Platter and Platter
[2004] FMCAfam 699
•1 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PLATTER & PLATTER | [2004] FMCAfam 699 |
| FAMILY LAW – Divorce – defended – stay of proceedings – whether clearly inappropriate forum. |
Family Law Act 1975, ss.39(3), 104
Henry & Henry (1996) 185 CLR 571
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
| Applicant: | RUDOLF JOHANNES THEODORUS PLATTER |
| Respondent: | MARIANNA HENRICA CATHARINA MARIA PLATTER |
| File No: | BRM6955 of 2004 |
| Delivered on: | 1 December 2004 |
| Delivered at: | Lismore |
| Hearing date: | 25 November 2004 |
| Judgment of: | Jarrett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hamwood |
| Solicitors for the Applicant: | Crowley & Greenhalgh |
| The Respondent appeared in person. |
ORDERS
That a divorce order nisi issue.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM6955 of 2004
| RUDOLF JOHANNES THEODORUS PLATTER |
Applicant
And
| MARIANNA HENRICA CATHARINA MARIA PLATTER |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for divorce filed by the husband. The wife has commenced her own application for divorce in The Netherlands. I have to decide whether this application should proceed or whether it should be stayed so that the application in The Netherlands can proceed.
The evidence
On 3 November, 2004 I directed that each party file and serve affidavits in support of their respective cases by the times limited in those directions. Each party took the opportunity to file further affidavit material.
The husband relies upon:
a)his application for divorce filed on 12 August, 2004;
b)an affidavit sworn by him and filed the on 3 November, 2004;
c)an affidavit sworn by him and filed on 25 November, 2004;
d)an affidavit by Tracey Greenhalgh filed on 25 November, 2004.
The wife relied upon:
a)her response filed on 25 October, 2004;
b)an affidavit sworn by her and filed on 25 October, 2004;
c)an affidavit sworn by her and filed on 3 November, 2004;
d)an affidavit sworn by her and filed on 18 November, 2004.
Two other documents were tendered during the hearing. The first was a copy of an order made in the Family Court of Australia on 11 October, 2004 in relation to parenting issues. The second was a translation of an order made by the District Court of Arnhem, The Netherlands, Family Law Division.
Neither party was cross-examined.
Background
The wife is presently 40 years of age. The husband is presently aged 43 years.
The parties married in Arnhem, The Netherlands on 15 June, 1989. Soon afterwards they immigrated to Australia. On 5 May, 1998, the parties' only child Kimberly Mireille Platter was born. The parties separated on 15 June, 2003.
Early in 2004 the wife returned to The Netherlands with the child. She apparently did so with the consent of the husband. Her visit was intended to be temporary, but the wife soon formed an intention to reside permanently in The Netherlands with the child.
The husband commenced proceedings, via the Dutch Central Authority to have the child returned to Australia. Exhibit 2 reveals that when that application came on for hearing in the District Court of Arnhem, family Law Division, the wife agreed to return to Australia with the child by
31 August, 2004. She has returned.
On 11 October, 2004 consent orders were made by the Family Court of Australia sitting at Brisbane. Those orders provide that the child shall live with the wife and have regular defined contact with the husband. The orders were made on a final basis (see exhibit 1).
Exhibit 1 also makes it clear that the parties intend to reside in Australia indefinitely. By the terms of the order, each is restrained from removing the child from the Commonwealth of Australia without the written consent of the other party or an order of the Family Court or this court.
On 4 June, 2004 and whilst the wife was in The Netherlands she commenced proceedings for divorce. A copy of her divorce petition is exhibited to her affidavit filed on 25 October, 2004. In addition to her request for a divorce she also seeks that the husband pay to her for her support €925 per month. She also seeks an amount of €500 per month as a contribution towards the costs of Kimberly's care and education.
The wife's petition in The Netherlands has been adjourned to allow this court to determine whether it will deal with the husband's application, or stay the further prosecution of it.
The wife's case
The wife says that I should not grant the divorce sought by the husband and that the court in The Netherlands should grant it. Although she did not articulate her claim in this way, I will deal with her response as an application to stay these proceedings permanently.
She says that I should decline to deal with the husband's application because:
a)She filed her proceedings in The Netherlands first;
b)They are both citizens of the Netherlands;
c)Prior to their marriage they entered into an agreement that provides that any dispute about their "marriage goods" should be determined according to Dutch law;
d)If the divorce is granted in The Netherlands, she will be entitled to 12 years of what appears to me to be akin to spouse maintenance. She alleges that her entitlement in Australia is less than that;
e)By reason of European Community Regulation No. 1347/2000, this court is precluded from granting the husband's application.
The Law
The relevant legal principles to be applied in a case such as the present were very recently considered by the High Court of Australia in Henry & Henry (1996) 185 CLR 571. Before proceedings instituted under s.39(3) of the Family Law Act1975 ("the Act") are stayed, two conditions must be satisfied: first, that the Family Court must be a clearly inappropriate forum in which to determine proceedings for a decree of dissolution of the marriage in question; secondly, there is some forum in another country which has and can exercise jurisdiction in proceedings for a decree of dissolution of marriage.
