Pen & Vun
[2022] FedCFamC1F 678
Federal Circuit and Family Court of Australia
(DIVISION 1)
Pen & Vun [2022] FedCFamC1F 678
File number(s): PAC 3665 of 2018 Judgment of: HARPER J Date of judgment: 7 September 2022 Catchwords: FAMILY LAW – JURISDICTION – Forum non conveniens – Where wife commenced property proceedings in both Australia and Country D – Husband seeks permanent stay of Australian proceedings – Property located in Country D – No evidence of property in Australia – No property adjustment orders made in this Court enforceable or recognised in Country D – Where Australia is a clearly inappropriate forum – Whether Australian property proceedings are oppressive or vexatious – Order made for permanent stay of Australian proceedings. Cases cited: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 333
Navarro & Jurado (2010) 247 FLR 374; [2010] FamCAFC 210
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; (1988) 62 ALJR 389
Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55
Davies, Martin et al, Ngyh’s Conflict of Laws in Australia (LexisNexis Butterworths, 8th edition, 2010)
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 25 August 2022 The Applicant: Litigant in person Counsel for the Respondent: Mr Chen Solicitor for the Respondent: Ausjuris Legal Pty Ltd ORDERS
PAC 3665 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PEN
Applicant
AND: MR VUN
Respondent
order made by:
HARPER J
DATE OF ORDER:
7 September 2022
THE COURT ORDERS THAT:
1.The Applicant Wife’s proceedings for property adjustment orders in this Court be permanently stayed.
2.In the event there is no application for costs filed within 28 days of the date of these orders, there shall be no order as to costs.
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 Pen & Vun is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J
INTRODUCTION
These are property proceedings between the Applicant Wife (“the wife”) and the Respondent Husband (“the husband”). The husband applies for a permanent stay of these proceedings, on the basis that this Court is a clearly inappropriate forum.
BRIEF BACKGROUND
The husband was born in Country D in 1966, and the wife was born in Country D in 1979.
The parties were married in Australia. They separated on 22 September 2017.
The parties have one child, X, born in 2018 (“the child”).
The wife currently resides in Sydney, Australia with the child and her two children from previous marriages, aged 19 years and 15 years. She is currently on a bridging visa for permanent residency in Australia.
The husband is an Australian citizen and ordinarily resides in Sydney, Australia. However, he is currently in Country D.
The husband claims to be terminally ill.
PROCEDURAL HISTORY
On or about late 2017, the City E Court, F Region, Country D ("the Country D Court") ordered the wife to pay the husband about $1.2 million (“the $1.2 million judgment”).
In early 2018, the wife filed an appeal against the $1.2 million judgment in a different court of Country D, (F Region Court”).
On 7 August 2018, the wife filed an Application for Final Orders, seeking parenting orders, in the Federal Circuit Court (as it was then).
On 27 September 2018, the wife commenced proceedings in Country D seeking divorce, property and parenting orders. She withdrew these proceedings on 25 March 2019.
On 23 May 2019, Judge Harman made orders that the wife have sole parental responsibility for the child and that the child live with the wife.
On 4 May 2020, the wife filed an Application for Final Orders seeking orders for property settlement, in the Federal Circuit Court of Australia (as it was then).
On late 2020, the F Region Court dismissed the wife’s appeal against the $1.2 million judgment.
On 22 April 2021, the husband filed an Application in a Proceeding seeking a permanent stay of the wife’s property proceedings in Australia.
In late 2021, the wife filed a further appeal in a court in Country D against the late 2020 judgment. This appeal remains ongoing.
On or around late 2021, the wife commenced further proceedings in the Country D Court seeking divorce, property division and parenting orders. That application was rejected for filing, as the form was non-compliant.
In early 2022, the wife commenced further proceedings in the Country D Court seeking divorce, property division and parenting orders.
On 13 May 2022, the husband filed an Application for Divorce in this Court.
In mid-2022, the wife made an application to the Country D Court for property preservation requesting that the husband's property in Country D be preserved pending judgment. Shortly after, the Country D Court ordered that husband’s property be preserved, pending judgment.
The property proceedings in the Country D Court are ongoing.
In mid-2022, a Deputy Registrar made a divorce order to take effect.
The matter was referred to my chambers for urgent determination. On account of the husband’s ill health, the matter was listed for interim hearing before me on 25 August 2022.
APPLICABLE PRINCIPLES
The Court possesses power to stay or dismiss proceedings on grounds of forum non conveniens as an aspect of the inherent or implied power of every court, in the absence of some statutory provision to the same effect, to prevent its own processes being used to bring about injustice: Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 241–242 (Deane J) (“Oceanic Sun Line”); Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”) at 554 (Mason CJ, Deane, Dawson, and Gaudron JJ); CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391. As Oceanic Sun Line makes clear at 247–248, the power should be exercised with great caution and only in a clear case.
The High Court in Voth expounded the following relevant propositions 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 would 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 focus is not upon the appropriateness or comparative appropriateness of the foreign forum, but on assessing whether there are enough factors indicating that the local forum is clearly inappropriate, in which case a stay should be granted: Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; Navarro & Jurado (2010) 247 FLR 374 at [166] citing Martin Davies et al, Ngyh’s Conflict of Laws in Australia (LexisNexis Butterworths, 8th edition, 2010) at [8.29] (repeated in the 10th edition). As Deane J put it in Oceanic Sun Line at 242, “the clear inappropriateness of the local forum may justify dismissal or a stay. The mere fact that some foreign tribunal would represent a ‘more appropriate’ forum will not”.
There was no dispute that the material assets are located in Country D. Country D courts have already exercised jurisdiction in relation to them. The wife argued that the husband has some directorships in Australia, but these are not a form of property. The husband gave evidence he has a de minimis amount in an Australian bank account. Otherwise, the wife has not demonstrated any credible basis to conclude the husband has undisclosed assets in Australia. No property adjustment orders made by this court, in respect of assets in Country D, will be enforceable or recognised in Country D.
In answers to questions from the bench, the wife, who was self-represented through an interpreter, made clear that she presses her claims in this Court because she is dissatisfied with the outcome in the Country D courts.
Although the wife seemed to contest the husband’s medical condition, her position was ambiguous. I accept the husband is seriously ill, and the proceedings in this Court are unnecessarily burdensome for this reason.
The wife’s proceedings in this Court are oppressive and vexatious for the above reasons. I am satisfied that this Court is a clearly in appropriate forum for property adjustment orders and the wife’s proceedings should be permanently stayed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 7 September 2022
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