Pierson & Romilly
[2025] FedCFamC1F 148
•12 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pierson & Romilly [2025] FedCFamC1F 148
File number: SYC 9722 of 2024 Judgment of: BOYLE J Date of judgment: 12 February 2025 Catchwords: FAMILY LAW – summary dismissal – no reasonable prospects of success – application dismissed. Legislation: Family Law Act 1975
Foreign Judgments Act 1991 (Cth)
Cases cited: Bigg & Suzi [1998] FamCA 14
Beck & Beck [2004] FamCA 92
Lindon & Commonwealth [1996] HCA 14
Pierson & Romilly [2019] FamCA 259
Pierson & Romilly [2020] FamCAFC 91
Webster & Lampard (1993) 177 CLR 598
Division: Division 1 Family Law Number of paragraphs: 38 Date of hearing: 7 February 2025 Place: Sydney Counsel for the Applicant: Self represented Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Dezarnaulds Basten ORDERS
SYC 9722 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PIERSON
Applicant
AND: MR ROMILLY
Respondent
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
12 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Initiating Application filed 10 December 2024 is dismissed.
THE COURT DIRECTS THAT:
2.By no later than 28 February 2025 the respondent shall file any affidavit material he wishes to rely on in support of his application pursuant to s 102QB of the Family Law Act 1975 (Cth).
3.By no later than 28 days after the respondent's compliance with Order 2, the applicant shall file any affidavit material she seeks to rely on in respect of the s 102QB application.
4.The respondent’s costs with respect to the summary dismissal application are reserved until 102QB application is dealt with.
5.The matter is listed on 1 April 2025 with respect to the s 102QB application at 10.00am.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BOYLE J:
These are settled reasons for judgment that were delivered orally on 12 February 2025. Grammatical and literal errors have been corrected from the transcript for comprehension and legal references have been included.
The wife filed an Application on 6 December 2024. She seeks, amongst other orders, a declaration of exclusive Australian jurisdiction over the Suburb C property. She seeks this on an urgent basis to prevent a French judge from issuing conflicting orders over the Suburb C property which Australia will not recognise under the Foreign Judgments Act 1991 (Cth), the Family Law Act 1975 (Cth) or prevailing Australian law.
Essentially, the wife's case is that she should be able to invoke the jurisdiction of this court to deal with the property in Australia, being the Suburb C property. She sought a multiplicity of orders which hinge on her being able to invoke Australian jurisdiction. Thus, without that first step being granted, the application must fail.
The husband opposes the wife's application and seeks a summary dismissal. Further, he seeks orders that the wife be declared vexatious under section 102QB of the Family Law Act 1975 (Cth) (“the Act”) and proposes that there be directions made, so that the wife has an opportunity to be heard pursuant to 102QB, subsection (4) of the Act.
The previous proceedings in Australia were dealt with by Stevenson J, the Full Court of the Family Court of Australia, then the High Court. Stevenson J made orders that the applicant's Further Amended Initiating Application filed 21 May 2018 be stayed permanently. The appeals by the wife to the Full Court, and then for special leave to the High Court of Australia, were unsuccessful.
The wife relies in these proceedings on the following documents:
(a)Initiating Application filed 6 December 2024;
(b)Affidavit of the wife filed 6 December 2024;
(c)Affidavit of the wife filed 26 January 2025;
(d)Affidavit of Ms K filed 15 December 2024; and
(e)A Case Summary document filed 6 February 2025.
The wife's documents contain a wide variety of annexures. A number of those are documents translated from French to English, apparently by her or by an automated Google service. No objection was taken to those documents on that basis, although there were some concerns raised about the accuracy of translation of some of the documents. I accept that nothing turns on any inaccuracy in that material for the present purposes.
The husband has relied on:
(a)A Response to the Initiating Application filed 16 January 2025;
(b)Affidavit of Ms O filed 17 January 2025; and
(c)A Case Summary document filed 6 February 2025.
Section 102QAB, subsection (2) of the Act provides that:
The Court may make a decree for one party against another in relation to the whole or any part of proceedings if:
(a) the first party is defending the proceedings or part; and
(b)the Court is satisfied the other party has no reasonable prospect of successfully prosecuting the proceedings or part.
The principles in dealing with summary dismissal applications can be found in Bigg & Suzi [1998] FamCA 14 and Beck & Beck [2004] FamCA 92 (“Beck”). Those are: the summary dismissal power is discretionary; it is rarely and sparingly provided; the parties seeking summary dismissal must show the application is doomed to fail, or their opponent lacks a reasonable cause of action, or is advancing a claim that is clearly frivolous or vexatious.
