including: spousal maintenance, child support and the respondent's relocation to Australia with the parties' child as well as time arrangements for the applicant; and
(c)the City C Court and Court of Appeal in City C made no orders regarding the division of property and assets between the parties.
Some months later, in early 2022 the respondent’s lawyer in City C replied pointing out that:
(a)the divorce proceedings between the parties included all aspects of parenting matters, property matters, spouse maintenance and child support, was the sole competence of the Country B jurisdiction according to the rules of private international law; and
(b)the liquidation of the parties' property, in accordance with Country B law, is to be done after the divorce, but at that moment was not of relevance, presumably because stage 2 had not been completed.
A short time later, in early 2022 the applicant's Australian solicitor wrote to the respondent's lawyer in City C and put them on notice that the applicant intended to initiate proceedings in the Federal Circuit and Family Court of Australia (Division 2) regarding the division of the parties’ property.
On or around three weeks later, in early 2022 the respondent filed a petition for at-fault divorce in the City C Court, Country B.
The applicant commenced his application in the Federal Circuit and Family Court of Australia (Division 2) on 28 April, 2022. He filed an amended application on 12 May, 2022. The respondent filed a response on 7 June, 2022 seeking an order that the application be dismissed or (in the alternative presumably) pursuant to s 45 of the Family Law Act 1975 (Cth), the application be permanently stayed. She also seeks her costs.
Notwithstanding the commencement of proceedings in Australia, proceedings have continued in Country B and in particular, the respondent has taken enforcement proceedings against the applicant in respect of the spousal maintenance orders and child support orders that were made in the form of the non-conciliation order.
THE LAW TO BE APPLIED
If the court is satisfied that Australia is a clearly inappropriate forum in which to determine the proceedings at issue between the parties, the court must stay them: Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247 – 248; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564; Henry v Henry (1996) 185 CLR 571. Such satisfaction is not necessarily easily achieved. In Voth the High Court explained, at 554:
First, a plaintiff who has regularly invoked the jurisdiction of a court has a prime facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction will provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised “with great care” or “extreme caution”.
The mere existence of proceedings in two different countries at the same time does not, of itself, constitute vexatious or oppressive conduct: Lan & Hao (No 2) (2017) FLC 93-795 at [39]. Earlier, the Full Court in Henry had made similar observations, at 590 – 591 (footnotes omitted):
Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia. In Union Steamship Co of New Zealand Ltd v The Caradale, Dixon J observed of that latter situation that “[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration”. From the parties’ point of view, there is no less - perhaps, considerably more - inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.
It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.
An Australian court will be a clearly inappropriate forum where the Australian proceedings are found to be “oppressive” or “vexatious” or an “abuse of process” as explained in Oceanic Sun and Voth and illuminated in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391 – 392 (footnotes omitted). In Henry, at 592 – 593, the High Court identified some matters that might be considered to assist when determining if proceedings are likely to be oppressive, vexatious or an abuse of process (footnotes omitted):
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.
It is also useful to note that the exercise to be undertaken is not a balancing exercise. The majority in Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 said at 520 – 521 (footnotes omitted) :
It was not a question of striking a balance between competing considerations. Rather, it was the task of the Renault companies as applicants on the motion to demonstrate that a trial in New South Wales would be productive of injustice, because it 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.
CONSIDERATION
It is uncontentious that the courts of Country B have jurisdiction to entertain proceedings between these parties arising out of the breakdown of the matrimonial relationship. That must be so because at no point in the proceedings in Country B has the applicant objected to the jurisdiction of the courts of that country dealing with the matters with which they have purported to deal. Indeed, as King’s Counsel for the respondent points out, in his most recently filed response to the respondent’s stage 2 petition, he makes no objection to that court’s jurisdiction.
It is also seemingly uncontentious that the courts of Country B and Australia can deal completely with the disputes arising out of the breakdown of the parties’ marital relationship. It is not right to say, as the applicant seeks to argue, that the proceedings in Country B do not concern property adjustment. I have set out the practice and procedure above according to the applicant’s lawyer’s evidence. It is clear that the court in City C can and will deal with the division of the parties’ property in due course although in a way which is different to the way in which it would be dealt with in Australia. In that respect, it should be borne in mind that the parties’ property does not simply consist of real property in Australia. The applicant has bank accounts, a motor vehicle and superannuation in Country B. He has an interest in a property in Country E. The respondent has an interest in a property in Country H and bank accounts there. It is not suggested that the Court in City C cannot deal with all of these assets, just as this court might deal with them all under the Family Law Act 1975 (Cth).
Nor is it right to say, I think, that the proceedings in Country B were complete upon the dismissal of the applicant’s appeal against the non-conciliation order. The terms of the non-conciliation order make it clear that it was intended to be an interim order (it uses the term “provisional measures”). Its terms make it clear that the respondent had in substance, an option to continue the proceedings by filing a further petition to commence the second stage of the proceedings. If she did not do so within 30 months of the making of the non-conciliation order, then all of the provisions in the ruling “shall be deemed null and void”. It is clear therefore, that to preserve the operation of the non-conciliation order and to advance the proceedings to some form of final determination, it was necessary for the respondent to file a subsequent petition.
The dismissal of the applicant’s appeal against the non-conciliation order did not finalise the proceedings in their entirety. That must be accepted given the applicant’s own statements (by his lawyer) in his document entitled “CONCLUSIONS IN REPLY No.1” (exhibit 2 before me) as follows (page3/33):
By reiterated request served by bailiff on […] 2022 to the husband, [Ms Eames] thus referred the matter to the Family Court for the purpose of continuing the procedure and to request the pronouncement of the divorce on the basis of article 2 four two of the civil code applicable in [Country B].
