Rogers and Rogers

[2010] FamCA 1069

FAMILY COURT OF AUSTRALIA

ROGERS & ROGERS [2010] FamCA 1069

FAMILY LAW – JURISDICTION – Forum non conveniens – International spouse maintenance order

Family Law Act 1975 (Cth) s 110(2)(a)
Family Law Regulations 1984 (Cth) – Part III, Division 2, Schedule 2, r 24A, r 36, r 36(1), r 36(2), r 36(3), r 38(1), r 38A(2), r 39
Child Support (Registration and Collection) Act 1988 (Cth) s 3, s 4, s 18A, s 18A(2), s 25(1), s 25(1A), s 25(1A)(a), s 25(1A)(b), s 25(1A)(c), s 25(1A)(d), s 25(2)
Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations
Interjurisdictional Support Orders Act, 2002, S.O. 2002, c.13 - s 19(1), s 19(2)

Henry v Henry (1996) FLC 92-685
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

APPLICANT: Mr Rogers

RESPONDENT: Ms Rogers

FILE NUMBER: PAC 2407 of 2007

DATE DELIVERED: 26 November 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 15 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maurice

SOLICITOR FOR THE APPLICANT: David H Cohen & Co

SOLICITOR FOR THE RESPONDENT: Mr Meyer, Meyer Partners

Orders

1. That the wife’s application for an order for permanent stay of the husband’s application at paragraph 2 of the Final orders sought in his Initiating Application filed on 23 July 2009 is dismissed.

2. That both parties have leave to approach my Associate and request these proceedings be listed for directions before Johnston J.

3. That all costs are reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2407 of 2007

MR ROGERS

Applicant

And

MS ROGERS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties in these proceedings are Mr Rogers and Ms Rogers. For convenience I shall refer to them as “the husband” and “the wife”.

2. The husband is seeking an order to the effect that pursuant to r 36 of the Family Law Regulations 1984 (“the Regulations”) a spouse maintenance order in favour of the wife made by the Superior Court of California in the United States of America (“USA”) on 10 September 2006 be discharged together with any outstanding arrears under the order to the date to which they stand paid.

3. On the other hand, the wife is seeking an order to the effect that the husband’s application to vary the orders made in Ontario, Canada be permanently stayed.  The basis for such an order would be because Australia is a clearly inappropriate forum for determination of that application.

Background

1. The brief background matters are as follows.  The husband was born in 1951.  The wife was born in 1952.  The parties married in 1977 in Canada.  They separated in July 2003 in California, USA and were divorced in December 2005.

2. The parties have an adult daughter, R who was born in 1979.  The wife also has a daughter from a previous relationship namely, J…