Pierson & Romilly
[2020] FamCAFC 91
•23 April 2020
FAMILY COURT OF AUSTRALIA
| PIERSON & ROMILLY | [2020] FamCAFC 91 |
| FAMILY LAW – APPEAL – PROPERTY – FORUM – Where the parties are originally both from France but where the wife has resided in Australia for 20 years – Where the parties have been engaged in property proceedings in France since 2011 – Where the wife filed an Initiating Application in the Family Court of Australia in August 2017 – Where the primary judge permanently stayed the proceedings in Australia having considered whether or not Australia was a clearly inappropriate forum – Where the primary judge found that the husband would suffer real prejudice if the proceedings in Australia continued – Where the primary judge found there have been substantial steps undertaken in the French proceedings – Where the wife alleges errors of fact and law – Where there is no merit found in any of the wife’s grounds of appeal – Appeal dismissed – Where there is a costs order made in favour of the husband. |
| Family Law Act 1975 (Cth) ss 78, 79 Foreign Judgments Act 1991 (Cth) |
| Gilmore and Gilmore (1993) FLC 92-353; [1993] FamCA 3 Davies, Martin et al, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 10th edition, 2020) |
| APPELLANT: | Ms Pierson |
| RESPONDENT: | Mr Romilly |
| FILE NUMBER: | SYC | 5612 | of | 2017 |
| APPEAL NUMBER: | EAA | 47 | of | 2019 |
| DATE DELIVERED: | 23 April 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Kent and Watts JJ |
| HEARING DATE: | 4 March 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 April 2019 |
| LOWER COURT MNC: | [2019] FamCA 259 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hodgson (direct brief) |
| COUNSEL FOR THE RESPONDENT: | Ms Beck |
| SOLICITOR FOR THE RESPONDENT: | Dezarnaulds Basten Solicitors |
Orders
The Notice of Appeal filed on 23 May 2019 be dismissed.
The appellant wife pay the costs of the respondent husband fixed in the sum of $15,000.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 47 of 2019
File Number: SYC 5612 of 2017
| Ms Pierson |
Appellant
And
| Mr Romilly |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 23 May 2019, Ms Pierson (“the wife”) appeals from orders made by the primary judge on 26 April 2019 which permanently stayed the wife’s Further Amended Initiating Application for property settlement orders filed on 21 May 2018. Mr Romilly (“the husband”) seeks that the appeal be dismissed.
This hearing took place during the emergence of the current global COVID-19 pandemic. We take judicial notice that there are now strict international travel restrictions in place in France and Australia. The Australian Government has now banned all international travel for Australians apart from the utmost exceptional circumstances. There is also a restriction on non-residents and citizens entering Australia. There are similar restrictions in place in France, therefore the resolution of this matter between the parties may rely upon the use of electronic communication by the Court. We have proceeded on the basis that each of the competing jurisdictions have access to globally available technologies. Given the disruption is in both jurisdictions, there is no need to reopen the case as a result of the pandemic.
Background
Both parties were born in France. The parties lived in France between 1989 and 2000 and entered into a pre-nuptial agreement on 6 June 1990 prior to their marriage in July 1990 in France. In 2000 the parties and their children, then aged nine and seven years, moved to Australia for the purposes of the husband’s employment. Both children were born in France but have lived in Australia since 2000.
The parties jointly purchased properties in mainland France in 1991 and 1997 and vacant land in Town C in 2001, upon which a house was constructed in 2005/2006 (“Property C”).
The husband, wife and children were granted Australian permanent residency in 2005. The husband left Australia when his employment contract concluded in 2005. The wife and children remained behind and became Australian citizens in May 2008.
In 2008, the parties jointly purchased a property in Suburb D, New South Wales (“Property D”).
In September 2008, the husband communicated his intention to the wife to end their marriage but visited the wife and children and stayed with them at Property D until 2010.
