Sweeney & Burniss
[2024] FedCFamC1A 145
•12 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sweeney & Burniss [2024] FedCFamC1A 145
Appeal from: Sweeney & Burniss [2023] FedCFamC1F 1032 Appeal number: NAA 362 of 2023 File number: SYC 5309 of 2023 Judgment of: TREE, HOGAN & SMITH JJ Date of judgment: 12 September 2024 Catchwords: FAMILY LAW – APPEAL – Property – Forum – Leave to appeal – Where the primary judge made orders permanently staying the parties’ property proceedings in Australia – Where it is uncontroversial the parties have lived in Country B since 2009 and have been engaged in proceedings there since 2023 – Assertion of legal error – Where the primary judge correctly applied the “clearly inappropriate forum” test – Assertion of discretionary error – Where the primary judge correctly considered the juridical advantages for the appellant continuing proceedings in Australia – Assertion of factual error – Where it was clearly open for the primary judge to find that the parties had limited connection with Australia – No error identified – Leave to appeal refused – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 78 and s 106B
Federal Circuit and Family Court of Australia Act (2021) (Cth) s 28 and s 35
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited: CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Henry v Henry (1996) 185 CLR 571; [1996] HCA 51
House v The King (1936) 55 CLR 499; [1936] HCA 40
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Obannon & Scarffe (2021) FLC 94-009; [2021] FamCAFC 33
Oceanic SunLine Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32
Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Taffa & Taffa [2014] FamCAFC 106
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Number of paragraphs: 63 Date of hearing: 1 May 2024 Place: Heard in Sydney, delivered in Brisbane Counsel for the Appellant: Mr North SC Solicitor for the Appellant: Lander & Rogers Counsel for the Respondent: Mr Cheshire SC and Ms Reid Solicitor for the Respondent: Lavan ORDERS
NAA 362 of 2023
SYC 5309 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SWEENEY
Appellant
AND: MR BURNISS
Respondent
ORDER MADE BY:
TREE, HOGAN & SMITH JJ
DATE OF ORDER:
12 SEPTEMBER 2024
UPON THE UNDERTAKING OF MR BURNISS, ON A WITHOUT ADMISSIONS BASIS, UP TO THE FINAL DETERMINATION OF ANCILLARY MATTERS (STAGE 2) OF THE HUSBAND’S DIVORCE PROCEEDINGS IN COUNTRY B, OR AS OTHERWISE AGREED BETWEEN THE APPELLANT AND RESPONDENT IN WRITING, HE WILL CONTINUE TO MEET THE SHORTFALL BETWEEN THE RENTAL INCOME RECEIVED AND THE MORTGAGE REPAYMENT TO THE COMMONWEALTH BANK OF AUSTRALIA FOR THE PROPERTY SITUATED AT AND KNOWN AS D STREET, SUBURB E IN WESTERN AUSTRALIA, BEING THE WHOLE OF THE LAND CONTAINED IN LOT … ON PLAN ….
AND UPON THE FURTHER UNDERTAKING OF MR BURNISS, ON A WITHOUT ADMISSIONS BASIS, GIVEN TO THE COURTS OF COUNTRY B, UP TO THE FINAL DETERMINATION OF ANCILLARY MATTERS (STAGE 2) OF THE HUSBAND’S DIVORCE PROCEEDINGS IN COUNTRY B, OR AS OTHERWISE AGREED BETWEEN THE APPELLANT AND RESPONDENT IN WRITING, HE WILL CONTINUE TO MEET THE SHORTFALL BETWEEN THE RENTAL INCOME RECEIVED AND THE MORTGAGE REPAYMENT TO THE COMMONWEALTH BANK OF AUSTRALIA FOR THE PROPERTY SITUATED AT AND KNOWN AS D STREET, SUBURB E IN WESTERN AUSTRALIA, BEING THE WHOLE OF THE LAND CONTAINED IN LOT … ON PLAN ….
THE COURT ORDERS THAT:
1.The appellant’s Application in an Appeal filed 15 April 2024 is dismissed.
2.The appellant’s application for leave to appeal is refused.
3.The appeal is dismissed.
4.The appellant pay, within thirty (30) days of the date of this order, the respondent’s costs of and incidental to the appeal in the amount of $92,586.
