Porta & Porta
[2025] FedCFamC1F 262
•16 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Porta & Porta [2025] FedCFamC1F 262
File number(s): CSC 368 of 2024 Judgment of: BRASCH J Date of judgment: 16 April 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Forum non conveniens – Where orders for property adjustment are sought by the wife – Where the husband contends that Australia is a clearly inappropriate forum – Where the parties married and resided in Papua New Guinea prior to separation – Where the majority of the parties’ assets are in Papua New Guinea – Where the wife is in Australia on a bridging Visa – Where the husband remains residing in Papua New Guinea – Where the validity of a customary divorce in Papua New Guinea is in issue and only capable of resolution under Papua New Guinea law in a Papuan court – Where this court cannot efficiently resolve all issues – Judicial comity – Where it is unclear whether orders made in this court would be enforced in Papua New Guinea – Where continuing the Australian proceedings would be unfairly burdensome, prejudicial and damaging – Where orders made staying the proceedings Legislation: Family Law Act 1975 (Cth) ss 39(4), 44(3), 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Marriage Act 1961 (Cth) s 88C
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 15.17
Custody Orders Reciprocal Enforcement Act 1978 (PNG)
Judicial Enforcements (Reciprocal Arrangements) Act 1976 (PNG)
Marriage Act 1963 (PNG) s 3
Married Women’s Property Act 1953 (PNG)
Matrimonial Causes Act 1963 (PNG) s 4
Reciprocal Enforcement of Judgments Act 1976 (PNG) s 2
Cases cited: Bakshi & Mahanta (No 2) (2022) 367 FLR 177; [2022] FedCFamC1A 90
Cole & Abati (2016) FLC 93-705; [2016] FamCAFC 78
CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33
Deslandes & Deslandes [2015] FamCA 913
Edwards v Edwards [2022] PGNC 530
Edwards v Edwards [2023] PGSC 96
Henry v Henry (1996) 185 CLR 57; [1996] HCA 51
Hilton v Guyot 159 US 113 (1895)
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Obannon & Scarffe (2021) 62 Fam LR 397; [2021] FamCAFC 33
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32
Vanderberg & Vanderberg [2013] FamCA 134
Van der Kreek & Van der Kreek [1979] PNGLR 185
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55
Willmot v Queensland (2024) 98 ALJR 1407; [2024] HCA 42
Division: Division 1 First Instance Number of paragraphs: 102 Date of hearing: 14 April 2025 Place: Cairns Counsel for the Applicant: Mr R. Pack Solicitor for the Applicant: Murray & Lyons Solicitors Counsel for the Respondent: Mr M. Fellows Solicitor for the Respondent: Cairns Family Law Group ORDERS
CSC 368 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PORTA
Applicant
AND: MR PORTA
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
16 APRIL 2025
THE COURT ORDERS THAT:
1.The Applicant Wife's Initiating Application filed 13 May 2024 (subsequently amended on 14 May 2025 and 11 June 2024) seeking property adjustment orders in this Court be stayed.
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 the pseudonym Porta & Porta has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J
These are my Ex Tempore reasons which I will correct for grammatical errors and to make the spoken word more amendable to reading.
On 13 May 2024, the wife filed an Initiating Application seeking property adjustment orders. Specifically, she sought an equal distribution of the parties’ property and as part of her entitlement, she retain the two unencumbered properties in City V, Australia.
The first time the matter was in court the husband raised issues of forum. The Notations to the 15 July 2024 orders say this:
It is noted the Husband says the parties were divorced under customary laws of PNG [in early] 2021.
It is noted there have been court proceedings between the parties in Papua New Guinea and there may be an argument about appropriate jurisdiction.
Notations A and B, Order 15 July 2024
By the same July 2024 order, the husband was required to file response material. He did so on 20 September 2024, and sought the following:
The Wife's Further Amended Initiating Application filed on 11 June 2024 is dismissed on any of the following grounds:
…
(b) Australia is clearly the inappropriate forum to determine the dispute between the parties; or
…
The matter first came before me in October 2024, where the issue of forum was squarely raised. I made directions for disclosure, translation of documents, filing material and the appointment of a Single Expert to opine on various matters, including the validity of the parties’ customary marriage and purported divorce in Papua New Guinea (“PNG”). I set the matter down for a hearing on the forum and associated issues on 14 April 2025.