The hearing before the primary judge proceeded on the papers and each party relied upon an expert witness in respect of French law. Given the focus of the wife’s submissions, it is useful to set out the following facts about French law and the history of the French proceedings which are not controversial:
a)In French law, divorce proceedings “to dissolve the marital bond between two spouses and their respective property rights” are comprised of three stages.
b)First, the starting date of a divorce case is the date of registration of the “requête en divorce” (“the initial petition”). The initial petition leads to a requirement that the parties attend a mandatory conciliation hearing which, if unsuccessful, will lead to a “non-conciliation order”. The making of a non-conciliation order allows the judge to make an order for provisional measures. In the present case, the husband filed the initial petition in a regional court of first instance in France on 18 January 2011. The wife requested the case be moved to a different regional court, but on 29 September 2011 the local court determined it had jurisdiction and on 9 January 2012 made a non-conciliation order which the wife appealed on 1 February 2012.
c)As part of the non-conciliation order, on 9 January 2012, the local court also made orders for spousal maintenance and child support. The husband was ordered to pay EUR2,500 per month in spousal maintenance and did so from January 2012 until March 2017 and EUR1,600 per month for maintenance for the two children of the parties until they reached 18 years of age. The husband was to have the use of the “marital home” in France. The wife was to have the use of “[Property D]”.
d)On 5 February 2013, the non-conciliation order was confirmed on appeal. At that time the Court of Appeal in France also made orders allowing the wife administration of Property C, the husband administration of Property B, and the use of motor vehicles, and made a costs order against the wife. The Court of Appeal also made an order which:
…designated the President of the Chamber of Notaries with a view to the establishment of a draft liquidation of the matrimonial regime and the creation of lots to be shared, provided that the parties each assume half the costs.
e)The second stage is the filing of a formal petition for divorce. Following the non-conciliation order the husband had three months to do this, after which either party could do so. The wife filed that petition for divorce on 22 August 2012 based upon an assertion of an irretrievable breakdown of marriage proved by a separation of more than two years.
f)The judge hearing the divorce also has jurisdiction to rule about the preferential allocation of assets giving one or both parties certain rights to community or undivided property. The judge can also order a “compensatory allowance”. The aim is that, before a final division of property is made at the third stage, the party in the weaker financial position be compensated for the disparity in respect of living conditions resulting from the dissolution of marriage. The compensatory allowance is normally ordered in the form of a lump sum and is part of alimony rather than a division of marital assets, although in the final property case the court will have regard to any disparity of assets between the parties at that time.
g)On 27 January 2015, the wife filed pleadings in which she sought, amongst other things, “that the liquidation and the sharing of the pecuniary interests of the spouses be ordered, with designation being made by the President of the Chamber of Notaries if no agreement is reached between the parties” and specifically that the compensatory allowance paid to the wife be calculated, in part, on the basis of an “attribution of shares owned by the husband in [Property D] for an amount of 162,500 Euros”.
h)On 20 April 2015, the court of first instance in France made orders, inter alia, for divorce, and delivered a judgment and made orders for a “preferential allocation” in relation to Property C and Property D to the wife, as requested by the wife and not opposed by the husband. The husband was ordered to pay the wife “a compensatory allowance” of EUR250,000. The judge in the French regional court explicitly provided a rationale for the quantum of the compensatory allowance and concluded “[t]he share to be received by each spouse after liquidation of the matrimonial regime will roughly [sic] €800,000 for each spouse”. The husband paid to the wife the sum of EUR250,000.
i)The wife’s appeal against the order for compensatory allowance, filed on 10 September 2015, was dismissed on 7 March 2017 by the French Court of Appeal and any further appeal rights expired on 17 February 2018. No step has been taken in the French proceedings since 7 March 2017.
j)The third stage is the liquidation and division of matrimonial property regime. This can take place once the decision pronouncing the divorce has been issued. The spouses must attend upon a notaire (“notary”) who will make some propositions regarding the division of property. If spouses cannot reach agreement based on those propositions, the notary will prepare a draft report and the matter will then be brought before a judge. The judge who dealt with the first two stages does not deal with the property division.
On 5 September 2017, the wife filed an Initiating Application in the Family Court of Australia for property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), and filed an Amended Initiating Application on 15 September 2017, and a Further Amended Initiating Application on 21 May 2018. At trial the husband sought that the wife’s Further Amended Initiating Application be permanently stayed.