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 Sweeeny & Burniss has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, HOGAN & SMITH JJ:
On 5 December 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) found that Australia is a clearly inappropriate forum for the property settlement proceedings commenced by the appellant by Initiating Application filed on 24 July 2023 (the Australian proceedings) and, upon the acceptance of various undertakings proffered by the respondent, made an order permanently staying the same.
By an Amended Notice of Appeal sealed 22 March 2024, the appellant appeals that order and seeks, instead, that: the respondent’s application for a stay of the Australian proceedings is dismissed; the respondent be released from the undertakings which were conditional upon those orders being made; and the application for interlocutory relief is remitted for rehearing.
It is uncontroversial that the parties, who have lived in Country B since 2009, are currently engaged in the following proceedings in the Courts in Country B:
(a)child maintenance proceedings: which were commenced by the appellant on 23 March 2023 and which, it is common ground, will continue to be litigated in Country B; and
(b)divorce proceedings: which were commenced by the respondent on 16 August 2023 and which involve two stages:
(i)the first stage involves the Court making a finding that the marriage has broken down irretrievably and leads to an interim judgment; and
(ii)the second stage involves the Court making orders on ancillary matters such as the division of matrimonial property, spousal maintenance, child maintenance, and/or children’s issues and rights, and leads to an ancillary matters order and subsequently a Certificate of Final Judgment.
It is also uncontroversial that the appellant unsuccessfully sought an order in Country B to stay the divorce proceedings commenced by the respondent there and that the respondent unsuccessfully sought an anti-suit injunction in Country B against the appellant in relation to the Australian proceedings.
Application for further evidence
By an Application in an Appeal sealed 15 April 2024, the appellant sought to be permitted to adduce further evidence: namely, her affidavit, also sealed 15 April 2024, and the exhibited bundle of documents referred to therein. The respondent also sought to adduce further evidence, by way of his affidavit sealed 26 April 2024, of, amongst other things, the status of the Country B proceedings since the December 2023 orders were made.
At the hearing of the appeal on 1 May 2024, and within the Response to an Application in an Appeal sealed 26 April 2024, counsel for the respondent conceded that, of the material sought to be adduced by the appellant, only material which post-dated the hearing before the primary judge should be admitted – and only in relation to the re-exercise of the discretion if the appellant succeeded in persuading the Court of that course. Counsel for the appellant did not oppose the receipt of the further evidence upon which the respondent sought to rely.
The discretionary power to receive further evidence on appeal is conferred on this Court by s 35 of the Federal Circuit and Family Court of Australia Act2021 (Cth), which is in the following terms:
Evidence on appeal
In an appeal, the Federal Circuit and Family Court of Australia (Division 1):
(a)must have regard to the evidence given in the proceedings out of which the appeal arose; and
(b)has the power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be given:
(i)as provided for in Division 2 of Part XI of the Family Law Act 1975; or
(ii) by oral examination before the Court or a Judge; or
(iii) otherwise in accordance with section 73 of this Act.
Given the undertakings proffered on behalf of the respondent and accepted by the Court other than evidence which is not in dispute, we are not persuaded that the primary purpose of ensuring that the proceedings do not miscarry persuades of the admission of such evidence (CDJ v VAJ (No 2) (1998) 197 CLR 172 at [104]–[111]; also, in particular, [114]). For the avoidance of doubt, material available to the appellant prior to the hearing before the primary judge is not received.
Leave to Appeal
It was accepted that the appellant required leave to appeal (Federal Circuit and Family Court of Australia Act (2021) (Cth) s 28(3)(e)(i); Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02(1)(a); Taffa & Taffa [2014] FamCAFC 106).
The test to be applied in determining whether leave to appeal should be granted is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether a substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692 at [55]–[57]).
As we shall shortly detail, we are not persuaded, in all the circumstances, that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; because the appellant is able to continue the proceedings in the Courts in Country B, we are also unpersuaded that, supposing the decision to be wrong, a substantial injustice would result if leave were refused.
Given these conclusions, we decline to grant the required leave; however, in case we are wrong in arriving at this decision, we address the appellant’s grounds of appeal below.