A weak case or one unlikely to succeed is not sufficient to warrant termination. If a serious legal question is to be determined, it should ordinarily be determined at a trial. If, notwithstanding defects of pleadings, it appears a party may have a reasonable cause of action which they have failed to put in proper form, the Court should allow the party to reframe proceedings. The High Court has referred to the need to exercise exceptional caution in the exercise of the power and that it should never be exercised unless it is clear there is no real question to be tried. Webster & Lampard (1993) 177 CLR 598 at [602], which was approved in Beck in this Court. The Court is required to take the applicant's case at its highest[1].
[1] Lindon & Commonwealth [1996] HCA 14.
The wife's case is that at the time the matter was heard before Stevenson J, there were no proceedings on foot in France. She argues that the Australian courts were misled by the husband and his legal representatives as to the state of the proceedings in France and the conduct of French proceedings more generally. She argues that the property owned by the parties at Suburb C should not be part of the proceedings in France. She argues that this Court should reinstate or allow a further application to be made in Australia due to the husband's fraud or misrepresentation in the previous proceedings. Otherwise, she seeks that to not deal with the Suburb C property in Australia would cause injustice to her.
The wife says she has been unable to meet mortgage payments on the Suburb C property. As a consequence, she is concerned that the mortgagor may move to sell the property, and therefore urgent action is required. She provided no evidence from the mortgagor, whether by way of correspondence or otherwise, which supports their taking such action, nor any financial records. Rather, she relies on her evidence that she has not paid the mortgage for a considerable period. Accordingly, there is no evidence before this Court, as she conceded, that such action by the mortgagor is imminent.
Both parties have taken me to the judgments of Stevenson J and the Full Court in their previous proceedings. Stevenson J had before her a joint report of experts in French law. Indeed, the wife's expert in those proceedings has now been asked a series of questions by the wife, which she relies on in these proceedings. The document purports to be an affidavit of Ms K. Although the document does not appear to be an affidavit, strictly speaking, no issue was taken with the wife relying on that document. There is some difficulty in following the document as to what is the question being put by the wife and what is the answer of the expert, but that was canvassed, in large part, during the course of submissions.
Stevenson J made various findings with respect to the French proceedings based on the expert's evidence. She did this at paragraphs 33 to 43 of the judgment[2]:
[2] Pierson & Romilly [2019] FamCA 259
33. The husband commenced the proceedings in France in 2011, by way of an application for divorce. 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.
34. As part of the divorce proceedings, a court in France has ordered that the husband pay to the wife a "compensatory allowance" of €250,000 and he has made this payment. During the course of the French litigation, orders have been made for periodic provision by the husband of financial support for the wife and the parties' children.
35. The evidence is that the division of the parties’ property is a further step in the French proceedings. As recorded above, French courts have made orders for "preferential allocation" to the wife of [Property C] and [Property D], with the parties needing to take certain steps with the assistance of a notary to advance the litigation.
36. By contrast, the Australian litigation has been on foot only since May 2018. Only procedural steps and this hearing of the threshold issue have taken place in the Australian litigation.
37. The experts agreed that a period of six to twelve months would be required for a notary in France to meet with the parties and provide a report as to points of agreement and disagreement. They agreed that an additional period of one to two years would be required for a judge to rule on points of disagreement (if required) and a similar time for disposition of any appeal. Thus, while the proceedings in France are advanced, I accept that they have not concluded.
38. There was no evidence as to the time likely to be required for finalisation of all issues of alteration of property interests in Australia. There was no evidence of the costs incurred by the parties in the French litigation to date, nor the likely amount which would be required for completion of the proceedings. There was no evidence of the likely cost of finalisation of the Australian litigation.
39. A French court has taken the step of making an order for payment to the wife by the husband of a "compensatory allowance" of €250,000. The joint opinion of the experts in relation to this order was as follows:
-the "prestation compensatoire" is the indemnity awarded by the divorce judge to one spouse where there are significant differences between their income and assets. More precisely, it is a sum payable by one spouse to the other to compensate the latter for the disparity in the respective living conditions following the dissolution of the marriage.
40. The experts opined further on the issue of the compensatory allowance as follows:
-in order to award compensatory allowance, and if French law applies, French courts are under the obligation to consider all the circumstances of both spouses to fix the appropriate amount. Therefore, French courts apply the following criteria, as set out under Article 271 of the French civil code, the determine the quantum of compensatory maintenance awarded upon divorce: the duration of the marriage; the age and health of each spouse; their professional qualifications and current employment; the consequences of the professional choices made by one of the spouses during the marriage for the sake of raising the children and the time needed to still do so, or to favour the career of the other spouse to the detriment of his or her own career; the estimated or foreseeable state of the spouses, in capital and in revenue, after the matrimonial regime has been liquidated; their existing of foreseeable rights; their respective situations concerning retirement while taking into account the decrease in retirement rights for the claimant of compensatory maintenance (namely including the professional sacrifices made to raise children).