At [34] and [35] of the reasons, the primary judge correctly records:
·There has been a preferential allocation to the wife of Property C and Property D and that the husband pay to the wife a “compensatory allowance” of €250,000.
·Orders have been made for periodic provision by the husband of financial support for the wife and the parties’ children.
·The division of the parties’ property is a further step in the French proceedings.
At [42] of the reasons, importantly, the primary judge sets out what the experts explained are the consequences of the “preferential allocation”, namely, that the husband can no longer request to become the sole owner of Property D or Property C.
Applicable law and principles
In circumstances where financial proceedings have been regularly instituted in courts exercising jurisdiction under the Act, a court might stay those proceedings if the doctrine of forum non conveniens compels the conclusion that the court is a “clearly inappropriate forum”. This will be the case if continuation of the proceedings would be oppressive or vexatious (see Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 (“Oceanic Sun”) at 247-248; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”) at 564; Henry v Henry (1996) 185 CLR 571 (“Henry”) at 587). As Deane J explained in Oceanic Sun at 247:
… “oppressive” should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while “vexatious” should be understood as meaning productive of serious and unjustified trouble and harassment.
In Voth at 559, the majority emphasised the focus is to be primarily (although not exclusively) on the local rather than the overseas court:
… In a context where the relevant test will fall to be applied in accordance with the individual perception of a primary judge, the courts of this country are better adapted to apply a test which focuses upon the inappropriateness of the local court of which the local judge will have both knowledge and experience than to a test which focuses upon the appropriateness or comparative appropriateness of a particular foreign tribunal of which he or she is likely to have little knowledge and no experience.
and earlier at page 558:
…such a decision neither turns upon an assessment of the comparative procedural or other claims of the foreign forum nor requires the formation of subjective views about … the merits of that forum’s legal system…
In Nygh’s Conflict of Laws in Australia, (LexisNexis Butterworths, 10th edition, 2020) at page 208, the learned authors point out that although primary judges occasionally express their conclusions using metaphors of balancing weight, the process is not one of weighing those factors that point towards a stay against those that point away from a stay, but rather of assessing whether there are enough factors indicating that the forum is clearly inappropriate, in which case a stay should be granted. If there are significant factors pointing to the conclusion that the chosen forum is appropriate, it is immaterial that there may be many factors suggesting that another forum might also be appropriate or even more appropriate.
In relation to the power to make a stay order, in Oceanic Sun, Deane J stated at pages 247-248:
… That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression…
The primary judge’s reasons
At [22] of the reasons, the primary judge concluded that because both Australia and France had jurisdiction to effect a division of the assets of the parties “[i]t is thus necessary that there be a determination as to whether Australia ‘is a clearly inappropriate forum’”.
At [17], the primary judge referred to the non-exhaustive list of factors which may be relevant to the determination of whether this Court is an inappropriate forum provided in Henry at pages 592-593:
Considerations relevant to a stay of proceedings between husband and wife with respect to their marital relationship
Some 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.
(Footnote omitted)
The primary judge considered whether the courts in France and Australia had jurisdiction with respect of the parties in the marriage; whether both courts will recognise each other’s orders and decrees; the order in which the proceedings were instituted and the stage reached and costs incurred in each jurisdiction; the connection of the parties and their marriage to each jurisdiction and the issues on which relief may depend in each jurisdiction; if either forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy and, whether having regard to the resources and understanding of language, the parties are able to participate in their respective proceedings on an equal footing.
Her Honour concluded:
55.…both experts in French law agree that courts in France could make orders with respect to the four parcels of real estate owned by the parties, including [Property D]. It may be that there would be difficulties with enforcement of such a French order in Australia but there is no doubt as to jurisdiction.
56.It is my view that the husband would suffer real prejudice, if the wife is permitted to continue with her litigation in Australia. I consider that she has delayed too long in commencing these proceedings and participated in the French litigation to such an extent that there should be a permanent stay.
Grounds of Appeal
Annexure A to the Notice of Appeal sets out 11 grounds of appeal.
