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 born in 1973.

3. In approximately 2000 the husband accepted an employment transfer to California, USA and moved there to live.  The wife was suffering serious problems in terms of her health and underwent surgery in Canada in December 2000.

4. During the early part of 2001 the wife underwent further medical treatment.

5. In August 2001 the wife moved to California to join the husband.

6. As indicated above, in July 2003 the parties separated.

7. The husband subsequently commenced proceedings in the Superior Court of California for dissolution of marriage and division of community property.  A settlement agreement between the parties was filed in Court on 2 December 2005.

8. In February 2006 the husband married Ms W. Ms W is an Australian citizen.

9. On 25 October 2006 orders were made by the Superior Court of California in respect of spouse maintenance and division of the parties’ property.  In relation to spousal support, the order required the husband to pay to the wife the sum of USD$2,800.00 per month payable one-half on the first and one-half on the fifteenth day of each month commencing on 1 January 2006 and continuing thereafter until the death of either party, remarriage of the wife, or by further order of a court.

10. In October 2006 the husband and Ms W moved to Sydney to live.

11. The husband made one spousal support payment, this being on 15 October 2006.  The husband has not made any payments since that date.

12. Upon arriving in Australia, the husband commenced working for the corporation P Company which is the same corporation that employed him in the USA.

13. In May 2007 the husband filed an application in this Court at the Parramatta Registry to vary the order made in the USA for spousal support (“the Californian order”).  That application came before Collier J on 20 September 2007 and was summarily dismissed on the basis that the Californian order had not been registered in Australia in accordance with the requirements of the then relevant regulations and therefore the husband’s application to vary the Californian order could not possibly succeed.

14. Prior to the husband’s application coming before this Court on 20 September 2007, the wife had approached the Family Responsibility Office in Ontario, Canada and asked that Office to take action on her behalf to have the Californian order enforced.  The Family Responsibility Office then registered the Californian order in the Superior Court of Justice, Family Court Branch, Ontario, Canada.  The effect of this was that from 18 July 2007 the Californian order had the same effect as a court order made by a court in Ontario, Canada. I shall refer to this matter again below.

15. On 19 August 2008 the Inter-jurisdictional Support Orders Unit of the Family Responsibility Office in Ontario, Canada sent the order to the Child Support Agency in Australia for registration for the purpose of enforcement by the Child Support Agency.

16. A letter from the State Manager Child Support Agency dated 16 July 2009 indicated that the Agency had registered the order pursuant to s 18A of the Child Support (Registration and Collection) Act 1988 (“the Registration and Collection Act”) which meant that it then had status as a “registrable maintenance liability”. I shall refer to this again below.

17. On 23 July 2009 the husband filed the present application in this Court. As indicated above, the orders sought by the husband are to the effect that pursuant to r 36 of the Regulations the Californian order be discharged and any arrears outstanding under the order be discharged to the date to which they stand paid.

Discussion

1. Sub-section 110(2)(a) of the Family Law Act 1975 (“the Act”) provides, in effect, that regulations may be made to make provision for and in relation to the registration in, and enforcement by, courts having jurisdiction under the Act of maintenance orders made by courts or authorities of reciprocating jurisdictions or of jurisdictions with restricted reciprocity.

2. Regulations have been made for this purpose. Part III of the Family Law Regulations makes provision in relation to overseas orders. Schedule 2 of the Regulations lists both the USA and the Canadian Province of Ontario as reciprocating jurisdictions.

3. Division 2 of Part III of the Regulations relates to maintenance. Included in Division 2 is r.36(2) which provides as follows:

   Application may be made to a court having jurisdiction under the Act for an order discharging, suspending, reviving or varying an order, agreement or liability to which this regulation applies.

4. Sub-regulation 36(3) provides as follows:

   An application may be made by:

   (a)the person for whose benefit the order or agreement was made, or for whose benefit the liability was created; or

   (b)the person against whom the order was made or the person who is liable to make payments because of the agreement or the liability; or

   (c)…

5. Sub-regulation 36(1) provides as follows:

   This regulation applies to:

   (a)…

   (b)… a registered maintenance liability.

