Sweeney & Burniss
[2023] FedCFamC1F 1032
•5 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Sweeney & Burniss [2023] FedCFamC1F 1032
File number(s): SYC 5309 of 2023 Judgment of: CAREW J Date of judgment: 5 December 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – STAY APPLICATION – Where the husband seeks to stay the wife’s property proceedings in Australia on the basis of forum non conveniens – Where the husband commenced divorce proceedings in Country B – Where the husband proffers an undertaking to preserve existing assets pending finalisation of divorce proceedings in Country B – Where the husband proffers additional undertakings to pay to the wife litigation funding and facilitate enforcement in Australia of any order for a transfer of a real property in Western Australia made by a court in Country B – Where the parties have a limited connection to Australia – Where continuing proceedings in Australia will not resolve the entire matrimonial dispute – Where there is potential for inconsistent findings of fact – Where Australia is a clearly inappropriate forum – Application for stay granted. Legislation: Family Law Act 1975 (Cth) ss 45, 75(2), 78, 79, 106B
Foreign Judgments Act 1991 (Cth) s 5
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.06
Cases cited: Bao v Qu; Tian (No 2) (2020) 102 NSWLR 435
Chen & Tan [2012] FamCA 225
CSR Ltd v Cigna Insurance Australia Limited (1997) 189 CLR 345
Henry & Henry (1996) 185 CLR 571
Obannon & Scarffe (2021) FLC 94-009
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
Spiliada Maritime Corp. v Consulex Ltd [1987] AC 460
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Davies, Martin, Nygh’s Conflict of Laws in Australia (Lexis Nexis Butterworths Australia, 10th edition, 2020)
Number of paragraphs: 42 Date of last submission/s: 1 December 2023 Date of hearing: 6 November 2023 Place: Brisbane via Microsoft Teams Video Counsel for the applicant: Mr Cummings SC Solicitor for the applicant: Lander & Rogers Counsel for the respondent: Mr Cox SC with Ms Reid Solicitor for the respondent: Lavan ORDER
SYC 5309 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SWEENEY
ApplicantAND: MR BURNISS
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
5 DECEMBER 2023
UPON THE UNDERTAKING of Mr Burniss, (“the husband”), on a without admissions basis, up to the final determination of the husband’s divorce proceedings in Country B (Case No. …), that he will not:
(1)Sell, mortgage, assign, dispose of, alienate or further encumber any and all real properties within and outside of Australia held in his sole name or jointly with any other person or entity, including but not limited to the property situate at and known as D Street, Suburb E in Western Australia, being the whole of the land contained in Lot … on plan …; and
(2)Transfer, alienate, or mortgage his shares in:
(a)F Capital Pty Ltd;
(b)F Holdings Ltd;
(c)F Partners;
AND UPON THE FURTHER UNDERTAKING of the husband on a without admissions basis, up to the final determination of the husband’s divorce proceedings in Country B (Case No. …), that he will not:
(3)Take any step that reduces his interest (or the interest of an entity the husband controls) in any of the companies listed at Schedule 1 to this Order, including:
(a)Transferring any shares of the husband (or an entity in which the husband controls) to any other person or entity unless that entity is also controlled by the husband;
(b)Voting in favour of issuing further shares in any entity that would dilute the husband’s interest in same;
without the husband first providing to Ms Sweeney (“the wife”) not less than 14 days prior notice in writing of his intention to do so, except in relation to transactions in the ordinary course of business.
AND UPON THE FURTHER UNDERTAKING of the husband that:
(4)In the event that the Country B Court 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 situate 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); and
(5)On a without admission basis as to the necessity for the wife for litigation funding, to provide an undertaking to the Country B Courts within 29 days from the date of an order permanently staying the wife’s Initiating Application SYC 5309/2023, or within 7 days of the determination of any appeal of an order permanently staying the wife’s Initiating Application SYC 5309/2023 in the following terms:
“I will provide, within 60 days from the receipt of invoices rendered by the wife’s lawyers, litigation funding of up to AUD$50,000 on any occasion. The wife shall not make any new request for litigation funding within 60 days of a prior request. The total amount of litigation funding provided to the wife will not exceed AUD$100,000. Such payment of litigation funding will be made directly to the wife’s lawyers.”