Background
The wife was born in 1980 and the husband in 1975. The parties met in 1995 in PNG and were married in a traditional ceremony in Region D, Papua New Guinea. That marriage was recorded in the village records in late 1995.
It is common ground that the customary marriage is one that is recognized in Australia; s 88C of the Marriage Act 1961 (Cth), s 3 of the Marriage Act 1963 (PNG).
The parties have eight children, four of whom are under 18 years. Of those four children under 18, only one child, X, is in Australia; she boards at a local City V high school. The wife has since moved to Town E, South-East Queensland. There is an adult child in Australia but his current whereabouts are not clear.
When the matter was first before me in October 2024, the wife indicated that she may further amend her moving documents to include parenting proceedings. However, she has not done so, and that may well be because three of the four children under 18 (if not all four) are habitually resident in PNG. Thus, if she seeks parenting orders, that will likely need to be instituted in Papua New Guinea.
In 2016, the husband married a more recent wife in another customary marriage. They have three children and all reside in PNG. The husband also has the care of the three children under 18 years with the wife in this matter, all of whom reside with him in Papua New Guinea.
According to the wife, the parties separated in October 2018 or 2019. The husband says they separated “in or about 2019”.
A live dispute in this matter is whether the parties have in fact divorced. The husband says they were divorced according to customary law in early 2021, and he says that is recorded in the Papua New Guinea Village Court order no ….
The wife denies this and says the first she learned of their apparent divorce was when they were in this court on 15 July 2024. The wife takes issue with the validity of the Village Court order and puts on affidavits from family members in PNG who refer to the apparent divorce order as “fake”.
It is common ground that the determination of the validity, or not, of the purported customary divorce, is one that solely falls to PNG law.
This is more than just a passing curiosity – the wife initiated this proceeding on 13 May 2024. If the husband is right and the early 2021 divorce is valid, then the wife's application for property orders in Australia is out of time. She would need leave to proceed; s 44(3) of the Family Law Act 1975 (Cth) (“the Act”). He opposes the granting of leave in the event the forum issue is decided against him and says this:
… [Ms Porta] will not suffer hardship if the Application to proceed out of time is not granted.. The [City V], Queensland properties are in our joint names, and they can be sold and [Ms Porta] will receive 50% of the net sale proceeds. [Ms Porta] has ability to enforce her rights in Papau [sic] New Guinea in relation to the properties in Papua New Guinea, also jointly owned by us.
Husband’s affidavit filed 20 September 2024, paragraph 6
If the wife is right and the divorce is not valid, then she remains married to the husband and time has not commenced to run.
At the hearing of the forum dispute on 14 April 2025, the wife made an oral application to adjourn so she could get further evidence about the purported divorce order, and/or bring proceedings in Papua New Guinea to determine its validity or invalidity. For the reasons given at the time, the application was refused. The matter first came before me in October 2024, and the wife has had the better part of six months to take steps in Papua New Guinea and/or put on evidence about the divorce order.
The dispute about the purported customary divorce and its resolution by reference to PNG law and in the relevant PNG court is one that looms large when asking, inter alia, whether this Australian court can resolve all issues between the parties.
Material
The wife relied upon the following material:
(1)Outline of Case filed 11 April 2025;
(2)Application for Final Orders filed 13 May 2024;
(3)Affidavit of Ms Porta filed 4 April 2025;
(4)Affidavit of Ms Porta filed 3 April 2025;
(5)Affidavit of Ms Porta filed 15 October 2024;
(6)Affidavit of Ms Porta filed 13 May 2024;
(7)Affidavit of Mr H filed 18 March 2025;
(8)Affidavit of Mr J filed 28 March 2025;
(9)Affidavit of Ms K filed 4 April 2025; and
(10)Financial Statement filed 4 April 2025.
The husband relied upon the following:
(1)Outline of Case filed 11 April 2025
(2)Response to final orders filed 20 September 2024;
(3)Affidavit of Mr Porta Filed 20 September 2024;
(4)Financial Statement filed 16 October 2024;
(5)Affidavit of Mr Porta filed 16 October 2024; and
(6)Affidavit of Ms M filed 2 April 2025.
The parties engaged an Expert who produced the following reports:
(1)Expert Report of Mr N dated 24 March 2025, Exhibit 3; and
(2)Updated Expert Report of Mr N dated 10 April 2025, Exhibit 2.
Neither party nor the court were particularly helped by the opinions contained within the two expert reports. They were replete with bald assertions and the factual basis for many conclusions were left unsaid (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”)).