6. “Registered maintenance liability” is defined in r 24A of the Regulations as meaning “a registrable maintenance liability under section 18A of the Child Support (Registration and Collection) Act 1988.”.

7. Section 18A(2) of the Registration and Collection Act provides as follows:

   A liability is a registrable overseas maintenance liability if it is:

   (a)a liability of a party to a marriage to pay a periodic amount for the maintenance of the other party to the marriage; and

   (b)      an overseas maintenance liability.

8. The meaning of “overseas maintenance liability” is defined at s 4 of the Registration and Collection Act and is as follows:

   “overseas maintenance liability means a liability that arises under:

   (a)a maintenance order made by a judicial authority of a reciprocating jurisdiction; or

   (b)…

   (c)…

9. There is no issue that what is now registered at the Child Support Agency is a registered maintenance liability which has been registered in accordance with the statutory requirements. There is also no question that the husband is a person within the class of persons who can make an application under r 36(3) for an order discharging, suspending, reviving or varying the registered maintenance liability.

10. Where a difficulty arises is that r 38(1) of the Regulations provides to the effect that an order made under r 36 is provisional if the relevant reciprocating jurisdiction is, amongst other places, Ontario. The consequence would be that pursuant to r 38A(2) of the Regulations such a provisional order would not have effect until it was confirmed by order of a court in Ontario.

11. Sub-regulation 38 of the Regulations is as follows:

    An order made under regulation 36 is provisional if the relevant reciprocating jurisdiction is one of the following jurisdictions:

    … Canadian Provinces and Territories mentioned in Schedule 2 (which includes Ontario) … .

12. It is submitted on behalf of the wife that the “relevant reciprocating jurisdiction” referred to in r 38 is Ontario, and that accordingly, the only order this Court would be able to make under r 36 would be a provisional order.

13. On the other hand it is submitted on behalf of the husband that the “relevant reciprocating jurisdiction” referred to in r 38 of the Regulations is California and that therefore this Court would be able to make a final order.

14. So, in these circumstances, in my view the first issue for determination is whether California or Ontario is the “relevant reciprocating jurisdiction” for the purposes of r 36.

The “Relevant reciprocating Jurisdiction”

1. It was submitted on behalf of the wife that the order which was transmitted to Australia for registration in the Child Support Agency was that of the Canadian Court.

2. The relevant provisions of the law of Ontario which the wife has availed herself of are contained in the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c.13 (“the Canadian Act”).  Part III of chapter 13 provides for “Registration and Enforcement of Orders Made Outside Ontario”.  It is expressed to apply in respect of support (includes maintenance and alimony) orders made in reciprocating jurisdictions in and outside Canada (including the USA). 

3. The wife arranged for the Californian order to be forwarded to the designated authority in Ontario for arranging enforcement of orders made outside Ontario namely, the Interjurisdictional Support Orders Unit of the Ontario Family Responsibility Office.  As required under the Canadian Act, the Unit sent the order to the clerk of the Ontario court sitting nearest the wife’s place of residence.  This was the Family Court Branch of the Ontario Superior Court of Justice at S in Ontario (“the Canadian Court”).

4. Under s 19(1) of the Canadian Act the clerk of the Canadian Court, upon receiving the order from the designated authority, was required to register it as an order of the Court.  The clerk did so on 18 July 2007 as indicated above.

5. Sub-section 19(2) of the Canadian Act provides that from the date of registration the (registered) order has the same effect as a support order made by an Ontario court.

6. In these circumstances, I accept that under these provisions of Canadian law, the Californian order became registered as an order of the Canadian Court with the same effect as a support order made by an Ontario court as from 18 July 2007.

7. In my view, the answer to whether California or Ontario is the “relevant reciprocating jurisdiction” referred to in r 38 of the Regulations lies in a consideration of the process involved in the liability becoming registered under the provisions of Australian law which then enables this Court to exercise jurisdiction in relation to it.