THE COURT ORDERS THAT:
1.The proceedings SYC 5309/2023 commenced by the wife by Initiating Application filed on 24 July 2023 (as amended) be permanently stayed.
AND THE COURT NOTES:
A.The wife’s admission that there is currently no basis for the wife to apply for any litigation funding at this early stage of the proceedings; and
B.In the event that there are grounds for the wife to give notice to the husband under paragraph (5) (above) for funds for litigation funding, the husband contends that he may be required to reduce his interest in the companies listed in Schedule 1 in order to transfer such funds to the wife.
C.The husband’s undertaking given to this Court on 5 September 2023 was accepted by the Court pending determination of the husband’s stay application which has now been determined.
SCHEDULE 1
Companies in which the husband has an interest
Australia
M7 Holdings Pty Ltd
M7 Pty Ltd
M8 Holdings Pty Ltd
M8 Pty Ltd
M9 Holdings Pty Ltd
M9 Pty Ltd
M10 Holdings Pty Ltd
M10 Pty Ltd
F Capital Pty Ltd
F1 Pty Ltd
F1 Property Pty Ltd
F2 Pty Ltd
F2 Property Pty Ltd
F2 Management Pty Ltd
F Partners Investment Pty Ltd
F Property Partners Pty Ltd
F3 Pty Ltd
F4 Pty Ltd
N Pty Ltd
N Funds Pty Ltd
M2 Pty Ltd
M3 Pty Ltd
M4 Pty Ltd
M5 Pty Ltd
P Pty Ltd
F Partners Pty Ltd
M1 Pty Ltd
M6 Pty Ltd
Country G
Q Ltd
F Holdings Ltd
F5 Ltd
R Holdings Ltd
S Ltd
Country H
T Company
U Ltd
V Ltd (Country H)
Country J
W Ltd
Country B
AA Company (Country K)
F Partners
BB Company
F2 Company (Country B)
F2 Company
V Company (Country B)
F6 Company
Country K
AA Ltd
Country L
F2 Ltd (Country L)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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
Currently there are matrimonial proceedings between a separated couple, Ms Sweeney (“the wife”) and Mr Burniss (“the husband”), in both Country B and Australia. The wife and the husband and two of their three children live in Country B. The parties have not resided in Australia since 2007. The wife commenced child maintenance proceedings in Country B in early 2023 and property proceedings in Australia on 24 July 2023. The husband seeks dismissal or a permanent stay of the property proceedings in Australia.
If the proceedings are not stayed, the wife seeks various injunctions against the husband by way of asset preservation, an anti-suit injunction restraining the husband from taking any further step in the divorce proceedings in Country B, and disclosure. As the proceedings in Country B have not yet reached the final stage, it is common ground that the anti‑suit injunction is premature. It is also conceded by the wife that if a stay is granted, her other relief, i.e. asset preservation injunctions and disclosure, falls away.
Irrespective of the outcome of the husband’s application for a stay of the wife’s Australian proceedings, the husband proffers to this Court an undertaking to preserve existing assets, most of which he controls, pending finalisation of the husband’s divorce proceedings in Country B.
The parties were given an opportunity to confer about the form of the proposed undertaking. As the undertaking proffered by the husband is not to the satisfaction of the wife, the parties have, by agreement, each filed brief written submissions about whether the undertaking should be accepted, or alternatively whether injunctions against the husband should issue (if a stay is not granted), and it was further agreed that these matters should be determined in Chambers.
The husband proffers additional undertakings expressed as a condition to the stay of the Australian proceedings: to pay up to $100,000 to the wife by way of litigation funding on certain conditions, and to facilitate enforcement in Australia of any order for a transfer of a real property in Western Australia made by a court in Country B. I take it that the husband is thereby indicating that the undertakings are proffered only in circumstances where a stay is granted.
