PIERSON & ROMILLY - [2019] FamCA 259

FAMILY COURT OF AUSTRALIA

PIERSON & ROMILLY

[2019] FamCA 259

FAMILY LAW – PROPERTY – FORUM – Application for orders under s 79 of the Family Law Act 1975 (Cth) – Where there are already proceedings on foot in France – Where the parties’ signed a pre-nuptial agreement in France – Where the parties’ divorce has been granted by a French Court – Where the wife has engaged in the litigation in France – Where the husband seeks that the Australian proceedings be stayed – Whether Australia is a “clearly inappropriate forum”.

Family Law Act 1975 (Cth)
Foreign Judgments Enforcement Act 1991 (Cth)

Henry v Henry (1996) 185 CLR 571
Pagliotti v Hartner (2009) 41 FamLR 41

APPLICANT:

Ms Pierson

RESPONDENT:

Mr Romilly

FILE NUMBER:

SYC

5612

2017

DATE DELIVERED:

26 April 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

25 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Goodchild

SOLICITOR FOR THE APPLICANT:

GJ Gooden, Solicitor and Notary Public

COUNSEL FOR THE RESPONDENT:

Ms Beck

SOLICITOR FOR THE RESPONDENT:

Dezarnaulds Basten Solicitors

Orders

The applicant’s Further Amended Initiating Application filed on 21 May 2018 be stayed permanently.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pierson & Romilly has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5612 of 2017

Ms Pierson

Applicant

And

Mr Romilly

Respondent

REASONS FOR JUDGMENT

The proceedings

Ms Pierson and Mr Romilly are parties to litigation arising from the breakdown of their marriage in both France and Australia. By a Response to Initiating Application filed on 19 December 2017 the husband sought the following orders inter alia:
1.That the Application filed on 5 September 2017 by the applicant be dismissed or permanently stayed on the following grounds:
a. res judicata and/or
b.forum non convenience (Australia being a clearly inappropriate forum and/or
c. abuse of process.
At the hearing of this threshold issue on 25 February 2019 counsel for the husband abandoned the res judicata ground for dismissal or permanent stay of the wife's Initiating Application. A joint report by two experts in French law made clear that there is no substance to this submission. Accordingly the issue for determination is whether Australia is "a clearly inappropriate forum", as considered by the High Court of Australia in Henry v Henry (1996) 185 CLR 571. Counsel for the husband did not seem to pursue the submission that the proceedings instituted by the wife in the Family Court of Australia are…

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 PIERSON & ROMILLY

Details

AGLC: PIERSON & ROMILLY [2019] FamCA 259
Case: [2019] FamCA 259
Decision Date: 26 April 2019

CaseChat Overview and Summary

In this matter before Stevenson J, the applicant sought a permanent stay of proceedings initiated by the respondent. The dispute concerned proceedings arising out of the marital relationship between the parties, specifically relating to their property.

The court was required to determine whether Australia was a "clearly inappropriate forum" for the respondent's proceedings. This involved considering various factors relevant to matrimonial causes, including the jurisdiction of Australian and foreign courts, the recognition of their respective orders, the ease of enforcement of orders in other countries, and which forum could most effectively resolve the entirety of the parties' controversy. Further considerations included the order and stage of proceedings, costs incurred, the parties' connections to each jurisdiction, the issues on which relief might depend, and the parties' ability to participate equally in proceedings.

Stevenson J applied the principles outlined by the High Court in *Henry v Henry* (1996) 185 CLR 571, which provides a non-exhaustive list of factors for determining a "clearly inappropriate forum" issue. The court noted that the respondent's application fell within the statutory definition of a "matrimonial cause" under section 4(1)(ca) of the relevant Act, as it concerned property proceedings arising out of the marital relationship. The court also confirmed that proceedings could be instituted under section 39(4) of the Act if any party was an Australian citizen, ordinarily resident in Australia, or present in Australia at the relevant date.

The court ordered that the applicant's Further Amended Initiating Application filed on 21 May 2018 be stayed permanently.

Orders

Orders of the court

The applicant’s Further Amended Initiating Application filed on 21 May 2018 be stayed permanently.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In Henry v Henry (1996) 185 CLR 571 the High Court of Australia indicated certain factors which are relevant to the determination of a "clearly inappropriate forum" issue. This list (at 592 – 593), which is not exhaustive, was as follows:Considerations relevant to a stay of proceedings between husband and wife with respect to their marital relationshipSome 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. The High Court stated that a determination as to "clearly inappropriate forum" will "depend on the general circumstances of the case, taking into account the true nature and full extent of the issues involved" (at 572). Section 4(1)(ca) of the Act provides that a matrimonial cause includes "proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings: (i) arising out of the marital relationship ...". The wife's Initiating Application sought orders "with respect to the property of the parties to a marriage or either of them, being proceedings arising out of the marital relationship". Accordingly, the orders sought by the wife fall within the statutory definition of "matrimonial clause". Section 39(4) of the Act relevantly provides that proceedings with respect to a "matrimonial cause" may be instituted if "any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia at the relevant date."