Ground 1
That the Trial Judge was in error in law in concluding that in the general circumstances of the case, Australia was "clearly an inappropriate forum" to alter the parties' interests in property in Australia and France pursuant to the provisions of Section 79 of the Act.
Ground 10
That the Trial Judge was in error on the evidence in determining that the Husband would suffer real prejudice if the Wife is permitted to continue with her litigation in Australia.
The primary judge concluded that the issue for determination was whether Australia was ‘a clearly inappropriate forum’ (at [2]); that the husband would suffer real prejudice, if the wife was permitted to continue with her litigation in Australia (at [56]); and that the husband was entitled to a permanent stay of the Australian proceedings (at [56]).
The wife’s general contention in oral submissions was that although it may not appear how the primary judge has reached these conclusions, the outcome is unreasonable or plainly unjust.
The wife contended that having regularly invoked the jurisdiction of Australia, the wife’s application for property settlement orders was the only current litigation for property division in which the parties were engaged. The wife asserts that the “preferential allocation” made in France on 28 April 2015 did not make a division order in respect of any property and importantly no order has been made altering interests in Property D and assigning responsibility for the Australian mortgage associated with that property.
As set out above, the proceedings in France commenced at the beginning of 2011; are in three stages; and the first two stages are completed. Apart from the dissolution of the parties’ marriage, the French court has dealt with:
·Spousal maintenance;
·Child support;
·A compensatory allowance, which has been arrived at based upon an assessment of the overall assets held by the parties and which shall be taken into account on any final adjustment of property if the court is ultimately required to adjudicate upon that adjustment;
·A preferential allocation of Property D and Property C to the wife and a preferential allocation of the two properties on the French mainland to the husband, which allocations can only be changed on the final adjustment of property at the option of each party respectively, assuming those properties have increased in value more than 25 per cent from the date when the preferential allocation was made; and
·Use of motor vehicles.
As noted at [8(g)] above, the wife filed a pleading in the French court seeking an overall liquidation and sharing of the pecuniary interests of the parties including specifically that she receive Property D and absent agreement between the parties, seeking a designation be made by the President of the Chamber of Notaries. That application is extant. The wife’s assertion that her further amended application for a property settlement order in Australia is the only current application in respect of property settlement cannot be sustained.
It was open to the primary judge to find that the husband would suffer real prejudice if the proceedings in Australia were not stayed; to consequently find that the continuation of the proceedings would be oppressive to the husband and accordingly find that Australia was a clearly inappropriate forum. There is no merit in Ground 1.
In support of Ground 10, the wife submits that a finding of real prejudice to the husband cannot be made in circumstances:
a)where the conducting of the third stage of the hearing in France would increase the time for hearing (as compared with Australia) and create additional costs;
b)where the wife asserts that the husband over a period of eight years has now already been able to delay the proceedings in France; and
c)where the husband refuses to disclose assets.
None of these propositions were established by evidence before the primary judge.
There is no merit in Ground 10.
Ground 2
That the Trial Judge was in error in law in making an order to permanently stay the Wife's Further Amended Initiating Application filed 21 May 2018 in circumstances where she determined that there was no basis for an inference that one jurisdiction would better or more effectively serve the interests of justice.
Paragraph [49] of the primary judge’s reasons is in the following terms:
Which forum may provide more effectively for a complete resolution of the matters involved in the parties' controversy
49.It seems to me that the issues in the parties' controversy could be resolved effectively in each forum. The matter of final division of the parties' property can be resolved in both Australia and France and, in my view, there is no basis for an inference that one jurisdiction would better or more effectively serve the interests of justice.
The wife first submits that the conclusion in [49] of the reasons is based upon errors in findings made by the primary judge as there were “no proceedings on foot in France”. By that, the wife meant that the third stage of the case in France had not been advanced. Based on that assertion, the wife submitted that the following findings of the primary judge, amongst others, were erroneous:
33.… The wife participated in these proceedings and herself took active steps, including the filing and prosecution of an application and an appeal. The wife engaged legal representation in France.
…
35.The evidence is that the division of the parties’ property is a further step in the French proceedings … with the assistance of a notary to advance the litigation.