For the reasons which follow, the proceedings commenced in Australia by the wife on 24 July 2023 will be permanently stayed.
BACKGROUND:
The parties commenced cohabitation in 2002 and married in 2003. They separated on 31 October 2022. The parties have three children, aged 16, 14 and 12 respectively. The two youngest children live with the wife in Country B, where the parties have lived since 2009. The eldest child moved to the United States of America to study full time in 2023.
The wife is 46 years of age and employed in Country B with CC Company. The wife’s average annual income is $402,116. The wife contends that her expenses currently exceed her income by nearly $10,000 per week. Included in her expenses are expenses for the children of $10,149 per week. The wife’s application for child maintenance, which is pending in Country B, seeks a payment from the husband of over $30,000 per month.
The husband is 53 years of age and was formerly a finance professional but now operates various businesses through an impressive list of entities located in Country B, Australia, Country H, Country G, Country L, Country J, and Country K.
The husband describes his current role as “gather[ing] investors to purchase and invest in assets and businesses”, and the business model involves acquiring and selling assets and businesses. The husband contends that there are three main business structures/groups involved different industries. Each of the groups is comprised of multiple entities and involves significant third‑party investors. The husband contends that the businesses manage over 50 building tenancies. Currently the businesses have “several hundred million [dollars] in loans spread between (sic) a number of banks”. The husband contends that he does not have sole control over any of the groups and that he has different partners and co-directors in each group.
The husband disputes the wife’s assertion that the bulk of the assets in which the husband has an interest are in Australia and points to the following:
(a)His 100% shareholding in F2 Company (a Country B company);
(b)His 100% shareholding in F Partners (a Country B company);
(c)His 100% shareholding in F Capital Pty Ltd (an Australian company) which in turn owns a 50% shareholding in P Pty Limited (also an Australian company);
(d)His 100% shareholding in F Holdings Ltd (a Country G company), which in turn owns a 50% shareholding in both F2 Management Pty Ltd and F Property Partners Pty Ltd (also Australian companies).
The husband further contends that the business operations of F Capital Pty Ltd and F Holdings Ltd are managed in Country B.
In 2009, the husband purchased a property in Suburb E, Western Australia as an investment. The wife is seeking that this property be transferred to her as part of any property settlement. The parties have never lived in the property.
In early 2023, the wife commenced child maintenance proceedings in the Family Courts in Country B. Those proceedings are ongoing, and it is common ground that the child maintenance proceedings will continue to be litigated in Country B. Each party has provided disclosure in relation to the child maintenance proceedings and filed affidavits. The husband contends that he has provided documents pertaining to his income, assets, liabilities, and financial resources including interests in Country B and Australia comprising some 723 documents. The husband contends that he has provided further disclosure through a report by an expert accountant as to his “income and the impact of the current economic factors on [his] business”. Each party contends that the other’s disclosure in relation to the child maintenance proceedings has been inadequate.
In mid-2023, the husband commenced divorce proceedings in the Family Courts in Country B. The relief claimed by the husband in those proceedings includes the following:
(a)Dissolution of the marriage;
(b)Joint custody, care and control of the children to the husband;
(c)Access to the children by the wife;
(d)Equitable division of the assets;
(e)No maintenance for the wife; and
(f)Child maintenance.
The divorce proceedings in Country B will proceed in two stages. The first stage involves the Family Courts in Country B making a finding that the marriage has broken down irretrievably, leading to an interim judgment. As there are children, the parties are required to go to mediation. The second stage involves the making of orders on ancillary matters, i.e. division of matrimonial property, spouse maintenance, child maintenance, and/or children’s issues and rights, leading to an ancillary order and subsequently a final judgment.
In the absence of ongoing divorce proceedings, the Family Courts in Country B have power to make interim orders relating to only the issues of spouse maintenance, child maintenance, and children’s issues and rights. Any such order may be varied, when the Family Courts in Country B are later determining ancillary matters any divorce proceedings. In the absence of divorce proceedings, the interim orders can be final.
