Soderberg and Soderberg

[2016] FamCA 71

FAMILY COURT OF AUSTRALIA

SODERBERG & SODERBERG [2016] FamCA 71

FAMILY LAW – Forum – both parties self-represented – little evidence but balance of convenience suggests Australia is the clearly inappropriate forum.

Family Law Act 1975 (Cth)

Dey & Victorian Railways Commissioners [1949] HCA 1
Fancourt & Mercantile Credits Limited [1983] HCA 25
General Steel Industries Incorporated & Commissioner for Railways (NSW) [1964] HCA 69
Henry & Henry (1996) FLC 92-685
Steen & Black (2000) FLC 93-005
Voth & Manildra Flour Mills Limited (1990) 171 CLR 538

APPLICANT: Ms Soderberg

RESPONDENT: Mr Soderberg

FILE NUMBER: MLC 8672 of 2013

DATE DELIVERED: 3 February 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 February 2016

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the application of the wife seeking orders under Part VIII of the Family Law Act 1975 (Cth) be permanently stayed.

2. That the response filed by the husband is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Soderberg & Soderberg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8672 of 2013

Ms Soderberg

Applicant

And

Mr Soderberg

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Ms Soderberg and Mr Soderberg.  For my convenience only, I shall refer to them in these reasons as husband and wife, notwithstanding that they are now divorced.  Both parties are unrepresented, which, because of the nature of this issue in the judicial duty list, makes it very hard for both of them.  Sadly, it has also meant that the Court has had to work out much for itself.  The descriptions in the respective applications for orders are unfortunately also unsatisfactory.  I have done the best I can to discern what each is seeking. 

2. By way of background, on 18 December 2013, the wife filed an application through her then lawyers for a property settlement.  Despite the requirement of the rules to plead with precision the orders sought, that application did not do so.  The wife sought that she be relieved of that obligation because she did not know what assets the husband had. 

3. Over two years later, not much has changed.  Without filing any documents, the husband attended on the return date of 25 February 2014.  The registrar recorded on the bench sheet that there was to be an argument about the appropriate forum and jurisdiction.  The husband was ordered to file a response by 18 March 2014.  He did not do so.  The application of the wife was then adjourned to 28 March 2014.  But on that date, the husband attended and the wife did not.  The registrar then made the following order:

   That all applications be struck out with a right of reinstatement;  that any such application to reinstate the matter must be way of an application in a case supported by an affidavit to be filed by no later than 30 June 2014.

4. On 6 June 2015 and, obviously, well after the time limit for the reinstatement application, the wife filed another application, but this time in the Federal Circuit Court, repeating the imprecise details of her earlier application.  This application was filed just inside the statutory limitation period, as the parties had been divorced in the interim period.  The return date of this application was 17 August 2015.  On that day, Judge Bender adjourned it to 29 September 2015.  It is noticeable that the husband was not present. 

5. On 29 September 2015, Judge Bender transferred the proceedings to this Court, and that order occurred in the presence of the husband.  The husband was again ordered to file a response, and this time he did so.  He sought the following order:

   That the honourable Court would allow my property settlement to take place in [City B] District Court in [Country C].

6. On 16 December 2015, with this Court now being responsible for the matter, Registrar Sikiotis had the matter before her.  Both parties attended in person.  The registrar made this order:

   That this matter is adjourned to the judicial duty list on 3 February 2016 at 10 am for a judge to determine the application for summary dismissal.

7. Both parties have attended today without representation, but each says that they have had advice.  In the case of the wife, she maintains this is a jurisdictional problem, and she has discussed with it law professors and a high-profile solicitor in Melbourne, whom she named in her affidavit.  For his part, the husband says that his lawyer in Country C, who he maintains is an expert, there recognised, has given him advice also. 

8. It was the registrar who suggested that this should be determined as a summary dismissal application.  The law in respect of summary dismissal is not controversial.  Rule 10.12 provides that:

   A party may apply for summary orders after a response has been filed if the party claims in relation to the application or response that:  (a) the Court has no jurisdiction;  (b) the other party has no legal capacity to apply for the orders sought;  (c) it is frivolous, vexatious or an abuse of process; or (d) there is no reasonable likelihood of success.