…
37.… Thus, while the proceedings in France are advanced, I accept that they have not concluded.
…
41.It is thus the case that a French court has recognised the disparity in the financial positions of the parties and made an order which favours the wife …
All those findings were open to the primary judge. There have been proceedings on foot in France since 2011. Whilst there has been no step taken in France since 3 March 2017, that has been in circumstances where the husband’s application for a permanent stay of the Australian proceedings has been strenuously opposed by the wife.
On its face, Ground 2 asserts that because the primary judge found, at [49], that there was no basis to infer one jurisdiction would better or more effectively serve the interests of justice, then a finding that the husband would suffer real prejudice was not open. There is no logic in that submission. The finding of real prejudice to the husband was based upon a consideration by the primary judge of all those matters identified in Henry. We accept the husband’s submission that the inability to find France was better placed to effectively resolve the parties’ controversy did not mean there was a failure of some threshold test for ordering a stay of the proceedings. As noted by the primary judge at [17], which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy is but one consideration in the
non-exhaustive list set out in Henry.
There is no merit in Ground 2.
Ground 3
That the Trial Judge was in error on the evidence in determining that France was the forum which can provide more effectively for complete resolution of the matters in issue between the parties.
Ground 4
That the Trial Judge was in error in the exercise of her discretion in failing to place sufficient weight upon the agreed expert evidence that the French Courts may refuse to exercise jurisdiction in relation to assets situated outside of France because of either uncertainty as to enforcement of their orders in a foreign jurisdiction or because such Courts determine that "land property" outside of France should be the exclusive jurisdiction of the Courts of the place of situation of the assets.
The wife sought to amend Ground 3 by removing the word “more”. The husband did not indicate any opposition to that amendment. The contention in Ground 3 then became that the primary judge erred in finding the French court could provide for a complete resolution of the matters in issue between the parties.
In Voth, the High Court said at 558:
The availability of relief in a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one.
In Henry, Chief Justice Brennan at 578 refers to this statement in Voth and says:
If the alternate source of relief were not a relevant factor, the declining of jurisdiction by the selected forum would deny the prospect of any relief to the party seeking to enforce a legal right. That could be contemplated only in an extreme case.
It follows that, before proceedings…are stayed, two conditions must be satisfied: first, that the Family Court is a clearly inappropriate forum in which to determine proceedings for a decree of dissolution of the marriage in question; secondly, that there is some forum in another country which has and can exercise jurisdiction in proceedings for a decree of dissolution of marriage.
Counsel for the wife submitted that the jurisdiction of the French court remained undetermined. That submission was unsustainable. As described above, the French court has, on an interim basis and at the wife’s request, already exercised jurisdiction in respect of Property D. The primary judge’s findings in the first sentences of [21] and [55] that both experts in French law had agreed that courts in France have “jurisdiction to complete division of property” and could make orders with respect to the four parcels of real estate owned by the parties, including Property D, was beyond challenge.
Additionally, the wife drew attention to the finding by the primary judge at [21]:
…They agreed also that French courts may refuse to exercise jurisdiction in relation to assets situated outside France because of uncertainty as to enforcement of their orders in a foreign jurisdiction. They agreed further that French courts may refuse to exercise jurisdiction for "land property outside France, considering that it should be the exclusive jurisdiction of the courts of the place of situation of the assets."
The wife submits that the finding that the French court may refuse to exercise jurisdiction in relation to Property D, was sufficient justification for the proceedings to continue in Australia.
Again, that finding needs to be seen in light of the primary judge’s appreciation at [11] and [55] that the French court had already made orders affecting the respective rights of the parties in Property D.
The primary judge was aware that there was a possibility that on a final hearing the French court might choose to make no order about Property D. However, at [55], the primary judge placed weight on the fact that such an order in relation to Property D could be made by the French court. The wife had an extant application that the French court do so.
The wife did not suggest to the primary judge that any stay granted of the Australian proceedings should be pending the conclusion of the French proceedings.
There is no merit in Ground 3.