Some general comments
In so far as the challenges to the exercise of discretion are concerned, it is, as always, apposite to have regard to the principles enunciated in House v The King (1936) 55 CLR 499 at 504–505 that:
...The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Gronow v Gronow (1979) 144 CLR 513, Stephen J at 519–520 held:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In addition, in Oceanic SunLine Shipping Co Inc v Fay (1988) 165 CLR 197 Deane J said, at 247–248:
Th[e] power [to stay proceedings on forum grounds] is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression.
Consequently, to the extent that the appellant’s complaint includes the expression of dissatisfaction with the exercise of discretion by the trial judge (including that certain considerations were not given adequate weight, whilst others were given too much weight), she confronts these difficulties.
Ground 1: asserted error by adopting the “more appropriate forum” test and not the “[clearly] inappropriate forum” test
There is no suggestion by the appellant that the trial judge failed to identify those principles which apply to the determination of the respondent’s application to stay the Australian proceedings on the ground that Australia is a clearly inappropriate forum.
What is contended, though, is that the trial judge failed to apply such principles and instead determined the matter by applying the “more appropriate forum” test (Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460) rather than the “clearly inappropriate forum” test.
We accept, as was submitted by Senior Counsel for the respondent, that it is clear the primary judge was well aware of the test that was required to be applied. We also accept that she approached the matter consistently with the approach outlined by the High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (‘Voth’): which included, as part of demonstrating the exercise of the discretion involved in determining applications such as that which was before her, expressing those factors which favoured the making of the order sought by the respondent at first instance and those factors which persuaded of the opposite conclusion.
We reject the contention that, in approaching the consideration of the applicable principles in the manner that she did, the primary judge erred; we are not persuaded that the primary judge applied the more appropriate forum test and we consider that she considered, as she was required to do, whether, in all the circumstances of the case, Australia is a clearly inappropriate forum for the determination of property settlement proceedings between the parties. In the exercise of the discretion accorded to judges at first instance, her Honour concluded, for the reasons expressed, that she considered that it is.
Ground 1 fails.
Leave sought to amend Ground 2
Senior Counsel for the appellant sought leave at the hearing of the appeal to amend Ground 2 of the grounds of appeal such that it would be as follows:
The primary judge erred by failing to consider as a relevant factor that the Appellant had regularly invoked the jurisdiction of the Family Court, and that the law of the forum was applicable in resolving the dispute with respect to property and had a prima facie right to its exercise.
Senior Counsel for the respondent opposed the application.
The contention that the law of Australia would be the law which the Country B Court would be required to apply in its determinations of the competing applications before it was not made to the primary judge. Consequently, the appellant is constrained in this appeal by the way in which her case was conducted before the primary judge (Metwally v University of Wollongong (1985) 60 ALR 68 at [71]) (‘Metwally’).
As we are not persuaded the “exceptional circumstances” referred to in Metwally exist and because we consider the contention that the law of Australia was to be the law to be applied in Country B was something that may have altered the nature of the evidence adduced by the parties at the trial (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418) (‘Suttor’), we are not persuaded that it is appropriate to permit the appellant to amend Ground 2 of the grounds of appeal advanced so as to enable her to advance this proposition.
Ground 2: asserted error by allegedly failing to consider as a relevant factor that the appellant had regularly invoked the jurisdiction of the Court and had a prima facie right to its exercise
Given the specific reference at [32] of the Reasons for Judgment to the comments in Voth – which specifically refers to “proceedings which have been regularly instituted within jurisdiction” – and the recitation of the matters at [37(b)] and [37(d)] of the Reasons for Judgment, we do not accept that the primary judge failed to consider that the appellant had regularly invoked this Court’s jurisdiction or that there was a failure to consider that which flows from such invocation: namely, the prima facie right to its exercise.
We also note that the Case Outline sealed 30 October 2023, relied on by the appellant before the primary judge, repeatedly informed that she had regularly invoked the Court’s jurisdiction (see, for example, paragraphs 5.11 and 5.18.2) and that the submissions made on behalf of the respondent before the primary judge clearly accepted that the appellant had regularly invoked the Court’s jurisdiction.
Ground 2 fails.
