Penhall & Gibbens
[2021] FamCA 210
•8 April 2021
FAMILY COURT OF AUSTRALIA
Penhall & Gibbens [2021] FamCA 210
File number(s): CAC 2790 of 2020 Judgment of: GILL J Date of judgment: 8 April 2021 Catchwords: FAMILY LAW – PRIVATE INTERNATIONAL LAW – forum non conveniens – anti-suit injunction – property and parenting proceedings in Australia and France – test to be applied in parenting and property proceedings – divorce proceedings commenced in France but not in Australia – anti-suit injunction not granted in respect of divorce proceedings Legislation: Family Law Act 1975 (Cth) Cases cited: Pascarl & Oxley (2013) FLC 93-536
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
ZP v PS (1994) 181 CLR 639
Number of paragraphs: 12 Date of hearing: 8 April 2021 Place: Canberra Solicitor for the Applicant: Virage Legal Family Lawyers Counsel for the Respondent: Mr Stagg Solicitor for the Respondent: Legal Aid ACT ORDERS
CAC 2790 of 2020 BETWEEN: MR PENHALL
Applicant
AND: MS GIBBENS
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
8 APRIL 2021
THE COURT ORDERS THAT:
1.The wife is hereby restrained from taking any step to continue proceedings in France in relation to the marriage of the parties, insofar as those proceedings deal with, or relate to, the property of the parties or either of them or the children, X, born … 2012, and Y, born … 2015.
2.Pursuant to s 68L of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for X, born … 2012 and Y, born … 2015, and the Legal Aid Office of the Australian Capital Territory is requested to provide such representation.
3.The parties are to provide to the Canberra office of the Legal Aid Office of the Australian Capital Territory at 2 Allsop Street Canberra City ACT 2601 or GPO Box 512 Canberra ACT 2601 forthwith copies of all documents thus far filed by them in these proceedings.
4.Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.
5.Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
6.Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.
IT IS NOTED THAT
7.These are proceedings that involve an application by the mother, a French citizen, to relocate permanently to France with her two children, who are also French citizens as well as Australian citizens. Accordingly, as the matter involves issues of international relocation this is a matter that will be given some priority within the Court list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Penhall & Gibbens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J
These proceedings concern issues relating to the appropriate forum for the determination of the divorce, property and child related proceedings of the parties. On 30 September 2020, the wife commenced proceedings in relation to parenting and divorce in the Tribunal in B City, being proceedings that he asserts he did not become aware of until 11 December 2020.
On 1 February 2021, the wife commenced proceedings in the C City Court of Justice, being divorce proceedings and proceedings in relation to parenting and property. The husband asserts that he become aware of those proceedings on 4 March 2021. Meanwhile, prior to the first date that the husband says he become aware of any proceedings in France he commenced proceedings in the Federal Circuit Court of Australia in relation to parenting and property on 8 December 2020.
There are no divorce proceedings on foot in Australia. On the husband's case as to the date of separation, he would be entitled to bring divorce proceedings. As I understand the wife's case in relation to their date of separation the parties would not yet have been separated for 12 months and she would be unable to bring such proceedings in Australia at present.
The wife seeks orders from this Court that will bring to an end the proceedings in Australia in relation to the various matrimonial disputes between the parties on the basis that she says that those proceedings should take place in France.
I turn firstly to the issue of the property proceedings between the parties. The wife seeks no particular orders, it being her position that the proceedings should not take place here. The father seeks orders for the division of the real property that is held in Australia and asserts that he will not pursue, and indeed has not yet pursued orders in respect to any real property that he asserts are held by the mother in France. That is, the orders that he seeks from this Court are such that the subject matter of the orders, being real property held in Australia, could be dealt with by this Court either in personam or in rem as the property is held in Australia. The fact that he asserts that he will pursue no orders in relation to real property in France means that the Court is unlikely to be troubled with the prospect of making orders in personam to deal with such property in France.