Further, the Single Expert unhelpfully accepted the wife’s contention that she was not present at the divorce hearing and relies on that to assert the divorce is invalid. However, that overlooks a dispute of fact where the husband deposed she was present on the first divorce event but not subsequent ones.
The expert says (without much basis or foundation) that the proper jurisdiction to determine the validity of the divorce is PNG. Ultimately, the hearing proceeded on that basis.
Eleven exhibits came before me, including the annexures to the parties many affidavits.
Is Australia a clearly inappropriate forum for the wife to pursue property proceedings?
The parties are at one that this court has jurisdiction to hear the s 79 property adjustment dispute; see s 39(4) of the Act. Further, the wife says that she has properly invoked the jurisdiction of this court and has a prima facie right to have the proceedings determined here.
The husband applies for the proceedings to be dismissed on the basis this court is a clearly inappropriate forum, and if unsuccessful on that, then leave not be granted to the wife to proceed out of time. In terms of dismissing the Application, as the hearing progressed, Counsel both accepted (or did not otherwise contend) that the preponderance of authorities speak to a stay of the proceedings.
It is accepted by all that with respect to the forum issue, the onus of proof lies with the husband.
The issue for the determination then is whether these Australian proceedings continue. Counsel wisely approached the matter on the basis that I determine this issue. If the husband discharges the onus about forum, then that is the end of the matter. If he fails to do so, then it was agreed I would list the matter for mention to discuss ‘what next’.
The parties are also at one with respect to the well settled principles arising from the doctrine of forum non conveniens (see OceanicSunLine Special Shipping Co Inc v Fay (1988) 165 CLR 197 (“Oceanic”), Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”) and Henry v Henry (1996) 185 CLR 571 (“Henry”).
Both Voth and Oceanic make it clear that a stay ought be granted if the local court is a clearly inappropriate forum, being, if a continuation of those proceedings 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”.
It is also clear from Voth and Oceanic that the power to stay proceedings should be exercised with great caution and only in a clear case; see also Willmot v Queensland [2024] HCA 42 at [15] which refers to permanent stays being granted in exceptional circumstances.
During the course of discussions between the bench and bar, I referred the parties to the Appeal Division decision of Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90:
51. Despite some earlier suggestion that the local court should engage in some analysis of the foreign litigation (for example Henry at 592–593; Navarro at [64]), it now appears settled that the focus is on the inappropriateness of the local court. The focus is not upon the appropriateness or comparative appropriateness of the foreign forum, but on assessing whether there are enough factors indicating that the local forum is clearly inappropriate, in which case a stay should be granted: Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; Navarro at [166] citing Martin Davies et al, Ngyh’s Conflict of Laws in Australia (LexisNexis Butterworths, 8th edition, 2010) at [8.29] (repeated in the 10th edition). Australian courts should not concern themselves with an assessment of the comparative procedural or other claims of the foreign forum: Voth at 558; Henry at footnote 68; Navarro at [29]; Zhu & Xie [2021] FedCFamC1F 86 at [10]. As Deane J put it in Oceanic Sun Line at 242, “the clear inappropriateness of the local forum may justify dismissal or a stay. The mere fact that some foreign tribunal would represent a ‘more appropriate’ forum will not”.
No one cavilled with what was said there.
The factors relevant to my consideration were set out in Henry, usefully summarised by Kent J in Deslandes & Deslandes [2015] FamCA 913 and more recently by the Appeal Division of this court in Obannon & Scarffe (2021) 62 Fam LR 397:
(a)Factors of convenience and expense, such as the location of witnesses;
(b)Whether, having regard to their resources and understanding of the language, the parties are able to participate in the respective proceedings on an equal footing;
(c)The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;
(d)Whether the other potential forum will recognise Australian orders and vice-a-versa, and the ease of enforcement in each country;
(e)Which forum may provide more effectively for a complete resolution of the matters involved in the parties' controversy;
(f)The order in which each of the proceedings were instituted, the stage which they have reached, and the costs incurred in each jurisdiction;
(g)The governing law of the dispute;
(h)The place of residence of the parties;
(i)The availability of an alternative forum; and
(j)Any legitimate juridical advantage to litigating in either jurisdiction.
The parties addressed these matters in their respective Outlines.
(a) factors of convenience and expense such as the location of witnesses
The wife has invoked the jurisdiction of this court and has a prima facie right to ask that the jurisdiction be exercised. However, as was said in Voth at [69], “beyond that it has little weight”.