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. The effect upon an overall distribution of assets between the parties of this order and payment was explained as follows:
- the prestation compensatoire is part of alimony and therefore has nothing to do with the division of marital assets. Therefore, the amounts ordered for compensatory maintenance are ordered by the judge in addition to the liquidation and division of assets. The quantum of compensatory allowance is determined independently from the division of assets under the applicable matrimonial regime, the judge will however look at the spouses respective assets and determining whether the divorce creates a disparity between them.
42. The experts explained the consequences of the "preferential allocation" as follows:
The preferential allocation of the two properties means that the spouse benefiting from this allocation is entitled to become the owner of this property. This means that the other spouse can no longer request to become the sole owner of this property.
In other words, when spouses are joint owners of a property and one of the spouses wishes to be authorised to become the sole owner of the property, the court can decide to allocate for the future the sole ownership of the property to the spouse requesting it. This is what "preferential allocation" is in the context of the divorce proceedings (Article 267 of the French civil code grants this power to the family affairs judge during the divorce proceedings).
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.
The wife's issue is that at the time the proceedings were commenced before Stevenson J, there were no proceedings in France. She argues that the "preferential allocation" had taken place but that there were no outstanding proceedings before the French court. Annexure E to the wife's affidavit of 15 December 2024 is an automated translation of the respondent's conclusions filed in 2024 in the French proceedings. It contains a summary of the proceedings in France to that date. It refers to the divorce proceedings being instituted following a non-conciliation order dated 2012. Orders were made for maintenance for the wife.
In 2015, the parties were granted a divorce by the Court of First Instance in Town E. Further orders were made to carry out the liquidation and division of the property interests that had existed between the parties. The wife was given what has been termed "preferential allocation" of the Suburb C property in Australia and the property in Region M. The wife appealed that decision. In 2017, the Court of Appeal of City N confirmed the judgment of the lower court. In 2019, a notary was appointed to act in the matter.
The evidence supports that it has been acknowledged during the French proceedings that there may be difficulties in enforcement of orders made in France in Australia. As yet, it is not known whether that will actually be an issue in the future. This was also acknowledged by Stevenson J at paragraph 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 the Suburb C property. 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.
The Full Court dealt with the evidence that was before Stevenson J and noted at paragraph 8(j)[3]:
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 parties must attend upon a notaire, who will make some propositions regarding the division of property. If the spouses cannot reach an 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 deals with the first two stages does not deal with the property division.
[3] Pierson & Romilly [2020] FamCAFC 91
The wife argued that the Full Court misconceived the proceedings in France where they referred as follows:
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.
The wife submits that the court was misled because there were no proceedings on foot in France at the time the matter was before the Australian court. As I understand it, what was occurring in France was that the matter had been referred to a notary, who would pursue with the parties whether or not an amicable agreement could be reached. That initial referral was made in 2015. That is, steps in that process had been taken.
The final step of an application for division of property had not occurred as no application had been filed. I am not satisfied that the court was misled by the husband, nor his legal representative. Stevenson J noted at paragraph 35 as follows:
The evidence is that the division of the parties' property is a further step in the French proceedings, … French courts have made orders for “preferential allocation” …
The wife annexes correspondence to her affidavit at page 103 of 174. It is a letter from the notary dated 2019. The document is translated by the wife, and the page numbering around that is somewhat confusing, but close examination reveals which is the document from the wife or the notary and the translation of that document.
The copy annexed to her affidavit is almost illegible. It requests her attendance in mid-2019. The wife did not attend the appointment in France. She annexes a letter that she sent to the notary around two months later. She refers to the matter being before the Court in Australia and:
Under appeal since 23 May 2019, and is therefore ongoing.
She declined to participate with the notary, and she agreed during the course of submissions that that was the case. The wife relies on these matters with respect to the notary to support that there were no proceedings in France at the time there were proceedings before the Court in Australia.
The referral was made to a notary by order of the court in Town E in 2015, and those orders survived an appeal by the wife. The appeal decision was handed down in 2017. That the parties did not take up the referral until later does not mean that the court in France had not directed the parties to the next step in their litigation. The French proceedings had dealt with the divorce and given the parties the opportunity for an amicable settlement with the assistance of a notary. It is true to say that the final proceedings for property division were not applied for and that no orders had been made which divided the parties' assets.