8. This process has been as follows. 

9. Section 25(1) of the Registration and Collection Act provides as follows:

   (1)The payee of a registrable maintenance liability that is not registered under this Act may apply to the Registrar, in the manner specified by the Registrar, for the registration of the liability under this Act.

10. Pausing here, before registration under the Registration and Collection Act the wife was the payee of a registrable maintenance liability within the meaning of this term under that Act. Section 4 of the Registration and Collection Act defines “registrable maintenance liability” as “a liability that is, under section … 18A, a registrable maintenance liability”. As indicated above, s 18A(2) of the Registration and Collection Act provides in effect that a liability is a registrable overseas maintenance liability if it is

    -    a liability of a party to a marriage to pay a periodic amount for the maintenance of the other party and

    -    an overseas maintenance liability.

11. As also indicated above “overseas maintenance liability” is defined at s 4 of the Registration and Collection Act as meaning a liability that arises under a maintenance order made by a judicial authority of a reciprocating jurisdiction.

12. Immediately before registration of the registrable maintenance liability under the Registration and Collection Act, each of the requirements set out in the above paragraphs was satisfied. This included the fact that the liability was an “overseas maintenance liability” albeit one which arises under a maintenance order made by a judicial authority of a reciprocating jurisdiction, that reciprocating jurisdiction being California rather than Ontario, because the maintenance order under which the liability arose was “made” by a judicial authority of California, namely, the Superior Court of California.

13. Therefore the requirements of s 25(1) of the Registration and Collection Act were satisfied.

14. Section 25(1A) of the Registration and Collection Act sets out the conditions for satisfactory registration of the registrable maintenance liability.

15. Section 25(1A) provides as follows:

    If:

    (a)       the payee is a resident of a reciprocating jurisdiction; and

    (b)      the registrable maintenance liability is a registrable overseas maintenance liability that arises under an order made by, or registered in, a court of the reciprocating jurisdiction;

    an application for the registration of the liability:

    (c)made by the payee and given to the Registrar by an overseas authority of the reciprocating jurisdiction; or

    (d)      made by such an overseas authority on behalf of the payee;

    is taken to be an application under subsection (1) if the Registrar is satisfied that it is appropriate to do so.

16. Each of these conditions in s 25(1A) has been satisfied. Firstly the wife is a resident of a reciprocating jurisdiction, namely, Ontario. Secondly, the registrable maintenance liability is a registrable overseas maintenance liability that arises under an order registered in a court of the reciprocating jurisdiction.  In my view this reciprocating jurisdiction must be Ontario because the use of the definite article the in s 25(1A)(b) must refer to the “reciprocating jurisdiction” in s 25(1A)(a). Thirdly, application for registration of the liability was made by an overseas authority of the reciprocating jurisdiction, namely, the Interjurisdictional Support Orders Unit of the Ontario Family Responsibility Office on behalf of the wife as payee (s 25(1A)(c) and (d)).

17. It can only be these provisions which have enabled the Child Support Registrar to have registered the liability.

18. On 16 July 2009 the State Manager, Child Support wrote to the husband’s solicitors on behalf of the Child Support Agency.  Amongst other things, the letter confirmed that the Agency had “registered a court order provided by the Interjurisdictional Support Orders Unit, Family Responsibility office in Ontario Canada.  …  This order was based on a Californian court order…”.

19. With respect to the Agency, in my view it was not correct to say that the Agency had registered a court order. This is because what the Child Support Registrar had power under s 25 of the Registration and Collection Act to register in the Child Support Register were particulars of the liability (see for example s 25(2)).

20. But to be fair to the Agency, the letter went on to indicate as follows:

    Our Agency has registered the order pursuant to Section 18A of the Registration and Collection Act 1988, which means, according to the definitions under Regulation 24A of the Family Law Regulations 1984, it is a ‘registrable maintenance liability’.

21. In my view the last part of the above paragraph is correct.  But the loose language in the letter presents a confused report of what has actually been done by the Agency which has probably contributed to the overall confusion about this matter.