In early 2024, the wife applied for an Australian protection Visa. Whilst that is being assessed, she has been issued with a bridging Visa by Australian authorities. It is not clear when the wife came to Australia, but she sought advice about Visas from a local solicitor in late October 2023 and the application was filed at the start of February 2024. Should the Visa fall away, the wife will need to leave the Commonwealth of Australia.
The great majority of the parties’ eleven real properties and their business interests are in Papua New Guinea. Two of the eleven properties are in Far North Queensland (“FNQ”). Accordingly, there will likely be valuers of nine properties in PNG and likely, accountants or other such valuers for the parties’ considerable PNG rental business. It stands to reason that local FNQ valuers/witnesses will be used for the two local properties, but PNG valuers/witnesses (nine real properties and a rental business) for those PNG items. If these valuers/experts were required to give evidence in Australia, that would be likely to come at considerable expense. The same could be said of the FNQ valuer/s giving evidence in PNG, but there are likely to be more experts for the PNG assets than Australian assets.
The wife also says she was a director of the PNG rental business until the husband removed her in 2017 (wife’s affidavit filed 4 April 2025, paragraph 14). If that is a matter to be agitated within the property proceedings, then it is likely a matter governed by PNG corporate and the like law.
Both parties also list family/lay witnesses, who live in PNG, in their respective cases.
The wife’s case is they can give evidence by videolink. However, the husband properly submits it is not that simple, and that I would have to be satisfied of the mandatory matters set out in r 15.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth):
Foreign evidence by electronic communication
(1)In addition to the requirements of rule 15.16, a party who proposes to adduce evidence by electronic communication from a witness in a foreign country must satisfy the court:
(a)that the party has made appropriate inquiries to determine the attitude of the foreign country's government to the taking of evidence by electronic communication; and
(b) whether permission is needed from the foreign country's government to adduce evidence from a witness in that country by electronic communication; and
(c) if permission is needed--whether permission has been granted or refused; and
(d) if permission has been refused--the reason for refusal; and
(e) whether there are any special requirements for adducing evidence, including:
(i) the administration of an oath; and
(ii) the form of the oath.
(2) In this rule and in paragraph 15.16(4)(h):
foreign country means a country other than Canada, New Zealand, the United Kingdom or the United States of America.
If the witnesses cannot give evidence by videolink (or they cannot satisfy the court of the matters set out in r 15.17 above), then the parties will be put to significant costs to have PNG witnesses attend court in Australia. It is also the case that there would be a cost to Australian witnesses going to Papua New Guinea, but the vast majority of the witnesses are in Papua New Guinea.
It is also the case that the husband is responsible for the care of three of the four children under 18 of the marriage, along with his three children to his more recent wife, all in Papua New Guinea. The daughter in Australia is at a boarding school in City V, and the wife has since relocated from City V, FNQ, to South-East Queensland.
(b) whether having regard to resources and understanding of language, the parties are able to participate in the prospective proceedings on an equal foot
Presciently, the parties have had great difficulty securing NAATI translations of various documents from Language O to English. They have been able to engage professional, private translators, but not NAATI people. This does not bode well for a trial in Australia, particularly if documents require translation during cross-examination; the purported divorce document is a case in point. If translators are required for a trial in Australia, and noting that they are private, that would also come at considerable cost.
Earlier orders made on 26 August 2024 and 23 September 2024 refer to language issues. That said, the parties did not require translations services at the hearing, although the husband listened on the phone from PNG and I have no idea what arrangements were in place for his comprehension of the Australian court proceedings, if any.
The wife says the husband has sufficient financial resources to conduct litigation in Australia. The husband's financial statement reveals the joint ownership with the wife of a number of real properties and that he has about $350,000 in bank accounts in his name. He earns about $7,200 gross per week and claims expenses of about $6,200; Husband’s Financial Statement filed on 16 October 2024.
The wife lives a meagre financial existence, reliant on a share of income from renting a property in FNQ worth about $250 per week to her. She has moved to SEQ, where she is picking fruit. Whilst her current bridging Visa allows work for remuneration, she says she is unable to access Centrelink. The husband highlights his open offer to the wife to sell the FNQ properties and each receive 50 per cent of the proceeds – that offer seems to apply whether the wife is here or litigating in PNG. The wife however wants those two properties as part of her s 79 entitlements if the matter continues here.