Ground 3: asserted error in failing to adequately consider the juridical advantages for the appellant in the continuation of proceedings in this Court
Senior Counsel for the respondent submitted that, given that, before the primary judge, the appellant had asserted that there were only three juridical advantages (namely, the ability to seek an order for litigation funding, the ability to join third parties to the family law proceedings, and the ability to seek an order under s 106B of the Family Law Act 1975 (Cth) (‘the Act’) [albeit that it was conceded that it was unknown whether such an order would even be necessary]), the matters listed at paragraph 35 of her Summary of Argument had not been argued before the primary judge and, consequently, the ground must fail (Metwally). It was also submitted that, before the primary judge, the appellant accepted that the primary judge could not say how long the proceedings would take in Australia, even in the Major Complex Financial Property List, and that it was a “neutral matter”.
We do not accept that the primary judge failed to adequately consider the juridical advantages for the appellant in continuing proceedings in this Court. Regard to the Reasons for Judgment reveals that matters particularised in the appellant’s Case Outline were specifically discussed by the primary judge (see, for example, the Reasons for Judgment at [37(a)], [37(e)(i)], [37(e)(ii)], [37(e)(iii)], [37(e)(iv)], and [37(g)]).
Further, given the passage in Voth to which the primary judge specifically referred in paragraph [33] of the Reason for Judgment, any omission to set out specifically the various internal practices of this Court, or to engage in an evaluation of the difference between the substantive law of Australia and Country B, and/or to resolve the apparent difference between the parties about whether there is, in fact, a “substantive divergence”, is hardly surprising.
Ground 3 fails.
Ground 4: asserted error in placing significant weight on the finding that continuation of the Australian proceedings will not resolve the entire matrimonial dispute
We consider it relevant to note that, before the primary judge, the matter proceeded on the basis that, irrespective of the determination of the application for a stay of the property settlement proceedings commenced by the appellant in Australia some four months after she commenced proceedings for child maintenance in Country B, such latter proceedings – and proceedings to resolve the parenting issues between the parties – would continue in Country B. That this was the case gives context to the primary judge’s finding that the parties’ “entire matrimonial dispute can be more effectively resolved in Country B”.
Whilst we accept that the agitation of a different cause of action, such as that for parenting orders, in another forum (here, Country B) does not preclude the continuation of property settlement proceedings in the chosen forum (here, Australia), the absence of such a preclusion does not mandate the conclusion that Australia is not a clearly inappropriate forum.
We accept that the weight to be attached to this consideration, being one of many to which the primary judge was required to, and did, turn her mind, was quintessentially one for her in the exercise of the discretion reposed in judges at first instance. We are not persuaded that the result of the primary judge’s determination is unreasonable or plainly unjust.
Ground 4 fails.
Ground 5: asserted error in finding that the parties have limited connection in Australia and in placing significant weight on this finding
It is uncontroversial that both parties intend to continue to live in Country B. Given this, it is unsurprising that the primary judge did not specifically address the matters referred to in paragraph 41 of the appellant’s Summary of Argument.
Regard to the Reasons for Judgment reveals that some of the matters particularised in the appellant’s Case Outline were specifically discussed by the primary judge at, for example, [37(a)] and [38(a)]. Such regard also makes plain that the primary judge made findings about such connecting factors as the location of likely witnesses, that Country B is where the parties last cohabitated and lived for 15 years, and where they continue to reside and carry on business. Further, as was submitted on behalf of the respondent, there was no challenge to the primary judge’s finding that “irrespective of where the property proceedings are determined, the valuation of the entities will involve experts from foreign jurisdictions” (Reasons for Judgment at [38(b)]) – a conclusion we consider as having relevantly dealt with the issue of the location of the parties’ assets.
It was, we consider, clearly open to the primary judge to find that the parties had limited connection with Australia. Noting the difficulties associated with appeals in relation to discretionary decisions, we are not persuaded that the primary judge erred in the appellate sense or that the result of her determination is unreasonable or plainly unjust.
Ground 5 fails.
Ground 6: asserted error in finding that there would likely be some overlap of financial issues in Australia and Country B and that the potential thereby for inconsistent findings of fact was a relevant consideration and failing to give adequate reasons for this finding
It was submitted on behalf of the appellant that the primary judge erred by finding there would be some overlap between the Australian and Country B proceedings because the child maintenance prosecuted by her in Country B, and the property proceedings the subject of the respondent’s successful application for the orders in respect of which this appeal is brought, are not parallel; it was submitted that different causes of action may be agitated in different forums and this fact does not preclude the continuation of the property proceedings in the forum chosen by the appellant.