22. As indicated above, what r 36 of the Regulations applies to is, amongst other things, “a registered maintenance liability” (see r 36(1) above). And it is “a registered maintenance liability” whose registration has been achieved because each of the requirements under s 25(1A) of the Registration and Collection Act have been satisfied.

23. In these circumstances, in my view the “relevant reciprocating jurisdiction” for the purposes of r 38 and r 39 of the Regulations is that which was relevant to the bringing into being of the registration of the “registered maintenance liability” referred to in r 36 of the Regulations which is essential for this Court to have jurisdiction to deal with the matter.

24. I think the confusion in the present case has arisen because the focus has tended to be on enforcement of an overseas order. But in my view a careful reading of r 36(1) of the Regulations makes it clear that what r 36 applies to in the context of the present case is a liability namely, a registered maintenance liability, rather than an order.

25. Accordingly, in my view the “relevant reciprocating jurisdiction” in the context of r 36 of the Regulations can only be Ontario and not California. In these circumstances, in my view, the provisions of r 38 of the Regulations apply to limit this Court to the making of a provisional order under r 36 of the Regulations.

Forum Non Conveniens

1. As indicated at the outset the wife’s application is for an order for a permanent stay of the husband’s application on the basis that Australia is a clearly inappropriate forum for determination of that application. 

2. The wife’s argument appears to rely on a finding by the Court that the “relevant reciprocating jurisdiction” referred to in r 38 of the Regulations is Ontario and that accordingly, the only order this Court could make under r 36 of the Regulations would be a provisional order. As indicated above, I have arrived at such a finding.

3. It was submitted on behalf of the wife that in these circumstances it would be necessary for there to be two court hearings, one in Australia pursuant to r 36 of the Regulations and an additional hearing by a court in Ontario for the purposes of determining whether the Australian order would be confirmed or perhaps a different order made. This was said to be most unfair to the wife to the point where it would be oppressive or vexatious for the wife to be required to continue as respondent in the proceedings in the sense that “oppressive or vexatious” were considered in the High Court case of Henry v Henry (1996) FLC 92-685.

1. It was submitted that one of the matters referred to in Henry was that in considering whether the chosen forum is a clearly inappropriate forum, it is relevant to consider whether one or other of the available fora can finally resolve the dispute between the parties.  It was submitted that this would not be the situation if there had to be two hearings.  This was said to be because this Court would not be able to resolve the matter on the basis that it did not have power in this case to make other than a provisional spouse maintenance order and therefore the parties would have to be involved in further proceedings in Ontario for the purpose of obtaining a final order.  It was also submitted that the history of the parties’ marriage was one in which they lived most of their married lives in Canada and that the wife has no connection with Australia other than by the fact that the parties’ daughter lives in Australia although the wife says that she and their daughter do not have a close relationship.  It was submitted that the wife would be seriously prejudiced if she has to conduct two sets of proceedings.  It was submitted that the wife suffers from a severe memory deficit, that she is unable to work and that she is unable to travel, nor does she have the financial capacity to be able to conduct proceedings in Australia, let alone two sets of proceedings.

2. On the other hand it was submitted on behalf of the husband that there should be no room for the principles involved in the concept of forum non conveniens to operate in cases involving the application of reciprocal arrangements for recognition and enforcement of overseas maintenance orders.  It was submitted that those arrangements reflect an agreement between countries about how they should recognise each other’s maintenance orders, how they should enforce those orders and how they should vary each other’s orders through their respective court systems.  It is further submitted that the forum test has been evolved to deal with determining jurisdiction between competing courts rather than cooperative courts the latter being reflective of the arrangements.  It was further submitted that the husband’s legal representatives have been unable to find any cases where the forum test has been applied to any matter involving the reciprocal overseas maintenance legislation, let alone successfully.  Learned counsel for the husband also submitted that the circumstances of the present case do not go anywhere near what would be required to satisfy the relevant test for a finding of a clearly inappropriate forum, namely, that continuation of the proceedings would be “oppressive or vexatious” in the sense referred to in Henry that is “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious in the sense of “productive of serious and unjustified trouble and harassment”. 