Ground 4 is an assertion that the primary judge failed to place sufficient weight on the possibility that a judge in France may refuse to deal with Property D and its mortgage on a final basis. It is well settled that challenges to weight ascribed by a primary judge in determining a discretionary judgment as a means of disturbing that judgment on appeal are exceedingly difficult to establish (Gronow v Gronow (1979) 144 CLR 513 at 519).
There is no merit in Ground 4.
Ground 5
That the Trial Judge was in error in law in finding that although there were potential difficulties with enforcement in each of the French and Australian jurisdictions, it was not necessary for there to be findings as to enforceability as this was a factor largely neutral to the outcome of the present issue.
This Ground asserts that it was necessary for the primary judge to make a finding that any French order about Property D and its mortgage was enforceable in Australia.
The wife relies upon the statement by the plurality in Henry at 592:
[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.
At [23] – [32] of the reasons, the primary judge discusses whether both courts will recognise each other’s orders and decrees. The primary judge referred to the potential difficulties with enforcement of an Australian order in France arising from the experts’ opinion that there was an unresolved question at an appellate level in France as to the enforceability of an overseas order that was in conflict with a prenuptial agreement the parties had entered into in France. In relation to the enforcement of a French order in Australia, at [31] and [32], the primary judge concludes:
31. The question, therefore, is whether an order for transfer to the wife of the husband's interest in [Property D] would be enforceable pursuant to the Act. The mechanism suggested in the submissions on behalf of the husband was by way of a declaration pursuant to s 78, in terms which would mirror the foreign order.
32. It would thus appear that there are potential difficulties with enforcement in each of the jurisdictions. In my view, it is not necessary for present purposes that there be findings as to enforceability. I would regard this factor as largely neutral to the outcome of the present issue, weighing neither for or against the granting of a stay of the Australian proceedings.
The primary judge received written submissions about the enforceability of French orders in Australia. The primary judge concluded that an order of the French court requiring the husband to transfer to the wife his interest in Property D would not be enforceable at common law or under the Foreign Judgments Act 1991 (Cth).
The husband submitted that an order of a French court requiring transfer of Property D would be enforceable because such an order would create rights which could be the subject of a declaration under s 78(1) of the Act which if made, would allow consequential orders to be made under s 78(2) in relation to both the execution of a transfer of the husband’s interest in Property D to the wife and also in relation to the mortgage on that property.
Section 78(1) and (2) are in the following terms:
Declaration of interests in property
(1) In proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of the property.
(2) Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.
(Emphasis added)
In Kemeny v Kemeny (1998) FLC 92-806 (“Kemeny”), the husband sought orders in Australia for declaratory relief under s 78 of the Act and consequential orders, in relation to property held in Australia, to enable him to obtain the fruits of the overseas litigation. The Full Court (Finn, Kay and Maxwell JJ) at 85,069 categorised the husband’s s 78 application as him conducting “enforcement proceedings”.
In Gilmore and Gilmore (1993) FLC 92-353, Fogarty J with whom Finn J generally agreed and Lindemayer J completely agreed, said that, in relation to a question of the enforceability of an overseas property settlement order in Australia, raised in the context of a forum argument, “the issue can be dealt with more generally and more briefly than would be the case if this court was concerned with the actual question of the registration and enforcement of such an order in the one country or the other” (at 79,733).
It was not necessary for the primary judge, nor is it necessary for us, to determine whether a French order might provide the basis for making a s 78 declaration or how a French order will otherwise be enforced. The issue may not ultimately need to be determined by an Australian court. The husband is a French national and subject to the laws of France. Any order made by a French court that the husband do things or sign documents in relation to Property D or any encumbrance on that property will bind him, in personam, in France and the wife is a party to those proceedings.
Ground 5 has not been made out.
Ground 6
That the Trial Judge was in error on the evidence in determining that substantial steps have been taken by French courts in terms of consideration and alternation [sic] of the comparative financial circumstances of the parties where, by contrast, no substantive step has occurred in the Australian litigation.
This is a challenge to the primary judge’s finding at [43]:
It is thus the case that substantial steps have been taken by French courts in terms of consideration and alteration of the comparative financial circumstances of the parties. By contrast, no substantive step has occurred in the Australian litigation.