Finalisation of an uncontested divorce will usually take approximately four to eight months, while a contested divorce will usually take between 10 months to more than a year. The second stage could take between one year and three years for the final hearing of the ancillary matters and for judgment to be delivered.
The husband also sought an anti-suit injunction against the wife in Country B in relation to the Australian proceedings, but his application was dismissed in mid-2023. The husband’s appeal against that decision is pending.
In mid-2023, the wife filed an appearance in the divorce proceedings contesting the forum and otherwise indicating that she would want to be heard in relation to all claims. At paragraph 3 of the appearance the wife states:
I am a wife Defendant. I wish to make a claim for maintenance for myself.
It is common ground that any parenting proceedings will be heard in Country B.
In late 2023, the wife filed an application in Country B to stay the husband’s divorce proceedings, but her application was dismissed. The wife’s appeal against that decision is pending.
Very recently, the wife filed an application for divorce in Australia. It is yet to be served on the husband.
The parties were also involved in personal protection litigation in Country B arising from allegations of family violence made by the wife against the husband. The wife filed an application in late 2022 but withdrew her application in late 2023 upon the husband providing certain undertakings, without admission, to the Family Courts in Country B.
The husband has incurred legal fees in Country B to date of $170,540 in Country B currency and in Australia of $196,330. The wife has incurred undisclosed legal fees in Country B and in Australia of $138,393.
Neither party submitted that the appeals pending in Country B were relevant to my determination or that any stay ordered should thereby be temporary.
APPLICABLE LEGAL PRINCIPLES
It is not in contention that this Court has the power to stay its own proceedings, although, not as submitted by the husband, pursuant to s 45 of the Family Law Act 1975 (Cth) (“the Act”), which applies to competing proceedings between courts exercising jurisdiction under the Act.[1]
[1] Chen & Tan [2012] FamCA 225 at [24].
Section 45 relevantly provides:
(1)Where there are pending in a court proceedings that have been instituted under this Act and it appears to that court that other proceedings that have been so instituted in relation to the same marriage or void marriage or the same matter are pending in another court, the first‑mentioned court may stay the first‑mentioned proceedings for such time as it considers appropriate or may dismiss the proceedings.
(1A) …
(1B) For the purposes of subsection (1):
(a)a de facto financial cause instituted in relation to a de facto relationship; and
(b) …
are taken to be proceedings under this Act in relation to the same matter.
…
The reference in 45(1) to “other proceedings that have been so instituted” must refer to proceedings commenced under the Act.
This Court nevertheless has an implied power to “prevent its own processes being used to bring about injustice”[2] and r 1.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides a general power to stay a proceeding or part of a proceeding.
[2] CSR Ltd v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 391.
The applicable legal principles are not in contention. The appropriate test is whether Australia is a ‘clearly inappropriate forum’[3] and the husband bears the onus of establishing that to be so.[4]
[3] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564–565 (“Voth”); Henry & Henry (1996) 185 CLR 571 (“Henry”).
[4] Voth (fn 3) at 554–555, 564–565; Henry (fn 3).
The High Court of Australia in Voth v Manildra Flour Mills Pty Ltd (“Voth”),[5] adopted as correct the test articulated by Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay:[6]
... it is possible to identify in summary form what I see as the modern content of the traditional principles governing the power of a court in this country to order that proceedings which have been regularly instituted within jurisdiction should be dismissed or stayed on inappropriate forum grounds. That power 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 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. The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff. Otherwise, that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties.
…
…"oppressive" should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while "vexatious" should be understood as meaning productive of serious and unjustified trouble and harassment.
[5] Voth (fn 3) at 554, 564–565.
[6] (1988) 165 CLR 197 at 247–248.
Relevantly, the High Court in Voth also held:
… the question which the [clearly inappropriate forum] test presents … focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums. That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum….
The availability of relief in a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one. But such a decision neither turns upon an assessment of the comparative procedural or other claims of the foreign forum nor requires the formation of subjective views about either the merits of that forum's legal system or the standards and impartiality of those who administer it.
