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…
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- Pierson & Romilly [2020] FamCAFC 91
- Case
- [2020] FamCAFC 91
- Decision Date
CaseChat Overview and Summary
The legal issues before the court include whether the primary judge was correct in finding that the French courts had taken substantial steps towards a property settlement, and whether there was evidence of costs incurred by the parties in the French litigation. The court needed to examine the stage of the French proceedings and the evidence of costs presented by the wife.
The court held that the primary judge's findings were supported by the evidence presented. The court noted that the French proceedings had progressed significantly, and the wife had taken substantial steps in those courts. The wife’s evidence of costs was limited and did not substantiate her claim that the French proceedings had cost her a significant amount. Therefore, the court found that the primary judge’s conclusions were justified and dismissed the wife’s appeal.
The orders of the court were that the Notice of Appeal be dismissed and that the wife pay the husband’s costs of the appeal, fixed in the sum of $15,000. The form of the order is subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
The Notice of Appeal filed on 23 May 2019 be dismissed.
2.
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.
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
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. 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.