Penhall & Gibbens
[2021] FedCFamC1F 6
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Penhall & Gibbens [2021] FedCFamC1F 6
File number(s): CAC 2790 of 2020 Judgment of: GILL J Date of judgment: 2 September 2021 Catchwords: FAMILY LAW – DIVORCE – Jurisdiction – Forum non conveniens – Whether Australia is an appropriate forum to determine divorce proceedings – Proceedings on foot in France and Australia – Where French proceedings commenced first – Whether continuation of Australian proceedings would be vexatious or oppressive – Where respondent subject to prior anti-suit injunction relating to conduct of parenting and property proceedings in France – Australia not a clearly inappropriate forum Cases cited: Henry & Henry (1996) 185 CLR 571
Navarro & Jurado (2010) 247 FLR 374
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Penhall & Gibbens [2021] FamCA 210
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Number of paragraphs: 22 Date of hearing: 25 August 2021 Place: Canberra Solicitor for the Applicant: Virage Legal Family Lawyers Solicitor for the Respondent: Self-representing Solicitor for the Independent Children's Lawyer: Jeanine Lloyd & Associates ORDERS
CAC 2790 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PENHALL
Applicant
AND: MS GIBBENS
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
2 SEPTEMBER 2021
THE COURT ORDERS:
1.That this Court be declared to be the appropriate forum for the conduct of divorce proceedings commenced by the applicant by filing an Application for Divorce on 22 June 2021 with the Federal Circuit Court of Australia (Canberra) (CAC1315/2021).
2.That the Application for Divorce filed 22 June 2021 (CAC1215/2021) be heard before Deputy Registrar Benedict Porter on 10 September 2021 at 9:30am.
3.An interpreter in the French language is to be retained to assist in the divorce proceedings.
4.That the respondent be restrained by injunction from taking any steps to continue proceedings in any Court or Tribunal in France with respect to divorce or related matters.
5.That, within 14 days, the respondent shall do all acts and sign all documents to cause the hearing listed on 21 September 2021 at Tribunal Judiciaire De C City (“Judicial Tribunal of C City”) in France to be vacated and provide to the applicant’s solicitor copies of any documents and correspondence evidencing the compliance with this Order.
6.That, within 14 days, the respondent shall do all acts and sign all documents to withdraw all the Applications or any other initiating documents she has lodged with any Court or Tribunal in France with respect to any family law proceedings, including parenting, property and divorce proceedings, and provide to the applicant’s solicitor copies of any documents and correspondence evidencing the compliance with this Order and the confirmation from the relevant Court or Tribunal in France of the discontinuance of the proceedings referred to in this Order.
7.The costs of this application are reserved to the final hearing of the case.
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 Penhall & Gibbens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
The background to this case is set out in the judgment of 8 April 2021 (Penhall & Gibbens [2021] FamCA 210). In that judgment the respondent wife was restrained from conducting property or child related proceedings in France. Although she had also commenced divorce proceedings in France, she was not at that stage restrained from prosecuting those on the basis that there were no divorce proceedings on foot in Australia.
Since that judgment the applicant husband has commenced divorce proceedings, filing an Application for Divorce on 22 June 2021.
That application was listed before Registrar Dixon on 6 August 2021, at which time the wife expressed her objection to jurisdiction, on the basis that there are divorce proceedings on foot in France. While there is commonality in the parties’ desire to divorce, they are in sharp dispute as to the forum. This is despite the uncontroversial position that in either France or Australia the divorce will be conducted according to Australian law.
The issue of forum falls to be determined on answering the question of whether Australia is a clearly inappropriate forum, noting that all of the other marriage related litigation between the parties is to be conducted in Australia by virtue of the orders made on 8 April 2021.
MATERIAL RELIED UPON
The applicant husband relied upon:
(a)Application in a Case of Mr Penhall filed on 5 August 2021;
(b)Affidavit of Mr Penhall filed on 4 August 2021; and
(c)Application for Divorce of Mr Penhall filed on 22 June 2021.
The respondent wife relied upon:
(a)Response to an Application in Case of Ms Gibbens filed 23 August 2021;
(b)Affidavit of Ms Gibbens filed 23 August 2021; and
(c)Response to divorce filed 5 August 2021.
The applicable law
The applicable principles were set out in the previous judgment. In short, the issue of forum requires the determination of the question of whether Australia is a clearly inappropriate forum. That is not a task that can be equated to a comparison of the relative merits of the competing forums, but falls to be determined on examining the merits of Australia as a forum (Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558, 565 (“Voth”); see Navarro v Jurado (2010) 247 FLR 374 at [138]–[166]). This, in turn, requires a consideration of whether the conduct of the proceedings in Australia would be vexatious or oppressive, being seriously and unfairly burdensome, under circumstances where parties have a prima facie right to conduct proceedings where they have regularly invoked the jurisdiction (Henry & Henry (1996) 185 CLR 571 at 587 (“Henry”), citing Voth (1990) 171 CLR 538 and Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197), such as the case of the wife in France in respect of the divorce.
