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:…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Penhall & Gibbens

Details

AGLC: Penhall & Gibbens [2021] FedCFamC1F 6
Case: [2021] FedCFamC1F 6
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Mr Penhall and Ms Gibbens regarding the jurisdiction for their divorce proceedings. The Federal Circuit and Family Court of Australia (Division 1) was tasked with determining whether Australia was an appropriate forum to decide the divorce proceedings. This was a significant issue as divorce proceedings had already been initiated in France by Ms Gibbens, while Mr Penhall had commenced divorce proceedings in Australia. The court was required to consider whether Australia was a clearly inappropriate forum for the divorce proceedings, taking into account the circumstances of the case and the anti-suit injunctions that had been imposed on Ms Gibbens in relation to other family law matters.

The court began by reviewing the applicable law, which established that the question of whether Australia was a clearly inappropriate forum should be determined by examining the merits of Australia as a forum and whether the conduct of the proceedings in Australia would be vexatious or oppressive. The court observed that the onus was on the party seeking to establish Australia as a clearly inappropriate forum.

Ms Gibbens argued that Australia was a clearly inappropriate forum on the basis 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 divorce. Additionally, she had engaged lawyers in France and incurred expenses, and the proceedings in France for divorce seemed well advanced. However, the court found that these factors did not necessarily make Australia a clearly inappropriate forum for the divorce proceedings.

The court found that all other proceedings concerning the breakdown of the relationship were being conducted in Australia, and Australia was the forum within which the parties could wholly dispose of their dispute if they were also to deal with the divorce proceedings in Australia. Furthermore, the wife's contention that the divorce proceedings in France were unable to be separated from other aspects of the breakdown of the relationship was not established. The court was concerned that the continuation of the divorce proceedings in France carried the prospect that other aspects of the parties' dispute would be dealt with, despite the anti-suit injunctions. Therefore, the court concluded that Australia was not a clearly inappropriate forum for the divorce proceedings.

In light of the above, the court made orders declaring that the Federal Circuit and Family Court of Australia (Division 1) was the appropriate forum for the divorce proceedings. The court also restrained Ms Gibbens from taking any steps to continue proceedings in any court or tribunal in France with respect to divorce or related matters. The court further ordered that Ms Gibbens take specific steps to vacate the hearing listed on 21 September 2021 at the Tribunal Judiciaire De C City in France and to withdraw all other initiating documents she had lodged with any court or tribunal in France with respect to any family law proceedings, including parenting, property, and divorce proceedings.

In conclusion, the Federal Circuit and Family Court of Australia (Division 1) found that Australia was not a clearly inappropriate forum for the divorce proceedings between Mr Penhall and Ms Gibbens. The court made orders to ensure that the divorce proceedings would be conducted in Australia, and that Ms Gibbens complied with the anti-suit injunctions by vacating the hearing in France and withdrawing any other initiating documents she had lodged in France.

Orders