Taffa & Taffa (Summary Dismissal)

[2012] FamCA 181

FAMILY COURT OF AUSTRALIA

TAFFA & TAFFA (SUMMARY DISMISSAL) [2012] FamCA 181

FAMILY LAW – SUMMARY DISMISSAL – Whether wife’s case is doomed to fail – whether wife’s case is not inherently incredible – the evidence on which the application is to be determined
FAMILY LAW – STAY APPLICATION – Whether Australia is a clearly inappropriate forum – Where parties live in Australia on means-tested pensions – Where all property in matter is located in Lebanon – Where the existence of property is disputed – Where parties have a judgment from Lebanese Courts – Whether Lebanese Courts have jurisdiction to decide such matters – Whether an Australian decision would be enforceable in Lebanon
FAMILY LAW – RES JUDICATA – Miller and Caddy test - Whether the wife is estopped from bringing an action here by her previous applications in Lebanon – whether the foreign declaratory judgment meets the requirements of a foreign judgment
FAMILY LAW – APPLICATION TO BRING FINANCIAL APPLICATION OUT OF TIME – section 44(4) - Where one party was in doubt as to the date of separation – where there is no evidence of parties’ financial position at the time the period in which an application could be brought ran out – where there is no evidence of assets or resources to meet any financial order

Family Law Act (1975) (Cth)
Family Law Rules (2004) (Cth)
Foreign Judgments Act 1991 (Cth)

Baumgartner & Baumgartner (1987) HCA 59
Beck & Beck (2004) FLC ¶93-181
Cain & Cain (1987) FLC ¶91-808
Calvery & Green (1984) HCA 81
Carl Zeizz Stiftung v Rayner & Keelr Ltr (No 2) [1967] AC 853
Gitane & Velacruz [2007] Fam CA 183
Hall & Hall (1979) FLC ¶90-679
Hedley & Hedley (2009) FLC ¶93-413
Henry & Henry (1996) 20 Fam LR 171
Kemeny & Kemeny (1998) FLC ¶92-806
Lindon & Commonwealth (No. 2) (1996) 136 ALR 251
MarginstonvBlackburn Borough Council [1939] 2 KB 426
Miller and Caddy 10 Fam LR 858
Pagliotti & Hartner (2009) FLC ¶93-393
Savage and Hodgson (1982) FLC ¶91-281
Tamaniego & Tamaniego [2010] FamCAFC 254
Voth v Manildra Flour Mills (1990) 171 CLR 538

APPLICANT: Mr Taffa

RESPONDENT: Mrs Taffa

FILE NUMBER: SYF 5067 of 2000

DATE DELIVERED: 13 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 26 July 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Finn

Legal Aid NSW

SOLICITOR FOR THE RESPONDENT:

Mr Barber

Barber Lawyers

Orders

1. The wife’s application for property orders and lump sum spousal maintenance is stayed.

2. In the alternate to order (1) hereof the wife’s application to commence property and spouse maintenance proceedings out of time is dismissed.

3. I note that the matter has now concluded in the Court and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 5067 of 2000

Mr Taffa

Applicant

And

Mrs Taffa

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by the husband, Mr Taffa, filed on 20 June 2011. That application seeks that the wife’s Application for Final Orders filed on 26 May 2000 be either summarily dismissed or permanently stayed. The stay is sought on the ground that Australia is a wholly inappropriate forum to determine any property disputes between the parties. A stay is also sought pursuant to the doctrine of res judicata and on the additional basis that the application cannot possibly succeed.

2. The wife, Mrs Taffa, filed a Response to the Application in a Case of the husband on 8 July 2011. By that document she seeks leave to proceed with her application for property orders and/or spouse maintenance notwithstanding that it was filed out of time (s 44(3) of the Family Law Act 1975(Cth) (“the Act”)). She opposes the husband’s application filed on 20 June 2011. In turn, the wife’s application for leave to proceed out of time with her property application is opposed by the husband.