At least as things currently stand it is not clear whether the wife’s access to alms and financial support will be improved in PNG, or not. I do accept though that the husband is in a stronger financial position than the wife; but this is just one consideration.
That said, the wife has twice been able to initiate proceedings in PNG courts since separation.
The husband attached a copy of a Consent Order dated mid-2020 naming the wife as Plaintiff, he as First Defendant and a bank as Second Defendant. That related to some term deposits jointly held by the husband and wife and resulted in each being transferred specific amounts of the residue by the Second Defendant bank.
Then on her case, the wife filed an Originating Summons on in May 2021 seeking “the return of funds taken by the respondent” (Affidavit of Ms Porta filed May 2024, paragraph 20 and Exhibit 7, pg. 3-13 of 39). The husband, the parties’ rental entity, and a bank are named as defendants. By order of early 2022, the National Court of Justice dismissed the proceedings, “on account of the Plaintiff’s failure to comply with Court orders and for her failure generally to prosecute this matter with due diligence”.
There is no evidence before me to give any context to that dismissal. But there is evidence that the wife has twice been able to initiate proceedings in PNG post-separation, and against the husband.
(c) the connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend on those jurisdictions
The parties long lived in Papua New Guinea, where they were married in 1995 and had eight children. They have established what looks to be a substantial rental enterprise in Papua New Guinea. Nine of their 11 real properties are in Papua New Guinea. The other two are in Australia. They separated in Papua New Guinea; the wife says the husband deserted her whereas the husband says she left.
The husband remains living in Papua New Guinea with his more recent wife, the three children of that more recent marriage and three of the four children under 18 from the marriage to the wife herein. It seems that the adult children of this marriage attended high schools in Australia, and all but one, Mr B, have returned to PNG.
The wife came to Australia in perhaps 2023 (or well post-separation whatever the specific date) but is subject to the vagaries of a bridging Visa that she currently holds.
The wife has been able to initiate two sets of litigation in Papua New Guinea post separation; I have already referred to these.
The wife says she was a victim of family violence, and it is submitted that she does not want to return to PNG for fear of what might happen to her. Respectfully, her sworn/affirmed, particularised evidence about family violence in 2017/2018 is scant.
The wife and her migration solicitor also say that the bridging Visa restricts the wife’s ability to return to Papua New Guinea and that if she leaves Australia, her bridging Visa will lapse, and she may be unable to return to Australia. That highlights the tenuous connection that the wife has to Australia.
Plainly, a significant issue that looms, is whether the parties are divorced according to PNG law. The husband relies upon the order of the relevant Village Court; the wife says it is invalid, or as her family witnesses in PNG say, it is “fake”. The relevance of this is whether the wife needs leave to proceed with her property application, or not (that is, if the forum issue is decided against the husband).
The parties did their best to secure expert evidence on the topic, but both counsel accepted that the two reports were less than satisfactory - bald assertions lacking the factual basis for the proffered opinions (Makita).
However, it was ultimately agreed by both counsel that it is for PNG law and their relevant court to determine the divorce issue. Indeed, on 14 April 2025, the wife brought an oral application to adjourn this hearing so she could bring proceedings in Papua New Guinea with respect to the purported divorce. Three things arise out of this.
First, she foreshadows bringing a third round of litigation in Papua New Guinea for relief available there.
Second, it highlights how the proceedings are inextricably linked to Papua New Guinea, as that is the only forum that can resolve the issue of the divorce.
Third, it would offend notions of judicial comity for this court to involve itself in the validity or otherwise of the court orders of another sovereign nation. To that end, the High Court majority judgment in CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345 (albeit with respect to injunctions restraining proceedings in a foreign court) discussed the issue of comity (at 395-6), citing the following explanation by the Supreme Court of the United States in Hilton v Guyot 159 US 113,163-164 (1895):
‘Comity', in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.
It was said by the Full Court in Cole & Abati (2016) FLC 93-705 at [67]:
We do not accept that comity issues arise only where there are already proceedings overseas.
I accept that to be so.