3. I must say I am inclined to accept the general thrust of the submissions on behalf of the husband in this regard. 

4. Australia has arrangements with many countries in respect of the reciprocal recognition and enforcement of maintenance liabilities.  The legislative provisions relevant in these proceedings form part of the body of Australian law which implements such arrangements.  The provisions have enabled Australia to become a party to several international maintenance agreements including the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations which came into force for Australia in February 2002.

5. I also note in this regard that s 3 of the Registration and Collection Act includes as one of the “principal objects of this Act … to ensure: (c) that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from … marriage.”.

6. As indicated above, learned counsel for the husband described these arrangements as being cooperative arrangements and one could only agree.

7. It was submitted on behalf of the wife that the arrangements between reciprocating jurisdictions do no more than provide jurisdiction so that proceedings under the overseas maintenance legislation are therefore no different from any other proceedings and that therefore, the principles of forum non conveniens apply.

8. I must say that I am not so sure, and I wonder whether in a case such as this there remains scope for any submission that Australia is a clearly inappropriate forum.

9. For abundant caution, however, I propose to deal with the submissions on behalf of the wife that Australia is a clearly inappropriate forum in this case.

10. The general principle governing a stay of proceedings in favour of a foreign forum was set out in the majority judgment in Henry (above).  That case confirmed the test in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 as being applicable in determining whether this Court is an appropriate forum. At page 83,121 the majority said as follows:

    In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case 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”.  It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum “the discussion by Lord Goff in Spiliada ([1987] AC 460 at 477-478, 482-484) of relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance”. In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being “where the case may be tried ‘suitably for the interests of all the parties and for the ends of justice’ ”.

11. At page 83,124 the majority set out some of the matters properly to be taken into account in consideration of a stay of proceedings between husband and wife with respect to their marital relationship. 

12. The first is that no question arises unless the courts of the respective countries have jurisdiction in relation to the matter, and if they do, it will be relevant to consider whether each will recognise the other’s orders.  This Court has jurisdiction to determine this matter but only to make a provisional order.  On the other hand there is no application before the Canadian Court at this time.  The only step that has been taken in the Canadian Court has been the registration in that Court of the Californian order by the Interjurisdictional Support Orders Unit of the Ontario Family Responsibility Office as a necessary step towards enforcement action in Australia.

13. As indicated above, that registered order has effect as a support order made by the Canadian Court.  It has not been made clear to me that the husband would have standing to apply directly, that is outside the reciprocal arrangements, to the Canadian Court for variation of the order registered in that Court.  The wife tendered into the evidence an opinion by Thomas G Bastedo, QC a barrister and solicitor in Ontario, which provided some evidence about the Ontario law and procedure.  But his evidence was based on the assumption that this Court would make a provisional order and did not address this broader matter.  Therefore, this Court is not assisted with any understanding of whether the husband might be able to apply to the Canadian Court for a variation of the order. 

14. Probably the wife’s case falls at this point.

15. But, in any event I shall proceed to the next step and consider other relevant matters.  Which forum can provide more effectively for complete resolution of the matter?  In my view neither Australia nor Ontario would be able to do this completely.  This Court cannot make a final order in the proceedings.  Although the Canadian Court would have power to make an order confirming a provisional order of this Court, if enforcement action was to become necessary the wife would have to transmit any Ontario court order in her favour to Australia for enforcement.  This is because the husband is resident in Australia and working in Australia.  He does not own property in Canada or have funds in Canada which could be the subject of enforcement action by the wife in the Ontario court. 

16. The majority in Henry also held that it is relevant to consider the order in which the proceedings have been instituted, the stage which the proceedings have reached and the costs that have been incurred.  As indicated above, the wife arranged for the liability under her orders to be registered with the Child Support Agency.  That has enabled the husband to bring his application for a discharge of the liability.  So that the actions of both parties have placed these proceedings before this Court. 

17. The proceedings in this Court have reached the stage where some affidavits have been prepared as well as financial statements.  Each party has incurred legal costs.  More preparation of documents would be required to make the matter ready for hearing by this Court.  It would appear that each party will probably file affidavits by new witnesses. 