We accept the submissions made by Senior Counsel for the respondent to the effect that, had the appellant successfully resisted the applicant’s application for a permanent stay of the Australian proceedings, the divorce proceedings initiated by the respondent in Country B would remain on foot; given the expert evidence before the primary judge was that, as soon as the same advanced to Stage 2, the Courts in Country B would deal with the division of matrimonial assets, spousal maintenance, child’s maintenance, and children’s welfare issues, there would then be parallel proceedings on foot in Country B and Australia in relation to the property adjustment.
As the High Court observed in Henry v Henry (1996) 185 CLR 571 (at 590–591), parallel proceedings between the same parties and with respect to the same issue or controversy is highly relevant to the question of whether the local proceedings are oppressive or vexatious and courts should strive to avoid that situation. We consider that this is what the primary judge, in the exercise of the discretion accorded to judges at first instance, did; the findings made about the likelihood of some overlap of financial issues and the potential for inconsistent findings of fact about matters associated with the same were open to her.
In so far as it was submitted that the primary judge did not say why the possibility of different findings as to the respondent’s income, earning capacity and financial resources would be vexatious and oppressive, we consider that it could hardly be thought to be anything but that.
Ground 6 fails.
Ground 7: asserted error in placing significant weight on a finding that continuation of the property proceedings in Australia would necessarily involve the retention of lawyers in the matrimonial dispute in both Country B and Australia which would involve at least some additional legal costs
It was submitted on behalf of the appellant that there was no evidence that a continuation of the Australian proceedings would involve some additional legal costs and, consequently, the primary judge erred in making such a finding and placing significant weight upon it.
We do not accept that there was no evidentiary basis for the primary judge to find that a continuation of the property proceedings in Australia would necessarily involve the retention of lawyers in the matrimonial dispute in both Country B and Australia, which would involve at least some additional legal costs. As the primary judge set out (Reasons for Judgment at [25]), at the time of the hearing, the parties had already spent a total of $334,723 (the appellant having spent $138,393 and the respondent $196,330) in the Australian proceedings which had only commenced in late July 2023. Such expenditure seems to us to provide an ample evidentiary basis for the inference drawn by the primary judge that a continuation of property proceedings in Australia, at the same time as the child maintenance proceedings and proceedings to resolve the parenting issues would continue in Country B, would involve some additional legal costs.
We consider the finding that the continuation of the property proceedings in Australia would necessarily involve the retention of lawyers in the matrimonial dispute in both Country B and Australia, which would involve at least some additional legal costs, was open to the primary judge.
It was also contended that the primary judge erred in failing to consider that a stay of the Australian proceedings would cause wasted costs. However, it does not seem to us that this issue was raised before the primary judge; rather, the material before, and the submissions made to, the primary judge focused upon whether the Country B Court was able to make an interim costs order and the respondent’s asserted need for funds to carry on two sets of proceedings (albeit that the latter was conceded to be without evidentiary basis), rather than raising the contention that the parties would be at any significant loss if the Australian proceedings were stayed.
Ground 7 fails.
Ground 8: asserted error in failing to adequately consider the difficulty of enforcement of an order that property in Australia be transferred by the respondent to the appellant and asserted error in concluding that s 78 of the Family Law Act 1975 (Cth) provides a means by which an order for transfer of property in Australia can be enforced
There is no challenge to the primary judge’s finding that the respondent purchased real property in Western Australia as an investment in 2009 (Reasons for Judgment at [13]); it is accepted that he is the registered owner of this property (appellant’s Summary of Argument sealed 22 March 2024 at paragraph 40(j)).