Doing the best I can, noting the matter is still in its infancy, and leaving aside items of modest value, the property of the parties appears to be as follows:
Real properties – PNG
Husband
Local Property AA (PNG)
$449,570
Joint
Local Property BB (PNG)
$531,310
Joint
Local Property CC (PNG)
Unknown
Joint
Local Property DD (PNG)
Unknown
Joint
Local Property EE (PNG)
Unknown
Joint
Local Property FF (PNG)
Unknown
Joint
Local Property GG (PNG)
Unknown
Joint
Local Property HH (PNG)
Unknown
Joint
Local Property JJ ((PNG)
Unknown
Real properties – Australia
Joint
R Street, Suburb P (Australia)
$340,000
Joint
S Street, Suburb P (Australia)
$340,000
Banks
Husband
Funds in banks [#…], [#…] (PNG)
E$350,000
PNG rental business
Husband
T Limited ([…]), City U (PNG)
Unknown
Husband
T1 Limited ([…]), City U, (PNG)
Unknown
It is not surprising that the parties do not yet have valuations as the matter is still in its infancy. It is apparent, however, that the great bulk of the parties’ real properties and business interests are in Papua New Guinea, where they will need to be valued unless the parties can otherwise agree.
(d) whether the other potential forum will recognise Australian orders and vice versa and the ease of enforcement in each country
This issue is vexed and does not attract clarity that orders of this court will be enforced in Papua New Guinea. The Single Expert suggests orders of the Federal Circuit and Family Court of Australia may be enforced in Papua New Guinea under the Reciprocal Enforcement of Judgments Act 1976 (PNG), but if that pathway exists, then the only orders that can be enforced are those for the payment of money.
At this point in time the wife's Initiating Application seeks the retention of two specific properties in City V, and that the parties’ overall property be equally adjusted. Obviously, she would need to amend the application to arrive at a specific sum so that that amount could be enforced in Papua New Guinea if that pathway in fact exists.
Unsurprisingly, the husband is more circumspect about the ability to enforce Australian orders in Papua New Guinea. He highlights that pursuant to s 2 of the Reciprocal Enforcement of Judgments Act 1976 (PNG) the relevant PNG minister can issue a notice in the National Gazette to extend rights of enforcement to the money judgments of a "superior court in any foreign country."
The Single Expert asserted (without more) in his first report:
Orders of the Federal Circuit and Family Court of Australia may be enforced in PNG under the Reciprocal Enforcement of Judgments Act 1976.
Australia is a country that come under the arrangement
(Emphasis per original)
Exhibit 3, pg. 3 of 10
He similarly asserted this in his second report (Exhibit 2):
The revised laws of Papua New Guinea contain a list of countries under reciprocal arrangements for enforcement of money judgments. As noted in my initial report, Australia is recognised under such arrangements pursuant to the Reciprocal Enforcement of Judgements Act 1976, which came into effect after PNG's independence.
Although FCFCOA was formally established in 2021, no specific National Gazette notice has been located in this short time of this report recognizing this new court structure. However, it is my opinion-subject to correction-that the FCFCOA is functionally the successor to the Federal Circuit Court and the Family Court of Australia, both of which were recognised under the Act.
(Emphasis per original)
The husband's counsel says that he conducted a survey of the PNG National Gazette and could not find a Notice that Division 1 of this Court, or its earlier name, the Family Court of Australia, had been designated. The wife's counsel was also unable to identify whether this court or its predecessor in name had ever been designated.
Similarly, Justice Benajmin said this in Vanderberg & Vanderberg [2013] FamCA 134 at (250(b)):
The Papua New Guinea Reciprocal Enforcement of Judgments Act 1976 excludes “matrimonial matters” from the list of in personam judgements which its courts may, in their discretion, enforce. Unlike the schedule to the Australia Regulations, the Papua New Guinea Act does not contain a list of countries and courts where reciprocity applies.
Save for the Single Expert’s bald assertions about the Gazette notice, sufficient doubt attends to whether or not s 79 property adjustment orders can be enforced in PNG. If they can, and I stress if, then it seems only money orders will attract reciprocity.
All of this doubt is to be contrasted with “custody orders” made in Australia, which can be clearly enforced in PNG pursuant to the separate Custody Orders Reciprocal Enforcement Act 1978 (PNG); see National Gazette No G11 made 15 February 1979.
This is also a case where the majority of the parties’ assets are real properties and a business in PNG. Thus, even if a money order was crafted in this court, it is not clear how or whether that could be enforced against real properties or corporate entities in PNG if the husband did not pay. It is common ground that the sale or transfer of PNG real properties via an Australian Order are not captured by the reciprocity legislation.
The wife relied upon the decision in Van der Kreek & Van der Kreek [1979] PNGLR 185. That does not resolve the controversy about enforcement. The highest it goes is that back when that case was decided in 1979, and by reference to the Judicial Enforcements (Reciprocal Arrangements) Act 1976 (PNG) then in force, Australian Family Court orders between a husband and wife for a cash sum by way of property settlement may be able to be registered in PNG.