9. The power to order the summary dismissal of a claim must be exercised with “exceptional caution”.  (General Steel Industries Incorporated & Commissioner for Railways (NSW) [1964] HCA 69.) In Fancourt & Mercantile Credits Limited [1983] HCA 25, the Court said such an application:

   …should never be exercised unless it is clear that there is no real question to be tried.

10. In Dey & Victorian Railways Commissioners [1949] HCA 1, Dixon J, as he then was, said:

    The case must be very clear, indeed, to justify the summary intervention of the Court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court, with or without a jury.  The fact that a transaction is intricate may not disentitle a Court to examine the cause of action alleged to grow out of it for the for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious.  But once it appears that there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious and an abuse of process. 

11. It has also been said that an extensive legal analysis may be necessary in such cases to establish that the applicant’s case is so clearly untenable that it cannot possibly succeed.  Where the proceedings are unusual, such as here, a measure of caution should be exercised where not only is there an argument about the facts but also the law, because, on summary dismissal proceedings, the focus is narrow.  The assumption is that the facts as revealed to the Court are accepted. One simple way of looking at it, is whether the wife’s case is doomed to fail.  Absent evidence, I could not find that here.

12. In this case, the wife seems to accept some of the facts relied upon by the husband.  Although the word “jurisdiction” was bandied around, including, apparently, by lawyers, in my view, that is not the issue here. 

13. Section 39(4) of the Family Law Act1975 (Cth) (“the Act”) says:

    Proceedings of a kind referred to in the definition of matrimonial cause in subsection 4 may be instituted under this Act if:

    (a) in the case of proceedings between the parties to a marriage or proceedings of a kind referred to in paragraph (b) of that definition in relation to a marriage, either party to the marriage is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date; and

    (b) in any other case, any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date.  

14. There would seem to be little doubt in this case that the applicant satisfies all of those matters.  It is not suggested that the wife is seeking orders to harass the husband or that this claim is frivolous.  What the husband says, and the wife seems to agree, is that there are no assets in Australia. 

15. It is not accepted by the wife, but she failed to challenge the husband’s affidavit which he filed in October, that there are extant proceedings for a property settlement in Country C. 

16. As for the fourth of the issues in the rules, it is impossible for the Court to assess the merits of the wife’s claim on the evidence she has presented.  She does not know what the husband’s financial position is in Australia other than that he is unemployed.  She acknowledges that he has no assets here.  She has no knowledge of what assets he has overseas, other than she says that he has assets internationally. 

17. There is not a jurisdictional dispute here and, in reality, not a summary dismissal claim either.  This is a forum argument, as anticipated by the registrar a long time ago.  I propose to deal with it on that basis.  I have warned the parties that I would so determine it on the evidence that they presented. 

18. A forum issue concerns whether a stay should be granted against the wife continuing with the Australian proceedings. Jurisdiction to make a stay order is to be found in s 34 of the Act or, alternatively, in the inherent power of the Court to protect abuses of its process. The test for the determination of forum is whether this is the clearly inappropriate forum. (See, for example, Voth & Manildra Flour Mills Limited (1990) 171 CLR 538 and Henry & Henry (1996) FLC 92-685.)

19. In Henry, the High Court said that the test of clearly inappropriate forum was the test to be applied in this Court.  Convenience alone does not necessarily mean that the Local Court is clearly an inappropriate jurisdiction.  The question is whether or not the continuation of the proceedings would be oppressive in the sense of being seriously and unfairly burdensome, prejudicial or damaging or vexatious in the sense of being productive of serious and unjustified trouble and harassment. 