Senior Counsel for the appellant submitted that Obannon & Scarffe (2021) FLC 94-009 (‘Obannon’), relied upon by the primary judge as providing the basis for the conclusion that all orders sought by the appellant could be made by a Country B Court and that the Court’s orders were capable of enforcement in Australia, is clearly wrong and should not be followed. It was also submitted that:
(a)an order made in Country B as to the ownership of real property owned by the respondent in Western Australia would be an order in personam and, consequently, would not create an actual legal or beneficial interest in the property that could be the subject of declaration pursuant to s 78 of the Act or consequential orders for enforcement; and
(b)whilst the respondent had undertaken that, if the relevant court in Country B made an order that he transfer his interest in the property in Western Australia to the appellant, he would then consent to the enforcement of that order in Australia if necessary, he had not said that he would consent to an order that the appellant receive this property.
Section 78 of the Act provides:
Declaration of interests in property
(1)In proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of the property.
(2)Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.
In Obannon, the Court said, at [116]:
We consider that the primary judge erred in principle in concluding that orders in Country B “are likely to be of little utility”. As was discussed in Pierson & Romilly by reference to Kemeny v Kemeny and Gilmore and Gilmore s 78 of the Act allowing for declarations of interests in property is an available means of enforcement of foreign orders. [Citations omitted]
Before the primary judge, the respondent relied on Obannon to submit that an order made in Stage 2 of the proceedings in Country B for the transfer of the real property owned by the respondent in Western Australia would be enforceable in Australia pursuant to s 78 of the Act. He also contended that the undertaking recorded at clause 4 of the orders provided the appellant with a method for enforcement in Australia without the necessity for recourse to s 78 proceedings.
The contention that Obannon is clearly wrong and should not be followed was not raised on behalf of the appellant before the primary judge. Given this, the respondent submitted that the appellant should not be permitted to agitate such an argument for the first time on appeal.
It is well-established that, other than where all the facts have been established beyond controversy or where the point is one of construction or of law and the court, in its discretion may find it expedient and in the interests of justice to entertain the point, a point that has not been taken in the court below cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below (Suttor at 438; Water Board v Moustakas (1988) 180 CLR 491 at 497; Metwally at 483).
In circumstances where:
(a)the absence of an assertion by the appellant that she has an equitable interest in the Western Australia property means that the Country B Court will not be required to make findings in relation to the ownership of the same; and
(b)an order made by the Country B Court, in proceedings to which the wife is a party, that the respondent do things or sign documents in relation to the Western Australia property would bind him in personam in Country B; and
(c)the primary judge accepted the respondent’s undertaking that “in the event that the Country B Courts makes a final order on the division of matrimonial assets in the divorce proceedings in Country B that the husband transfer the ownership of the property situated at and known as D Street, Suburb E in Western Australia to the wife, the husband will give effect to such a final order and consent to enforcement of that order in Australia (if necessary)”, which undertaking is, of itself, enforceable in this Court; and
(d)the failure to contend before the primary judge that Obannon was wrongly decided deprived the respondent of the opportunity to not only argue that the relief he sought should still be granted (even if s 78 of the Act was not available to aid in enforcement) but also to adduce evidence about other means, such as the signing of transfers to be held in escrow, the irrevocable appointment of attorneys and instructions to Australian lawyers, by which any concerns about enforcement could be ameliorated,
we are not persuaded that it is expedient or in the interests of justice to entertain the point sought now to be taken by the appellant.
The primary judge did not err as contended for by this Ground and it fails.
Conclusion
The primary judge identified and carefully weighed the various factors and exercised her discretion in relation to the matter. Having regard to the ordinary principles in relation to a challenge to a discretionary judgment and the clear indication made by the High Court in Voth about the procedure in cases which require the determination of the issue of whether Australia is a clearly inappropriate forum and the scope of appellate review in the same, we consider that the primary judge’s conclusion fell within the wide ambit of the discretion applicable here.
For the reasons expressed above, if leave to appeal had been granted, the appeal would have been dismissed.
Costs
In the event that the appeal was dismissed, the respondent sought an order that the appellant pay costs in the amount of $92,586, said to have been calculated on the party and party basis. Given that no submissions contrary to the quantum sought were made on behalf of the appellant, an order shall be made requiring the appellant to pay the respondent’s costs of the appeal fixed in the amount of $92,586.
As no submissions were made on behalf of the appellant to seek an extended period of time within which to pay such costs, the order will require that payment be made within thirty days, as this is the period commonly ordered.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Hogan & Smith. Associate:
Dated: 12 September 2024
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