The wife also referred to a first instance decision and appeal reasons mentioned by the Single Expert, respectively: Edwards v Edwards [2022] PGNC 530; and Edwards v Edwards [2023] PGSC 96.
They do not advance the present matter and rest on a different basis to the current dispute; it concerned domicile for the purpose of petitioning for divorce in PNG under the Matrimonial Causes Act 1963 (PNG) (“MCA PNG)” and the bringing of ancillary relief. In short, the Appeal Court held:
28. In our opinion, her Honour erred in finding that a person who is domiciled in the USA could be domiciled in PNG pursuant to s 14(6) of the MCA. Accordingly, we find the grounds of appeal in SCA No. 22 of 2023 have been successfully made out.
…
59. Having concluded that the National Court does not have jurisdiction to hear the Petition, it follows that the Court also lacks jurisdiction to consider the ancillary relief sought by Mr Edwards…
The Edwards Reasons are directed to the MCA PNG. However, it is common ground that customary PNG marriages are not within the ambit of the MCA; see s 4 of the MCA PNG.
As for the idea of ancillary relief and one compounding the circumspection about the ability to enforce Australian property division orders in PNG, the expert said this:
The Supreme Court of PNG, in Edwards v Edwars [2023] PGSC 96, held that ancillary relief (e.g. maintantce [sic], property settlements) must be connected to filed dissolution proceedings. Therefore if current proceedings are not for dissolution, my view base on the Edwards supere [sic] court judgments, the FCFCOA cannot determine ancillary relief.
(Emphasis per original)
Exhibit 2, part 4.2
(e) which forum may provide more effectively for a complete resolution of the matters involved in the party's controversy
Not to labour the point, but it is common ground that it is PNG law which must resolve the validity of the parties’ divorce and in a PNG court. It would offend notions of judicial comity and would be tantamount to an imperialistic, paternalistic approach for this court to make orders about the validity or invalidity of a court record or what is said to be a court record in another country.
It is however common ground that PNG has a legal system which can accommodate relief for the wife, including agitation of the divorce issue and proceedings under, say the Married Women’s Property Act 1953 (PNG).
(f) the order in which each of the proceedings were instituted, the stage they have reached and the costs incurred in each jurisdiction
The proceedings in this court are in their infancy. The parties are still addressing the forum dispute, and I have already alluded to all of the unknown values in the property pool.
The parties’ Costs Notices reveal the wife has incurred just on $21,500 on legal fees to date and estimated another E$18,000 to E$40,000 for the 14 April 2025 hearing. The wife says she has no capacity to pay legal fees. That might be so, but there is no evidence before me that her position in Papua New Guinea would be any better or any worse than it is here in Australia.
The husband has spent almost $68,000 to date and estimated costs of between E$23,000 to E$47,000 for the hearing two days ago.
The husband rightly concedes the wife commenced these property proceedings in Australia and that there are no matrimonial property proceedings (however so styled) in Papua New Guinea. The wife, however, is now proposing proceedings in PNG with respect to the divorce.
(g) the governing law of the dispute
The parties are at one that it is the laws of PNG, which will determine the validity or otherwise of the purported divorce. There is otherwise no evidence before me that Papua New Guinea, a sovereign nation in its own right, lacks a competent judicial and family law system.
(h) the place of residence of the parties
The parties were long-time residents of PNG. The wife is now in Australia by dint of a bridging Visa, and the husband resides in Papua New Guinea, with various children of this marriage and his more recent one.
(i) the availability of an alternative forum
Papua New Guinea is an alternative forum and one that can deal with the divorce dispute when this court cannot.
The Single Expert says the PNG District Court retains jurisdiction on the question of divorce.
There is also some evidence before me, albeit a concession from the husband, that the wife's property interests are protected in PNG laws:
I understand that our property rights and interests in those jointly owned properties are protected under Papua New Guinea laws and under such Papua New Guinea laws, [Ms Porta] is at liberty to pursue her legal rights. Under Papua New Guinea laws [Ms Porta] is legally entitled to equal share of those properties, and she can seek to enforce her rights in the Papua New Guinea Courts.
Husband's affidavit 20 September 24, paragraph 11
The wife says that the husband’s concession on her entitlements assumes the wife can access PNG’s courts. There is no probative evidence before me that the wife cannot. Indeed, the point of her oral application to adjourn the hearing was to bring proceedings in PNG with respect to the divorce.