…
… In deciding whether to grant or refuse a stay, the court does not, indeed cannot, evaluate the justice or relative merits of the substantive laws of the available forums (including the chosen forum)…
The High Court in Voth accepted that in the application of the clearly inappropriate forum test, the discussion by Lord Goff of Chieveley in Spiliada Maritime Corp. v Consulex Ltd,[7] about “relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance” but is not decisive.[8]
[7] [1987] AC 460 at 477–478, 482–484.
[8] Voth (fn 3) at 564–565.
In the context of the application of the clearly inappropriate forum test in family law proceedings, the High Court in Henry,[9] said:
39.Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy.
40.Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be 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. Moreover, it will be 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. The list is not exhaustive. Rather, 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.
(Footnotes omitted)
[9] Henry (fn 3) at 592–593.
DISCUSSION
The exercise of discretion to stay or not stay the proceedings in Australia, involves a subjective balancing of relevant factors identified as advantages and disadvantages arising from a continuation of the proceedings in Australia. It is not a comparative exercise involving advantages and disadvantages between Australia and Country B but rather a focus on Australia and whether it is a clearly inappropriate forum. It does not matter that Country B may be a more appropriate forum. The decision to stay the Australian proceedings will only be made in a clear case.
Relevant factors
In undertaking the balancing process, the following factors as I see it, favour the continuation of the Australian proceedings:
(a)Both parties are Australian citizens;
(b)Australia has jurisdiction to finally determine the property proceedings commenced by the wife;
(c)Any order made in the property proceedings in Australia can be enforced in Country B;
(d)The wife’s property proceedings were commenced in Australia before the husband’s divorce proceedings were commenced in Country B (which will only include property proceedings at a later stage);
(e)There may be some juridical advantages for the wife in the continuation of the Australian proceedings, for example:
(i)If the wife applies for a litigation funding order, (and it is submitted by the wife that such an application is likely), such an order may only be available in Australia (although the Family Courts in Country B do have power to order interim property settlement and spouse maintenance);
(ii)If the wife needs to join third parties to the litigation, that can be done in this Court but in Country B the wife would have to commence proceedings in another court in Country B other than the Family Courts although “the result of those satellite civil proceedings can then be brought into account in determination of the family law proceedings”;
(iii)Enforcing an order in Australia for the transfer of real property in Australia made by a Country B court may involve the recommencement of proceedings in Australia seeking declarations under s 78 of the Act,[10] and that may involve some delay and additional costs;
(iv)In the event the wife amends her application to seek an order under s 106B of the Act, “there is no equivalent for [s]106B [in Country B]… there is something like 106B, but it only attaches … to a specific asset, if it be shown that the intention of the transaction was to alienate that specific asset, rather than to defeat a claim”;
(f)The husband’s divorce proceedings are at an early stage in Country B; and
(g)The determination of the first stage of the divorce proceedings in Country B may take more than 12 months, if they are contested, and to finalise the proceedings may take another year or up to three years (there is no evidence as to how long the proceedings would take to finalise in Australia).
[10] Obannon & Scarffe (2021) FLC 94–009 (“Obannon & Scarffe”) at 80,306, [116].