Again, this Ground is premised upon the rejected assertion that proceedings for property settlement had only commenced in Australia. Having commenced in 2011, the stage at which the French proceedings had reached has been discussed above. The wife had filed an application for property settlement orders with the Australian court in September 2017 supported by a Financial Statement. The first procedural event in the property case (the case assessment conference) had not yet occurred because of the unresolved issue as to forum.
Apparently, under this Ground, the wife also seeks to challenge the primary judge’s finding at [38] that there was no evidence of the costs incurred by the parties in the French litigation to date. The wife asserts that the costs to date were set out in the wife’s affidavit but no such evidence has been identified. The wife gave some limited evidence quantifying some of the costs of the future proceedings in France being money payable to the notary public (AUD55,800) and that future proceedings in France will cost the wife “a great deal of money”. The wife’s submission before the primary judge was that the French proceedings had cost the wife “a fortune”. This submission only goes to fortify the primary judge’s finding that substantial steps had been taken by the wife in the French courts.
There is no error in the primary judge’s findings and accordingly no merit in Ground 6.
Ground 7
That the Trial Judge was in error in the exercise of her discretion in failing to place sufficient weight upon the Wife's strong connections in Australia, the parties' cohabitation in Australia for a period of five (5) years and their purchase of the jointly owned property at [Suburb D] in 2008.
The primary judge makes findings about the connection of the parties with the respective jurisdictions at [44] – [48]. Ground 8 deals with [48] of the reasons. At [44] and [45], the primary judge found that the wife has strong connections with Australia and why that is so. At [46], the primary judge found the wife has connections to France and again explains why. At [45] and [47], the primary judge discusses the husband’s lack of ongoing connection to Australia. Apart from the bald submission by the wife that she has no connection with France, she does not demonstrate error in those findings by the primary judge and otherwise none of those findings are challenged except as to weight.
This Ground goes to the weight to be placed on the wife’s connection to Australia, the assertion by the wife that the parties spent half the time they were together during the marriage in Australia (although it is unclear as to what is the basis for that calculation) and that they jointly bought a property in Australia in 2008. We have already referred to the difficulty on appeal facing challenges as to weight.
There is no merit in Ground 7.
Ground 8
That the Trial Judge was in error on the evidence in concluding that it was unclear whether the prenuptial agreement (entered into between the parties in France on 6 June 1990) would operate to the advantage or disadvantage of either party in the French litigation, in circumstances where the agreed expert evidence was that the prenuptial agreement would have binding effect upon the division of the parties' assets in a French Court.
The primary judge found, at [48]:
The experts agreed that the prenuptial agreement would have binding effect upon the division of the assets of the parties in a French court. The experts agreed further that the prenuptial agreement would mean that French law would be applied to the division of property, albeit that a major asset is located outside France. At this point, it is unclear whether the prenuptial agreement would operate to the advantage or disadvantage of either party in the French litigation.
In submissions before the primary judge, counsel for the wife asserted that a strict application of the prenuptial agreement might lead to an outcome which was unconscionable for the wife. However, that submission was made in the face of the following circumstances:
·There was an extant petition by the wife for final property orders before the French court;
·The four properties held were in the joint names of the parties;
·The husband asserted he was unemployed for a considerable period;
·There was an issue as to whether or not the husband could be compensated for mortgage payments that he had made in relation to Property A which was referred to by the French court in the ruling on 20 April 2015 as the former marital home;
·There was an issue as to whether or not the wife would be compensated for the mortgage payments that she had made in relation to Property D which is referred to in the same ruling as “the apartment in [Suburb D]”; and
·There were possible issues as to how the French courts would deal with superannuation and tax.
The wife did not adduce any expert evidence as to what juridical advantage she might obtain if the property case was heard in Australia.
Given the facts and uncertainties referred to, it was open to the primary judge to conclude that it was unclear as to whether or not the prenuptial agreement would operate to the advantage or disadvantage of either party in the French litigation.
There is no merit in Ground 8.