20. The onus lies with the husband to establish that the Australian jurisdiction is clearly inappropriate.  As set out in Henry, the matters to be considered by the Court include:

    a)whether, if both Courts have jurisdiction, each will recognise the other’s orders and decrees; 

    b)which forum can provide more effectively a complete resolution of the matters involved in the controversy;

    c)the order in which the proceedings were instituted and the stage and costs reached;

    d)the connection of the parties and their marriage with each of the requested jurisdictions;

    e)the issues surrounding the relief associated with those jurisdictions;  and

    f)whether, having regard to their respective resources and their understanding of the language, the parties were able to participate in either of the jurisdictions on an equal footing.

21. In Steen & Black (2000) FLC 93-005, this Court held that the various factors had to be balanced against each other. The Court said that, in that process, the appropriateness of a variety of issues was to be contemplated, including was there a significant connection between the forums selected and the subject matter of the action and the domicile and places of business of the parties; was there a legitimate and substantial juridical advantage to a party in this Court; and, whether the law of the forum be the substantive law to be applied in the resolution of the respective parties’ rights and obligations.

22. The various authorities all require an examination of each case on its peculiar facts and, ultimately, this is a balancing of various factors.  The exercise is therefore discretionary.

23. I turn first to the wife’s affidavit, much of which, unfortunately, was argument rather than evidence.  I have taken those arguments as her position.  What she said was that, as a result of discussions with Registrar Sikiotis, the registrar, who has not given formal reasons – and I interpolate, here, she does not have to – should have the wife’s case dismissed.  I have already dealt with that in the sense of examining whether there is a case at all or one which is doomed to fail. 

24. The wife’s affidavit then went on to say that the question of jurisdiction should be separated from the practicalities of enforceability and that even if the question of enforceability was considered at the same time, the Australian Court is in no worse, perhaps even in a better position, to enforce an outcome compared to a Country C court.  The difficulty with that argument, of course, is that to make an order, evidence will be needed as to value, as to contribution and as to the respective parties’ economic futures. That evidence seems (on both parties’ cases) to be outside of Australia.

25. The wife has already indicated that she has no funds and is not in a position to have a lawyer represent her. The possibilities, in the circumstances where the husband is also unemployed, of obtaining international valuations and considerable evidence to establish the matters required by s 79 of the Act seems to be to be most doubtful.

26. The wife’s argument then went on to say that in respect of the enforceability, she presumed that because an order was made, it would be carried out.  The difficulty with that argument, as I pointed out in discussion, is that there may be transfer of property issues as well as questions of various trust laws of Country C that need to be taken into account.  That is not to say, of course, that even on the wife’s position there are not assets in other countries of the world, but evidence would be needed to be gathered about those.  How that would occur, the wife did not say and having regard to her impecunious position, it is doubtful that it could be obtained.

27. The wife also filed an earlier affidavit in December 2015, which is much the same as what she relied upon for the January affidavit, but there was an additional paragraph that I have considered as a result of her statements in submission.  What she said in that affidavit was that, in respect of the proceedings which the husband has issued, and although she does not accept that these proceedings are on foot, it would seem that she received by mail documents indicating that there were proceedings in Country C.  She said she was given no direct email address, and the emails used a first-name last-name basis, as a well as a general Court email address. 

28. She was critical of that approach, indicating that she would not get justice, effectively, because if that is the way the Country C courts operated, it was inappropriate.  As I pointed out, however, I cannot imagine a country like Country C dealing with a property case without natural justice being applied.  The wife acknowledged in her affidavit that the husband has a Country C lawyer representing his interests.  That also seems clear on the basis of the documents that the husband provided.

29. Unfortunately, the husband’s affidavit was not much more helpful.  What he said, in an affidavit filed on 7 October, was that he was from Country C and his property was governed by Country C law, as the result of a divorce being granted.  That statement has no probative value because it purports to be a synopsis of the law in Country C.  Even if he was given that view by a lawyer in Country C, I am not prepared to accept it without some expert evidence being provided.  The husband then complained that his former wife did not go to Country C on 28 March 2014 when the property case was there listed, and perhaps, having regard to the wife’s position, that is hardly surprising.