I accept that the wife's immigration lawyer says that if the wife leaves Australia, she will lose her current Visa. However, she is contemplating bringing a third round of litigation, this time with respect to the divorce, and if her personal attendance is required, she must be conscious of that possible outcome.
(j) any legitimate juridical advantage to litigating in either jurisdiction
I accept that it would be more convenient for the wife to litigate in Australia given she has a bridging Visa to stay here whilst that Visa remains on foot. She will now have to travel from Town E in SEQ to City V in FNQ where she initiated the application for a property adjustment.
I accept that proceedings in Papua New Guinea will not be convenient to her, but that is a logistical inconvenience which is not the same as a juridical advantage or disadvantage. The wife will however have the juridical advantage of being able to address the purported divorce in that forum.
The wife says proceedings in PNG are of juridical advantage to the husband because it was submitted “the wife will be unable to conduct any action commenced in PNG” (Wife’s Case Outline, paragraph 49). That submission, however, flies in the face of the reason for the oral application to adjourn the hearing so the wife could institute proceedings in Papua New Guinea.
Disposition
The husband has established that the continued prosecution of these proceedings is oppressive in the sense of them being seriously and unfairly burdensome, prejudicial and damaging. I have reached that conclusion because:
(a)With the divorce dispute requiring resolution in PNG, this Australian proceeding cannot “more effectively” provide a complete resolution to the entirety of the controversies between the parties;
(b)It is common ground the proper law and court to resolve that divorce dispute is PNG;
(c)As such, proceedings in PNG can give rise to additional or other remedies than are unavailable here;
(d)It would offend notions of judicial comity and would be prejudicial and damaging in the Voth sense for this court to make orders about the validity of a court record in another sovereign nation;
(e)It would be unfairly burdensome for this court to find the court order of another country was invalid, but it remain registered with that overseas court;
(f)It would be oppressive in the Voth sense (and contrary to s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) for these proceedings to essentially 'hang around' or endure waiting for resolution of the divorce issue at some unknown time in the future;
(g)It would again be oppressive in the Voth sense for these proceedings to just subsist waiting for resolution of that issue in a PNG legal system which can also address the parties' matrimonial property dispute however so named under the relevant Act;
(h)The vast majority of witnesses, save for the wife and a local valuer for the City V real properties, are in Papua New Guinea - if they cannot meet the mandatory terms of r 15.17 of the Rules then there will be considerable cost in them coming to Australia;
(i)Further, it is not clear that if a witness declined to come to Australia to give evidence, whether a subpoena issued from this Australian court would be effective to compel attendance;
(j)The vast bulk of the parties' property assets, including real properties and a business enterprise, are also in Papua New Guinea;
(k)Papua New Guinea has a system of family law adjudication for property proceedings and other allied laws, and according to the husband's concession, the wife is entitled to 50 per cent of various assets;
(l)It is not clear whether an order of this court can be enforced in PNG, with the Expert opining, without much by way of foundational basis that "if the current proceedings are not for dissolution, my view based on the Edward supreme court judgment, the FCFCOA cannot determine ancillary relief", which he cites as being "maintenance, property settlements";
(m)If a money order of this court can be enforced in PNG, it is then not clear whether such a money order can be enforced against PNG property or corporate assets, being the bulk of the parties' asset base, if the husband did not pay;
(n)There is juridical advantage to the wife in having the justiciable controversy determined in PNG where the divorce order can be adjudicated - or put differently there is juridical disadvantage to the parties litigating here where that issue cannot be resolved;
(o)The circumspection about enforceability of Australian court orders in PNG also goes to juridical disadvantage in litigating here;
(p)At the hearing two days ago, the wife proposed bringing proceedings in Papua New Guinea with respect to the divorce and has demonstrated an ability to initiate proceedings in Papua New Guinea twice post separation and against the husband and others; and
(q)Should the wife wish to agitate the directorship in the parties' rental enterprise that is a matter, more likely than not, for PNG corporate law.
Accordingly, I conclude that Australia is a clearly inappropriate forum for the continued conduct of these property proceedings. I therefore make the following Order:
(1)The Applicant Wife's Initiating Application filed 13 May 2024 (subsequently amended on 14 May 2025 and 11 June 2024) seeking property adjustment orders in this Court be stayed.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 28 April 2025
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