A court will be a clearly inappropriate forum if continuation of the proceedings in that court would be oppressive, in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment": per Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247.
According to the majority in Henry (Dawson, Gaudron, McHugh and Gummow JJ at para 39) it is relevant to consider:
a)whether the court in Australia and the court in the foreign jurisdiction will recognise the other's orders and decrees;
b)whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done;
c)which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy;
d)where there are concurrent proceedings on foot, the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred;
e)the connection of the parties and their marriage with each of the jurisdictions and the issues on which relief might depend in those jurisdictions;
f)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;
g)whether legitimate personal or juridical advantage would flow to either of the parties.
The majority pointed out that the above list is not exhaustive and that 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.
Discussion
This Court plainly has jurisdiction to deal with the husband's application (see s.39(3) of the Act). He is ordinarily resident in Australia and has been so for 1 year immediately preceding the filing of his application.
There is evidence before me that the Dutch court also has jurisdiction to deal with the parties' matrimonial dispute. The husband in his affidavit material concedes as much. By his Dutch solicitor, the husband has filed a response in the Dutch proceedings. The wife's evidence contains a translation of a "defence brief". In that document the husband asks the Dutch court:
"to order as far as is possible in anticipation:
1. To pronounce the divorce between the two parties who were married at Arnhem on 15 June, 1989.
2. To reject all remaining and/or other claims.
With the wife being made responsible for the costs of the procedure."
The second condition necessary to attract a stay of the current proceedings is made out on the evidence.
The issue is whether this court is a clearly inappropriate forum.
This court will recognise the divorce orders of the Dutch court: s.104 of the Act. There is no evidence that a divorce decree of this court will be recognised in the courts of The Netherlands.
Both parties intend to remain in Australia for the foreseeable future. So much appears from the consent orders made on 11 October, 2004. The order sought from this court is a divorce decree. No issue of "enforcement" is likely to arise.
There has been no resolution of the wife's claims for spouse maintenance or child maintenance. She can, of course, pursue those matters in Australia and although I am only dealing with a divorce decree, matters of spouse and child maintenance (and property settlement) are all matters involved in the parties' overall controversy. The Family Court of Australia has already resolved one aspect of the parties' controversy pursuant to the terms of the Act. This court could, if necessary, completely resolve all of the other issues if those matters were bought to it for resolution. I have no doubt that, given that the husband has submitted to the jurisdiction of the court in Arnhem, that court could also dispose of all outstanding issues between the parties.
The wife's proceedings were instituted first. They have reached the stage where a decision is to be made on the divorce application at least. The position is not as clear with respect to her claims for spouse and child maintenance. The husband has asked that court to make the order and there is no evidence that he has withdrawn his request.
I note also that the wife has invoked the Australian child support framework and that there is presently a child support assessment against the husband for his support of the parties' child. There is no evidence of the cost that either party has been put to in the Dutch proceedings.
The parties' connection with The Netherlands is plain enough. Their connection with Australia is also clear and will continue for the foreseeable future.
Although the wife appeared before me with the assistance of an interpreter, I am satisfied that she has a sufficient command of the English language such that she could properly participate in these proceedings. She consulted the interpreter on a couple of occasions only and was able to articulate her case before me. She was at no apparent disadvantage.
The wife contends that a legitimate advantage would flow to her if she were divorced in The Netherlands. She says that she will be entitled, as of right, to twelve years of spouse maintenance from the husband. The rate at which that would be paid is not clear, but it seems that it would depend upon her needs and the husband's capacity to pay. In that sense, the position is much the same as in Australia except that there is no automatic entitlement to twelve years of maintenance. On the contrary, there is no specific period for which she might be entitled to maintenance: the provisions of s 72 of the Act govern her entitlement in that regard.
Conclusion
The question is whether this court is a clearly inappropriate forum. I do not think that it is because:
a)Both parties live in Australia and will continue to do so for the foreseeable future;
b)orders in respect of some aspects of the parties' overall controversy have already been made pursuant to the Act;
c)Notwithstanding that the wife's proceedings in The Netherlands were first in time, and notwithstanding that the husband has to some extent participated in those proceedings, the Wife has submitted to Australian law, namely the Act and the Child Support (Assessment) Act1989.
d)The continuation of the current proceedings would not be oppressive in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". These proceedings will be finalised upon the making of a divorce decree. No further appearances of participation will be required.
I am satisfied that:
a)The husband is ordinarily resident in Australia and has been so resident for at least twelve months prior to the making of this application.
b)The parties were married in Arnhem, The Netherlands on 15 June, 1989.
c)The parties separated on 15 June, 2003 and have lived separately and apart since that time.
d)The parties have one child: Kimberly Mireille Platter born on 5 May, 1998 and that the arrangements in place for her welfare are satisfactory.
e)That the parties' marriage has irretrievably broken down.
I make a divorce order nisi.
The husband seeks orders that restrain the wife from pursuing the spousal maintenance claims and the child maintenance claims in the Netherlands. The husband has filed no application seeking those orders, nor has any notice that he would seek those orders from this court been given to the wife. I decline to deal that application. To the extent that it is necessary to do so, I dismiss the husband's applications in that regard.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: Susan Haysom
Date: 1 December 2004
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