30. The affidavit then went on to set out some background, most of which is relevant only to the background to the parties’ marriage.  He then added to the affidavit what was provided to him by a lawyer in Country C, and which, no doubt, could be obtained from the internet, but I am not at all convinced that that is the only law upon which a determination should be made.  It certainly appears consistent with the issue of jurisdiction, but in my view, I should not rely upon it. 

31. The husband said – and again, the wife had this affidavit prior to filing her affidavits – first, all of his assets are in Country C; all the documents in relation to the various assets are written in Country C; there are no assets in Australia except his car; and, he described the translation work as endless.  He said his investment company was based in Country C and was obliged to follow the Country C Company Act and the taxation of the company was carried out in that country according to that country’s tax laws.  He said the same applied to the capital gains on share transactions, where the taxes would also be applied.

32. He made reference to receiving an inheritance of €150,000 before marriage, and that, no doubt, would have some impact under the law of Country C, but as I have no expert evidence, I can only presume that it is of some relevance.  In Australia, it may very well be entirely different.  The husband’s argument was that the summerhouse and Country D fund holdings were acquired before the parties were married.  No doubt he had to prove all those things.  Documents would have to be obtained and translations obtained as well.

33. As I said, much of the evidence of the husband was unhelpful.  Ultimately, the uncontroversial facts in this case are that there is property but it is almost entirely in Country C.  The wife conceded there is no property in Australia.  There is no application by the husband to seek property settlement against the wife in respect of any assets that she has here.  I am unsure what his position is in relation to assets that she might own in Country C, if any.  She certainly did not asserts she has assets there.

34. The most significant factor, however, is that the proceedings in Country C were first in time.  That may not have been the case had the wife continued with her application in this court, which was commenced in 2014, even to the extent had she sought to apply to have the case reinstated prior to June 2014. 

35. Having taken all of those matters into account, as I earlier pointed out, this is a matter of discretion.  The questions I have to ask are which forum can provide, more effectively, a complete resolution of the matters involved in the controversy.

36. There is no connection with Australia other than that the parties are currently here, but all of the assets and the documents about them and the evidence associated with valuation is clearly in Country C. 

37. Another matter that I have to take into account is the order in which the proceedings were instituted and the stage and costs reached.  I have no clear understanding of where the proceedings in Country C are up to, but it is quite clear that they have advanced some way.  The wife’s case has been floundering in Australia for over two years, and she has done nothing about it.  Conversely, the husband has continued to pursue his relief in Country C.

38. A third issue is the connection to the parties and their marriage with each of the requested jurisdictions.  There is no simple solution to that conflict.  The wife is clearly wanting to remain in Australia.  The husband is here, unwillingly, and he says, according to his affidavit, that Country C is his home. 

39. The fourth issue relates to the issues surrounding the relief associated with both jurisdictions.  It seems to me that whilst the wife says that this court should not have a problem about enforcing its orders, she has not clearly thought through the problems.  I imagine significant problems associated with enforcing orders overseas, particularly if the courts there do not recognise Australian orders, and in this case, I have no evidence to indicate that that is the case. 

40. In addition, the powers under s 106A of the Act may not be able to be applied because a registrar’s order may not be recognised by the courts in Country C. The relief, therefore, sought by the wife, albeit vague at the moment, seems problematic.

1. The fifth matter relates to the question of the parties’ resources and their understanding of the language.  The wife says she has no capacity to understand the Country C language.  That undoubtedly prejudices her ability to participate in that jurisdiction.  Whilst the husband clearly has quite confident English language skills in Australia, he too has the disadvantage that he does not have any resources to do the sort of things that the wife wants him to do here anyway.  What she says is that he can conduct the proceedings with her in Australia but it would only be in relation to overseas assets.

2. As I pointed out, there are going to be significant problems associated with getting the evidence and the valuations.  Balancing all of those factors, in my view, the overwhelming situation here dictates the answer.  These proceedings have to be determined in Country C.  They cannot be determined in Australia on the evidence that I have before me. 

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 February 2016.

Associate: 

Date:  16 February 2016