Ground 9
That the Trial Judge was in error in the exercise of her discretion in placing undue weight upon her determination that because the Wife spends "considerable amounts of time in France each year for the purpose of compliance with orders relating to the leasing of the parties' property at [Town C]" and that because the Husband would be required to travel to Australia for the sole purpose of the litigation, that this consideration favours the Husband, inferentially upon the balance of convenience.
The wife contends that the primary judge erred in the exercise of her Honour’s discretion in considering that the wife spends considerable time in France for purposes associated with Property C.
The primary judge made the following findings:
46. … [The wife] was born in France and members of her family live in the vicinity of the [Town C] property. Orders of a French court require the wife to lease out the [Town C] property and to be present in this area during the rental season.
…
50. … The wife spends considerable amounts of time in France each year for the purpose of compliance with orders in relation to the leasing of the [Town C] property.
51. The husband would be required to travel to Australia for the sole purpose of the litigation. In my view this consideration favours the husband, as the wife is required to travel to France in any event for purposes associated with the French litigation.
As detailed above, the wife sought and obtained the preferential allocation of the Property C. It is not controversial that she has been renting the property out in accordance with those orders. There is no suggestion that she will not continue to do so.
Counsel for the wife withdrew a challenge to the accuracy of the primary judge’s finding in the second sentence of [46] of the reasons. The wife’s written chronology at trial contained the entry:
2013French Interim Court Order made requiring the mandatory presence of the Wife in France to manage [Property C] during rental season.
The wife’s affidavit indicates that she has an elderly father and four brothers nearby.
The wife submits that there is no evidence before the Court as to the number of occasions the court in France would require the parties to attend for the purposes of the third stage of the proceedings or whether or not those occasions would conveniently coincide with times that the wife was in France. Further, she submits that given the husband’s resources are unknown and it was not open to the primary judge to find that the husband travelled to Australia only for the purposes of this litigation and no other purpose is a consideration that favours the husband.
Again, this is an appeal as to the weight to be placed upon particular considerations. The primary judge acted well within her Honour’s discretion to find that the wife would spend considerable time in France each year and that such a consideration favours the husband.
Whilst the current pandemic may affect the weight that may be placed upon this consideration, it does not vitiate the overall conclusion reached by the primary judge.
There is no merit in Ground 9.
Ground 11
The Trial Judge was in error on the evidence in determining that the Wife has delayed too long in commencing proceedings in Australia and in relation to the extent to which she has participated in the French litigation.
This Ground is again underpinned by the rejected assertion that no property proceedings have been commenced in France.
The husband initiated the proceedings in France in January 2011. The wife’s extensive participation in the French proceedings is detailed in [8] above, including her petition for a final property settlement order filed 27 January 2015 which is still extant. The wife initiated proceedings in Australia in September 2017.
The wife could have commenced proceedings in Australia at any time after the separation in 2008. It was open for the primary judge to put emphasis on the order in which the proceedings had been instituted and the stage which they had reached in France and conclude that the wife had delayed too long the commencement of the proceedings in Australia.
There is no merit in Ground 11.
Conclusion
In Voth, the plurality observed at 565:
… it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (ie “clearly inappropriate forum”) grounds.
and at 570 said, when deciding as to whether or not there is a clearly inappropriate forum, “the question is pre-eminently one for the trial judge, an appeal should be rare and an appellate court should be slow to intervene”.
Given there is no merit in any ground of appeal raised by the wife, the appeal shall be dismissed.
Costs
At the conclusion of the hearing, submissions were received as to the question of costs depending on the result of the appeal.
If the appeal was dismissed, the husband sought party/party costs fixed in the sum of $15,000. That was opposed by the wife on the basis that the husband’s financial circumstances were unknown.
It is the policy of this Court to attempt to fix costs at the conclusion of the hearing in order to save the parties the cost, time and resources of a taxation, as well as to save the time of a Registrar in taxing the costs.
Here, if successful, the wife sought that the husband pay her costs of $20,000. In these circumstances, and given that the wife’s Financial Statement reveals that she has $400,000 in an account, and the husband is said to be unemployed, we consider an amount of $15,000 for costs of the husband to not be unreasonable, and we will make an order accordingly.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Watts JJ) delivered on 23 April 2020.
Associate:
Date: 23 April 2020
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