Background Facts

1. On 21 January 2009, I delivered a judgment determining disputed proceedings between the parties relating to the dissolution of their marriage. The Order made by the Court on that occasion was that “The wife’s application for divorce filed 23 March 2007 is dismissed.” In the judgment accompanying that Order, I set out some background facts which are common to the applications currently being considered. To the extent that it is necessary to have access to the reasons published with the orders of 21 January 2009 I here incorporate those reasons in this judgment. Those facts are as follows.

2. The parties were married in March 1973 in Kuwait. The wife asserts the parties’ final separation took place on 3 March 1999. The husband asserts an earlier date. An Islamic divorce took place on 15 October 1998. The wife agrees there was a separation in September 1998.

3. There are three children of the marriage, all of whom are now adults.

4. The parties commenced to reside in Australia in about 1985.

5. The parties are citizens of both Australia and Lebanon.

6. On 15 October 1998 the parties went through a form of religious divorce at the Z Islamic Centre. There appeared to be common understanding by the parties that, notwithstanding that ceremony, a court process was necessary to have their marriage legally dissolved. As stated earlier the parties had only separated the month before the religious divorce took place. It is clear neither party could have applied for a divorce at that time under Australian law.

7. On 4 November 1998 the parties each attended the Lebanese Embassy in Sydney and executed a power of attorney to authorise their respective lawyers in Lebanon to proceed with the divorce application which had been filed in Lebanon.

8. On 24 November 1998 the parties were divorced in Lebanon by the Jaafarite Canonical Court. They were each separately represented by a lawyer in that proceeding.  The translated version of the Order of the Court shows that not only was the divorce granted but there was also an order made in respect of the parties’ property.

9. The ability of the Jaafarite Canonical Court to make an all encompassing property order is a matter of dispute between the parties in the applications now under consideration. As will be seen later in this judgment, the wife’s case is that the Jaafarite Court’s powers are limited by legislation so that it can only consider and make orders in relation to “dowry and trousseau” and “alimony.”

10. Relying on the divorce granted in the Lebanese Court, the husband remarried in March 1999.

11. Between December 1998 and mid-1999 the wife alleges the parties were reconciled.

12. In about 2000 the wife commenced appeal proceedings in the Lebanese Courts. Three judgments from the Lebanese Courts are now in evidence in this case. The judgments are from various levels of Appeal Courts in Lebanon. The dates of the judgments are 13 July 2000, 10 July 2001, and 29 December 2004. The wife was unsuccessful in each appeal. The wife’s ambition in each appeal has been to have the Lebanese Court set aside a property order made at the time the divorce was granted. The wife argues that the order, in the following terms, is not the equivalent of a property or spouse maintenance order which might be made in Australia. The order “Declared that neither party has any financial rights or liabilities towards the other”.

13. The wife has appealed the original orders (in relation to property) further and she asserts that there is still an outstanding appeal awaiting determination in Lebanon.

14. In the earlier proceedings in this Court before me, it became important for the purpose of s 104(3) of the Act for the Court to determine whether the wife was the applicant in the Lebanese Court for the dissolution of the parties’ marriage. In those proceedings, each of the parties called an expert in Islamic Law as applied in the Lebanese Canonical Courts. There was divergence of opinion as to whether the wife was or could in reality be the applicant or “true applicant” in divorce proceedings in a Lebanese Canonical Court.

15. Ultimately, I determined the question in my judgment delivered on 21 January 2009. Paragraphs 38 and 39 of that judgment are as follows:

    38.It seems to me that the document which is relied upon by the husband as the evidence of the dissolution of the marriage is the document to which this Court should pay the greatest attention. That is, the decision of the Jaafarite Canonical Courts dated 24 November 1998. That document makes it clear that the divorce was applied for by the wife. The evidence of the experts confirm that a Khali divorce is applied for by the wife.

    39.I find on the balance of probabilities that the husband was the Respondent for all practical purposes and for all legal purposes in the proceeding which gave rise to the judgment of 24 November 1998 and to the confirmation of the dissolution of the parties’ marriage. I find that the religious event which took place at the [Z] Islamic Centre on 15 October 1998 could not dissolve the parties’ marriage. I find that the parties clearly understood that the event which occurred at the [Z] Islamic Centre on 15 October 1998 did not lawfully divorce the parties. It was in recognition of that fact that the parties had their divorce lawfully proclaimed by the Jaafarite Canonical Court on 24 November 1998.