The following factors do not favour the continuation of the Australian proceedings:
(a)The parties’ connection to Australia is limited:
(i)They have not lived in Australia since 2007;
(ii)They have lived in Country B since 2009;
(iii)Two of their three children were born in Country B and continue to be educated there. The third child is now being educated in the United States;
(iv)Both parties live and work in Country B;
(v)Both parties are permanent residents of Country B;
(vi)The family’s travel to Australia is limited to visiting extended family;
(b)Irrespective of where the property proceedings are determined, the valuation of entities will involve experts from foreign jurisdictions;
(c)The only lay witnesses in the proceedings are likely to be the parties, although there is a chance that the wife’s father (who lives in Australia) may be a witness on some peripheral issue;
(d)The wife first commenced proceedings in Country B (in late 2022 for personal protection orders and in early 2023 for child maintenance);
(e)It is common ground that the proceedings in relation to child maintenance and parenting will be determined in Country B;
(f)The parties have each retained lawyers in Australia and Country B and are currently incurring substantial legal costs in both jurisdictions;
(g)The parties’ entire matrimonial dispute will not be completely resolved in Australia given that at least the child maintenance and parenting proceedings will proceed in Country B;
(h)The parties’ entire matrimonial dispute can be more effectively resolved by the courts in Country B;
(i)It is common ground that any order made by the Family Courts in Country B for the payment of money from the husband to the wife is enforceable as a registrable money order in Australia pursuant to s 5 of the Foreign Judgments Act 1991 (Cth) or alternatively enforceable under the common law procedure for the enforcement of judgements;[11]
(j)If an order is made for the transfer of the Western Australian property to the wife (or other property which the wife may seek to be transferred once she has had the opportunity to properly investigate the husband’s financial interests), and the husband defaults, the wife could rely upon s 78 of the Act, should it become necessary to enforce such an order;[12]
(k)The husband proffers an undertaking to this Court, to cooperate in all respects with the enforcement in Australia of an order made in Country B for the transfer to the wife of the Western Australian property;
(l)There is likely to be some overlapping of issues between the child maintenance proceedings (and spouse maintenance proceedings if commenced) in Country B and the exercise of jurisdiction under s 79 of the Act e.g., determining the husband’s income, earning capacity and financial resources, and accordingly there is the potential for inconsistent findings of facts;
(m)When exercising the s 79 power, the Court must consider matters set out in s 75(2) of the Act so far as relevant, which would include any child maintenance or spouse maintenance payable;
(n)There is likely to be some repetition for the parties in meeting their disclosure obligations in both jurisdictions in so far as they involve competing claims where the husband’s financial circumstances are relevant;
(o)The parties have already been involved in extensive litigation in Country B and that will continue in relation to child maintenance and parenting at the very least;
(p)A continuation of proceedings in both Australia and Country B would no doubt involve at least some additional legal costs;
(q)The husband proffers an undertaking to this Court that he will undertake to the Family Courts in Country B to pay up to $100,000 to the wife for litigation funding on certain conditions; and
(r)The husband proffers an undertaking by way of asset preservation to this Court until final determination of the husband’s divorce proceedings in Country B.
[11] Bao v Qu; Tian (No 2) (2020) 102 NSWLR 435 at [23]–[29]; Martin Davies, Nygh’s Conflict of Laws in Australia (Lexis Nexis Butterworths Australia, 10th edition, 2020) at [40.2]–[40.3]).
[12] Obannon v Scarffe (fn 11) at 80,306, [116].
CONCLUSION
While no factor on its own is determinative, I conclude that the continuation of the Australian proceedings would be seriously and unfairly burdensome on the husband and productive of serious and unjustified trouble.
In coming to this conclusion, I have placed significant weight on the limited connection the parties have to Australia; that a continuation of the Australian proceedings will not resolve the entire matrimonial dispute between the parties; that there would likely be at least some overlap of financial issues in Australia and Country B and potential thereby for inconsistent findings of fact; and 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 no doubt involve at least some additional legal costs. I have also taken into account the various undertakings proffered by the husband as a condition of the stay.
The wife submits that the undertakings, if accepted, could only support a temporary stay whereas the husband submits that it is not uncommon for a permanent stay to be granted, conditional upon undertakings. Neither party developed their submissions on this point and the only authority referred to was of little assistance. I nevertheless note that in Voth, a permanent stay was granted on condition of an undertaking being provided. I propose to accept the undertakings proffered by the husband although I have changed the format of the asset preservation undertakings to reflect more accurately the husband’s intention as stated in his supplementary submissions filed on 1 December 2023 at [15].
I conclude that Australia is a clearly inappropriate forum for the continuation of the property proceedings and will order a permanent stay of the wife’s application (as amended) filed 24 July 2023.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 5 December 2023
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