In Henry it was observed (at 588–589) that the prima facie right is limited in effect, and that the onus remains on the party seeking to establish Australia as being a forum that is clearly inappropriate.
The wife emphasised a number of matters in asserting that Australia is a clearly inappropriate forum. She asserted that orders from Australia would require translation into French, and would result in a slower uptake on the part of any bureaucracy dealing with the fact of the divorce. She observed that she has engaged lawyers in France and incurred expense. It may also be seen that the proceedings in France for divorce seem well advanced. Finally, she observed that she commenced the divorce proceedings well in advance of the husband commencing proceedings in Australia, and that he commenced his proceedings when aware of the proceedings being conducted in France. Of these matters it is the duplication of the proceedings by the commencement of divorce proceedings in Australia that has the potential to undermine the appropriateness of Australia as the forum.
In Henry it was observed (at 591) that:
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.
However, there are matters that point in the other direction, and toward the conclusion that Australia is not a clearly inappropriate forum.
Firstly, all of the other proceedings concerning the breakdown of the relationship are being conducted here, and are unable to be conducted in France, by virtue of the anti-suit injunctions that restrain the wife from conducting those proceedings in France. Australia is the forum within which the parties may wholly dispose of their dispute if they are also to deal with the divorce proceedings here.
Secondly, the wife’s contention was previously that the divorce proceedings in France are unable to be separated from other aspects of the breakdown of the relationship, meaning that a court in France would not refrain from dealing with other aspects of the dispute between the parties. As observed in the previous judgment, this proposition was not established. However, there is good reason to now be concerned that the continuation of the divorce proceedings in France carries with it the prospect that other aspects of the parties’ dispute will be dealt with despite the anti-suit injunctions. Where this prospect arises it points to the continuation of the proceedings in France as being oppressive, rather than the commencement of the divorce proceedings in Australia being oppressive.
Although the wife concedes that her initial application to the court in C City was for relief in respect of all matters, she now asserts that the C City court will only act to dispose of the divorce and considers itself incompetent in respect of the child related and property related matters. The evidence presented by her only supports this contention in part.
At Annexure F to her affidavit filed 23 August 2021, the wife annexes the orders of the C City court and the translation of those orders. Those documents show the matter listed for 21 September 2021 for potential resolution. They appear to contain orders relating to the payment of the mortgage of the former matrimonial home, along with occupation of the home, and make orders for the return of clothing and personal items. These matters appear to stray beyond the mere dealing with a divorce.
More importantly, while the C City court specifically observes that it is not competent to resolve the child-related issues, it makes no such observation in relation to resolving the property issues between the parties.
These matters leave open the prospect that despite the conduct of the property proceedings in Australia, and the anti-suit injunction restraining the wife, that the C City court will deal with matters beyond the mere divorce and traverse issues otherwise the subject of the Australian proceedings.
Where the conduct of the divorce in Australia avoids such a prospect, and where the conduct of the divorce in Australia lends itself to the prompt resolution of the divorce (given the agreed position of the parties that they have now been separated in excess of twelve months, and both desire the divorce), where the parties are already participating in litigation within the Australian family law system, and where the wife has good command of the English language and will be provided with an interpreter as necessary, the Australian divorce proceedings should not be regarded as oppressive in the Voth sense, and Australia should not be considered to be a clearly inappropriate forum.
Further, under those circumstances, the proceedings in France for divorce become oppressive and justify the extension of the anti-suit injunctions to cover the divorce as well.
Ancillary relief
The husband sought orders in aid of the anti-suit injunctions requiring the wife to both take steps to bring the French proceedings to an end and to evidence that she has done so.
Although the wife represents to this court that she has provided to the C City court the orders of this court restraining her, and has acted consistently with the restraints, and although this court is not in a position to determine otherwise, the nature of the orders made by the C City court, and in particular their failure to eschew jurisdiction in the property proceedings, warrant the further steps being taken by the wife to ensure the effectiveness of the antisuit injunctions. The steps proposed by the husband were not identified as unduly burdensome by the wife, and appear well adapted to supporting the anti-suit injunctions. Such orders should be made.
Costs
The husband pursues costs, while the wife asserts that there should be no order as to costs. The issue of costs in respect of this aspect of the proceedings should be reserved to the final hearing of the matter.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 2 September 2021
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