18. Assuming the parties were to proceed in the Canadian Court, it would be necessary for all documentation to be prepared afresh and it is far from clear how quickly that Court might be able to offer the parties a hearing.  In this Court a hearing would be able to be offered within months. 

19. It is also relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions.  It is the case as indicated above, that the parties spent most of their married lives in Canada, but as indicated above, they resolved issues of divorce, property settlement and spousal maintenance by the Californian orders in 2006.  The only issue in respect of which relief is now sought is spousal maintenance.  In either jurisdiction the legal issues will likely be similar.  These will be the extent to which the wife is unable to support herself and the capacity of the husband to provide for any proper need of the wife.  One of the underlying issues will be whether the wife has any capacity for employment.  Each party will have to put evidence before the Court about these matters and at a hearing have themselves and other witnesses available for cross-examination.  No doubt it would be more convenient to the husband and his witnesses to have the proceedings heard in this Court.  Similarly it would be more convenient for the wife and her witnesses if the proceedings were heard by the Canadian Court.  In this Court, however, it would be permissible for the wife and her witnesses to attend by telephone or by video link from Canada.  The husband has indicated that he will consent to any order for all witnesses outside Australia including the wife to give their evidence by such electronic means.  Mr Bastedo suggests that the husband would be able to make an application to the Canadian Court for him and his witnesses to appear in proceedings in the Canadian Court by such means. 

20. The majority in Henry also opined that it is relevant to consider 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.  There will be no language differences.  So far as their resources are concerned I have the view that the husband’s financial circumstances are stronger than those of the wife and that he is more able financially, to be able to fund preparation of his case and what will be involved in the costs of the hearing.  It is said on behalf of the wife that she does not have available to her further funds to prepare and conduct a trial in this Court and that this would be a lesser difficulty to her if the proceedings were heard by the Canadian Court.  I must say this aspect of the matter is far from clear to me.  The wife has been able to retain lawyers in Australia but she has given evidence to the effect that she has spent her last available funds to meet her legal costs and that she is without funds to retain counsel for any substantial length of time in Australia.  The wife says that she is eligible for legal aid in Canada and that her lawyers in Canada are acting on a pro bono basis.  But the wife has not applied for legal aid in Australia and it is not clear whether she might or might not be successful in obtaining a grant of legal aid in Australia.  The extent to which her Canadian lawyers might be able to assist her in the Australian proceedings is not clear.

21. The majority in Henry also went on to say at page 83,124 that the above considerations are not exhaustive. They say 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.

22. In my view the issue now between the parties is confined.  As indicated above, in the substantive litigation between them in California, spousal maintenance was one of several components in their matrimonial dispute.  All other matters have been resolved finally between them.  Both parties’ lives have moved on with significant changes from the time that their matrimonial dispute was determined in California.  The husband has changed his residence to Australia and remarried.  The wife has returned to Canada where the parties had resided before they moved to California. 

23. Another relevant matter in my view, is the fact that the husband is endeavouring to use the court process specifically put in place under arrangements between his country of residence and the wife’s country of residence to provide an accessible orderly way for resolving the very sort of international maintenance dispute in which they are involved.

24. Finally, whatever order this Court might make in determining the husband’s application to discharge the maintenance liability, it will still be a matter for the Court in the wife’s place of residence, Ontario, in effect to have the last say on the matter.  And Mr Bastedo has indicated that such would involve an oral hearing if the parties were to apply for this.

25. In all the circumstances, I find myself unable to conclude that the proceedings in this Court are oppressive in the sense of being seriously and unfairly burdensome, prejudicial or damaging to the wife or vexatious in the sense of being “productive of serious and unjustified trouble and harassment”.

26. In these circumstances I am not persuaded that it is appropriate to grant the order sought by the wife for a stay of the spousal maintenance proceedings in this Court. 

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice W P Johnston delivered on 26 November 2010.

Associate:     

Date:              26 November 2010