(emphasis added)
I accept the respondent’s submission that in those circumstances, it is prima facie vexatious and oppressive, in the strict sense of those terms, to commence proceedings in this country. But as I have set out above, that is not the end of the matter.
I accept that the proceedings in City C are well advanced. Whilst the respondent initiated stage 2 of the divorce proceedings in early 2022 the delay in those proceedings is largely accounted for by the applicant’s delay in delivering his “CONCLUSIONS IN REPLY No.1”. It is apparent from the evidence that both parties have now filed documents outlining their cases for the final dissolution of their marriage, including property orders. In his “CONCLUSIONS IN REPLY No.1” the applicant does not object to the exercise of jurisdiction by the court in City C, but rather accepts the court’s jurisdiction to resolve the parties’ disputes. Further, he seeks relief for property adjustment (see part III section 2) and spousal maintenance (see part III section 3). Both parties have exchanged substantial documentation in those proceedings.
Further, the applicant has not applied for a stay of the proceedings in Country B nor did he give the evidence of an intention to do so. He seeks no injunctive relief against the respondent in this court requiring her to cease prosecuting the proceedings in that country. Thus, on the evidence I find:
(a)There are proceedings in Country B and proceedings in Australia that concern the same matter, namely the orders to be made arising from the breakdown of the parties’ marital relationship;
(b)the courts in each country have jurisdiction to deal with the matter;
(c)the courts in each country have power to make orders that resolve all of the disputes between the parties arising out of the matter;
(d)the applicant commenced his proceedings in Australia after the respondent initiated contentious proceedings for divorce in Country B and knowing of their existence;
(e)the applicant seeks relief by way of property adjustment between he and the respondent in both this court and the court in Country B. He has not objected to the exercise of jurisdiction or power by the court in Country B;
(f)the applicant expresses no intention to seek to restrain the respondent from prosecuting her proceedings in Country B.
In those circumstances, there is a very real risk that the same issues will be litigated in the courts of two different countries and there is the very real possibility of two different outcomes. Such a result is undesirable and is prima facie vexatious.
The evidence demonstrates that the respondent has incurred considerable expense in pursuing her proceedings in Country B she has paid the fee for both stage 1 and stage 2 of the proceedings. No further fees are payable unless there is an appeal in those proceedings. The respondent’s unchallenged evidence is that she cannot afford to pay lawyers to assist her in both jurisdictions.
Although they were commenced some time ago, the proceedings in this court are not well advanced. They were commenced after the respondent initiated the second stage of the proceedings in Country B. The respondent has always contended that these proceedings are ill-conceived because Australia is a clearly inappropriate forum for a resolution of the parties’ dispute having regard to the fact that she has proceedings on foot in Country B.
The question of enforcement is not easily answered. I have the benefit of a report from a single expert Ms O. She gave a report in early 2023 dealing with various matters thought to be relevant to the application before me. I will not set out her evidence in full, but it is clear that the answer to the question of which law will be applied in determining a distribution of the parties’ property is not straightforward. Potentially it could be the applicable law of Country B or alternatively the law of Australia depending upon various matters. And, depending upon which law is applied any decisions taken by the Federal Circuit and Family Court of Australia (Division 1) or the Federal Circuit and Family Court of Australia (Division 2) will not automatically be binding on a judge in City C although there may be circumstances where it is so binding. On the other hand, the decision of the City C Court is not capable of registration in Australia. As King’s Counsel for the respondent submitted:
14. This dilemma was considered in In Pierson & Romilly [2019] Fam CA 259 (which concerned a consideration of France/ Australia orders). It was accepted that there would be difficulty in enforcing decrees either way. At [23] - [24] problems of enforcing an Australian decree in France were discussed; and at [25] - [28] problems of enforcing a French order in Australia. Despite being satisfied that an order of a French Court for transfer to the wife of an Australian real property would be unenforceable at common law in Australia, Stevenson J nevertheless decided at [32] that there were potential difficulties with enforcement in each of the jurisdictions, and it was not necessary to make findings as to enforceability. His Honour regarded the factor as largely neutral. The Australian proceedings were stayed, by reason of application of the other factors, summarised at para. [56] - the wife has delayed too long in commencing these proceedings and participated in the French litigation to such an extent that there should be a permanent stay. […]
15. An appeal was dismissed: [2020] FamCAFC 91. The Full Court discussed the trial judge's conclusion at [32] at paragraphs [46] - [55]. Reference was also made to the potential application of s. 78 Family Law Act.
It was not suggested in submissions that the position identified in Pierson & Romilly has changed in any way or did not represent the difficulties of enforcement of orders in this case. I conclude, as did Stevenson J in Pierson & Romilly that the question of recognition and enforcement of each country’s decrees in the other is a neutral factor.
CONCLUSION
For the reasons discussed above, I conclude that this court is a clearly inappropriate forum for a resolution of the parties’ disputes arising from the breakdown of their marital relationship. The matters I have referred to above lead to the conclusion that the commencement of proceedings by the applicant in this court is oppressive in the sense that they will be seriously and unfairly burdensome, prejudicial or damaging for the respondent, particularly given that the evidence demonstrates that he seemingly intends to litigate the same issues in parallel jurisdictions. Moreover, such a course is vexatious, in the sense that it will be productive of serious and unjustified trouble and harassment.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 17 March 2023
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