A necessary step in France prior to that was the attempt at an amicable resolution with the assistance of the notary, which had not yet occurred. On the wife's own submissions and evidence, it is clear she has been wholly unsuccessful in proceedings in Australia in the Family Court and then the Full Court and then the High Court of Australia, seeking that property proceedings be dealt with in Australia, as opposed to France. Australian proceedings concluded in 2020 when her application for special leave was dismissed.
The husband filed proceedings in France for division of property in 2021. The French proceedings were listed in early 2025 and have been adjourned to mid-2025. The wife has filed an appeal, which has not yet been determined, in France. Notwithstanding the outstanding appeal, the French court has moved to list the hearing of the property division. The previous proceedings in Australia have been dealt with to the extent possible in that all avenues for appeal were explored by her and dismissed.
The wife is seeking, I accept, to relitigate matters that were dealt with in those proceedings with respect to forum. She seeks that Australia exercise jurisdiction with respect to the Suburb C property. In her argument and submissions, she has referred to being concerned that her contributions to the property with respect to renovations, maintenance, payment of the mortgage, will not be properly taken into account in the French proceedings.
I have been taken by counsel for the husband to the wife's affidavit at page 79 of 174 and following. The document that is annexed there is the husband setting out his contentions with respect to moneys spent by him on the four parcels of property for the purposes of the French proceedings, including what he says was spent on Suburb C. Thus, it would appear on the face of that document that parties in French proceedings can make these kinds of submissions, familiar to an Australian court, with respect to contributions. This is in contrast to the submission made by the wife that her contributions would not be regarded by the French court.
Turning to the summary dismissal application pursuant to section 102QAB(2). Taking the wife's case at its highest, I am satisfied that she does not have a reasonable prospect of success for the following reasons. The Australian courts have previously ruled that although the final division of the parties' property could be resolved in either France or Australia, the proceedings should occur in France. A permanent stay was granted. The wife exhausted the appeal process from that decision. There are proceedings on foot and listed in mid-2025 in France, notwithstanding an appeal by the wife of prior orders in those proceedings.
There could be no doubt that the French courts are seized of the matter and are able to deal with the Suburb C property. The documents the wife has provided in relation to those proceedings makes that clear. Whilst she may be concerned that insufficient weight will be given to her contributions against an occupation fee, as I understand it, on the Suburb C property, that is a matter to be dealt with as part of the French proceedings. The evidence that she has provided of the husband's documents filed in France suggests that the court in France will have regard to contributions made by the parties to the properties.
The wife has sought an order pursuant to section 79A(1)(a). Leaving aside whether an order that permanently stays proceedings with respect to property can ground a section 79A application, her argument that the husband was successful in the Australian proceedings due to fraud cannot be made out. The judgment of Stevenson J followed the evidence of the experts in French law. A poorly expressed line in the husband's Case Outline Document in those proceedings does not amount to fraud. In any event, the judgment makes clear that the Court was not misled by any poor expression in the husband's case outline.
Paragraph 35 of the judgment refers to the division of the parties' property being a further step required, not that it had commenced. A preferential allocation had occurred. That was the agreed position of the experts with respect to proceedings in France at that time. The wife raises the Full Court misconceiving the French proceedings. The Full Court set out the progress of French proceedings at paragraph 8 of the judgment, and specifically at 8(j), referred to the wife filing pleadings in 2015, seeking various matters if no agreement is reached. That does not support a misapprehension by the Court that an application for division of property had been filed in France. No finding was made to that effect.
The wife's affidavit filed 6 December 2024 annexes a translation of a summons for liquidation and division before the Judicial Court of Town E filed by the husband. The document summarises the progress of the proceedings in France. At page 76, there is reference to the appointment of a notary in 2019. The wife indicated that she would not participate with the notary in the correspondence dated mid-2019, at annexure F to that affidavit.
When that process failed, the husband sought orders for division of property in France in 2021. The expert evidence relied on by the wife supports that being the process in France, which has now occurred. The wife has sought in France, and now here, that Australia deal with the Suburb C property and France deal with the rest of the parties' property. The French court has ruled against that in 2022. She is seeking to go around those proceedings by the application now filed in Australia.
She does not argue that France does not have jurisdiction to deal with Suburb C. Rather, that she believes there will be a more favourable outcome for her in Australia and that any decision made in Australia would be enforceable in Australia. I note again there is no evidence of any action being taken by the mortgagor on the Suburb C property, and there is no evidence that she has made any application for expedition or otherwise in France. These parties have been in dispute for 15 years with litigation in various courts. The proceedings currently on foot in France can deal with the parties' property to conclusion and should do so.
Accordingly, the Initiating Application filed 10 December 2024 is dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 12 March 2025
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