He makes his application for property under circumstances where the parties are both in Australia and have been for a considerable period of time. The parties are both citizens of Australia, although the mother holds citizenship in France. The mother has been in Australia since 2009, except for a period of approximately 12 months. She and the children of the relationship, and for part of that period the husband, lived in France in 2015 and 2016. It may also be observed that the parties and the children have variously travelled to France since the mother first commenced to stay in Australia in 2009.
The parties are both proficient in the English language, although it must be conceded that the mother requires the support of an interpreter in order to deal with technical aspects of language which might be covered in court proceedings. The parties, it may be understood from child-related proceedings conducted before Senior Registrar Evans, are both presently in employment in Australia and both hold accommodation.
It is correct to say, as was identified by the solicitor for the father, that the question to be resolved in relation to the property proceedings and forum is whether or not Australia is a clearly inappropriate forum, such being the test set out in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. As identified again by the solicitor for the father, the consideration of the Australian jurisdiction is the key consideration to determining whether or not it is a clearly inappropriate forum. Under the circumstances that I have just identified, despite it being the case that the mother does not regard Australia as her home, and despite the fact that English is not her native language, and despite the fact that she lacks family support in Australia, it cannot be said that Australia is a clearly inappropriate forum for dealing with the property proceedings. On that basis the property proceedings may continue in Australia.
It may also be observed that the continuation of French proceedings regarding the property of the marriage in the face of the conduct of such proceedings in Australia would be oppressive in a sense required to justify a restraint on their continuation and an order will be made accordingly to restrain the wife from continuing to prosecute such proceedings in France.
A different test is applicable in relation to the child-related proceedings. The solicitor for the father again correctly identified that the High Court had set out the appropriate test in ZP v PS (1994) 181 CLR 639 and the Full Court has set out the appropriate test in Pascarl & Oxley (2013) FLC 93-536. It is not the clearly inappropriate forum test. Rather, the test is derived from the requirement of the Court to make such order as will best promote and protect the interests of the children. Forum is accordingly dictated, absent any statutory exclusions, by what is in the best interests of the children the subject of the litigation, X and Y.
There are a number of agreed factual matters in this case. The children have been in Australia all of their lives save for a period of approximately 12 months in 2015 when they lived in France with their mother and for a period with their father. They have of course also spent other periods of time in France from time to time during their lives. The mother has been in Australia, subject to the above observations, since 2009 and the parties have been in a relationship in Australia until separation from 2011, again subject to the above identified periods in France. The children and the parents are all citizens of Australia, although the children I am told and the mother hold dual citizenship with France. All of the parties and the children are currently in Australia. Those matters are sufficient to establish that it is in the best interests of the children for the proceedings to be conducted in Australia. Correspondingly, allowing proceedings in relation to the children to continue to be conducted in France would be oppressive and should be restrained.
A rather less straightforward question emerges as to the conduct of divorce proceedings in France as commenced by the mother. It has been asserted, but not yet established, that the divorce proceedings are inseparable from the child and property proceedings. It may be observed that no divorce application has been made here. On the mother's case as put forward it could not be. Accordingly, there are no parallel proceedings in Australia which would render the continuation of the divorce proceedings insofar as they merely relate to divorce in France as being oppressive. It may be observed that the conduct of divorce proceedings in France is certainly inconvenient. It may also be observed that in the summons in relation to divorce proceedings it has been identified that the law, or the appropriate law, to be applied in France in respect of the divorce of these parties is Australian law. Accordingly, there would be a requirement that the parties be separated for a period of 12 months, a matter which, as I understand the mother's case, is not asserted by her. Should divorce proceedings be commenced here, again there will arise an issue as to the correct forum, and the conduct of parallel proceedings between the two jurisdictions. It may well constitute a matter which is oppressive. That is a matter which may be open for reconsideration should a divorce be commenced in Australia.
However, despite the father's pursuit of an anti-suit injunction to prevent the conduct of the divorce in France, whilst so ever there are no such proceedings on foot in Australia I am unable to determine that the French proceedings are oppressive and so will not restrain those by means of an anti-suit injunction.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 19 April 2021
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