Robinson and Shelter

[2007] FamCA 1734

FAMILY COURT OF AUSTRALIA

ROBINSON & SHELTER [2007] FamCA 1734

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Property alteration and divorce application

Family Law Act 1975 (Cth)

Voth v Manildra Flour Mills Pty Ltd and Another (1990) 171 CLR 538
Henry v Henry (1996) 185 CLR 571; (1996) FLC 92‑685; (1996) 20 Fam LR 171

APPLICANT: Ms Robinson

RESPONDENT: Mr Shelter

FILE NUMBER: MLC 1272 of 2007

DATE DELIVERED: 3 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 3 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms C.M. Haag

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Robinson

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

Orders

1. The application for a stay of the property proceedings is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Robinson & Shelter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1272 of 2007

MS ROBINSON  

Applicant

And

MR SHELTER  

Respondent

REASONS FOR JUDGMENT

1. Both parties were born in the Russian Federation.  They married in Russia in March 1999 and migrated to Australia shortly after their marriage.  They separated in early 2006.  There is a factual issue as to whether that was in January or March of that year and it is neither appropriate nor necessary for me to decide that issue now.  It is possible that I will have to decide that issue following the making of this decision. 

2. In September 2006 the wife commenced proceedings for alteration of property interests in this Court.  She filed applications on Forms 1 and 2 together with a supporting affidavit and a financial statement.  After issues with regard to service, the husband responded to those applications by way of Forms 1A and 2A filed on 15 March 2007 together with appropriate supporting affidavit material. 

3. Together with that application, on 6 February 2007 the wife applied to the Federal Magistrates Court of Australia at Melbourne for a divorce of the parties’ marriage celebrated in Russia.  As I have pointed out to counsel today, despite paragraph 2 of the order made by consent on 19 March 2007 in this Court, it would appear that the divorce application is not properly before this Court as the Family Court of Australia does not have power to uplift any application from the Federal Magistrates Court.  That would need to be done by way of application to that court. 

4. The primary applications before me at the beginning of this hearing were by the husband.  The first of those applications was for a stay of both the divorce proceedings and the wife’s applications.  I should add at this stage that the wife’s applications include one for interim maintenance for herself.  Argument before me has been limited to the question of the stay, the second of the husband’s applications, that is, for a change of venue to the Brisbane registry of the Court, having been abandoned by the husband.

5. The current state of the affidavit material satisfies me that both parties are presently in Australia.  In fact, during the hearing today they have been in court.  I am informed that the husband is leaving Australia to return to Russia tomorrow, where he is both a member of the parliament of the Russian Federation and a part‑time academic.  The wife intends to continue to live in Australia. 

6. The parties are in Australia by virtue of business visas which are held by both of them.  Those business visas have conditions attached to them which apparently include no right of access to pensions in Australia and require the holders of such visas to be independent and conduct a business within the Commonwealth. The evidence suggests that neither party is in any employment, whether by way of his or her own business or otherwise, in Australia.  It is accordingly suggested that they are both in breach of the business visas.

7. It is submitted on behalf of the husband that the visas are due for renewal on 27 April 2007.  It is submitted that neither party will be able to establish the continuance of the necessary pre‑conditions to the renewal of the business visa for either of them, and accordingly that both of them will be deported.  It is submitted on behalf of the husband that a bridging visa pending an application by the wife for permanent residence in Australia is extremely unlikely to be granted to her. 

8. Against that, there is evidence, albeit unsworn and only annexed to an affidavit of the wife from a migration agent in Queensland, asserting that the wife will be granted a bridging visa.  That assertion is made in fairly strong terms.  That is a matter which I am unable to determine. 

9. I have been referred to several authorities, in particular the decision of the High Court of Australia in Voth v Manildra Flour Mills Pty Ltd and Another (1990) 171 CLR 538. It is common ground that this matter should be decided on the basis of whether Australia is a clearly inappropriate forum for these proceedings to be determined. I was also referred to a decision of the High Court in Henry v Henry (1996) FLC 92‑685 to the same effect. It is not argued that the Court does not have jurisdiction to hear either the application for divorce or the application for alteration of property interests. It is common ground that the question of whether a stay of either or both those applications should be granted is discretionary rather than jurisdictional.

10. Following the issue of the proceedings by the wife, to which I have referred, and the service of them on the husband, the husband on 13 February 2007 filed an application in a court of competent jurisdiction in Russia seeking a divorce from the wife together with an alteration of property interests, as we would call it in this jurisdiction.  In that application, of which I have a translated copy, the husband referred to real property in which there is a relevant interest in Russia.  He seeks an equal division of that property between himself and the wife. 

11. The wife has submitted herself to the jurisdiction of the Russian court.  She has responded to the husband's application to that court, in which she also seeks relief in respect of the same property.  Neither the husband nor the wife has sought relief in respect of any property within the Commonwealth of Australia.  That property would appear to have a gross value in the vicinity of $5 million and to potentially involve some significant evidentiary issues. 

12. I have been most assisted by an affidavit sworn on behalf of the husband by his solicitor, Ian Campbell Kennedy on 15 March 2007 and filed on the same date.  Mr Kennedy, who would be regarded as one of the most prominent family law solicitors at least in Victoria, if not in Australia, refers in commendable detail to the issues in dispute in the proceedings.  At paragraph 4 he details the various items of real estate relevant to the property proceedings, which are many in number.  He then in paragraph 5 details, again in commendable detail, his instructions as to the records and witnesses relevant to the proceedings, all of which and whom are located in the State of Queensland. 

13. That affidavit was filed on behalf of the husband’s now abandoned application for change of venue, but it seems to me that it is relevant to the proceedings for alteration of property interests in this jurisdiction.  In the first place, as I have already noted, the parties do not apply in the Russian proceedings for relief in respect of the Australia property.  Secondly, it is clear from the affidavit of Mr Kennedy and from other affidavit material that there are significant issues which would need to be decided relating to property within this jurisdiction.    Thirdly, the existence of that property is a clear contradiction of the proposition that this Court is an inappropriate jurisdiction in accordance with the principles enunciated by the authorities to which I have referred.

14. Accordingly, with regard to the applications for alteration of property interests, I reject the proposition that Australia is a clearly inappropriate forum, and on that basis the application for a stay of those proceedings will be dismissed.  With regard to the application for divorce, as I have said, that application is not presently before me.  It will need to be transferred to this Court by way of application by the parties to the Federal Magistrates Court.  When that application is before me, I will consider it. 

15. It is not appropriate for me to make any final findings with respect to a stay of those proceedings.  It seems to me that different factors may operate in respect of those proceedings on the question of a stay.  But until the proceedings are before me, I will not make any decision on them. 

16. Accordingly, the application for a stay of the property proceedings will be dismissed.  I will not make any order with respect to the divorce proceedings at this stage and I will not make the stay order at this stage.  

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  May 2009