16. At paragraph 36 of that judgment I said:

    36. The wife’s appeals have been against that part of the order of 24 November 1998 which “declared that neither party has any financial rights or liabilities towards the other.”

17. I concluded that judgment with the following paragraphs:

    42.In addressing the question of “manifestly contrary to public policy”, the wife settled upon that part of the decree of 24 November 1998 which is as follows: “declared that neither party has any financial rights or liabilities towards the other”. It was submitted by the wife that such a finding has the effect of prohibiting the wife from pursuing property proceedings against the Respondent. As such, it would be contrary to public policy.

    43.It is common ground that the parties have no property of consequence in Australia. Any order for division of property pursuant to s 79 of the Act would be an order in personam which would then have to be enforced in Lebanon if that was possible.

    44.The parties in this case have sought to bypass the law applicable to the dissolution of marriage in this country and chose the forum of the Lebanese Jaafarite Canonical Courts to legally sanction their divorce. The parties had lived in Australia for many years and, on the evidence before this Court, could not have applied for and/or obtained a divorce on 15 October 1998 which is the date the parties obtained a religious divorce from the [Z] Islamic Centre in New South Wales. The parties thereby deliberately bypassed the Australian legal system.

    45.The wife continues to pursue legal action in Lebanon against the husband in relation to property matters. On the face of it, it seems sensibly that as the only property available for distribution between the parties is situated in Lebanon that is the place where the parties ought to litigate about their property.

    46.Even assuming that the wife was successful in having this Court refuse to recognise the divorce of the parties from Lebanon there would, no doubt, be a contest about forum. The husband has made it clear that his case would be that any legal proceedings in relation to property disputes between the parties ought to be conducted in Lebanon. Without deciding that matter it certainly appears that there is an argument of real substance to support the view of the husband.

    47.Having regard to all the matters set out herein I find that this Court recognises the divorce of the parties through the judgment or decree made in the Jaafarite Canonical Court on 24 November 1998.

    48.As a consequence of that, the wife’s application for dissolution of marriage is to be dismissed as the marriage she wishes to dissolve has already been dissolved.

Applications and Evidence currently before the Court

1. I turn now to the applications and evidence currently before the Court.

2. The husband moves on his Amended Application in a Case filed 20 June 2011. He relies on his Affidavit filed 25 February 2011 and the following documents tendered in the case by him:

   a.Exhibit “H1”: Judgment of the Jaafarite Religious Courts dated 13 July 2000, Judgment of Supreme Jaafarite Religious Courts dated 10 July 2001, Judgment of Jaafarite Religious Court dated 29 December 2004;

   b.Exhibit “H2”: Judgment of the Family Court of Australia dated 21 January 2009;

   c.Exhibit “H3”: Judgment of the Full Court of the Family Court of Australia dated 13 September 2010; and

   d.Exhibit “H4”: Paragraphs 21 and 50 of the wife’s Affidavit filed 15 March 2011.

3. The wife moves on her Response to an Amended Application filed on 8 July 2011. She relies on two affidavits filed by her on 8 July 2011, an Affidavit filed by her on 16 May 2011 and an Affidavit filed by her on 19 July 2011. She also reads her Application for Final Orders filed on 26 May 2000.

4. It is clear from the wife’s case, now under consideration, that she asserts she would not be prevented from proceeding in a Lebanon Civil Court seeking property adjustment following the parties’ divorce. She argues that the words in the divorce order made in the Jaafarite Canonical Court on 24 November 1998 that “declared that neither party has any financial rights or liabilities towards the other” are restricted in application to “dowry and trousseau” and “alimony.” She argues that if she was forced to pursue her rights against the husband in Lebanon, her present financial circumstances would make such an exercise prohibitive.

5. The husband’s primary application is for summary dismissal of the wife’s case. In such a case the wife’s evidence must be considered at its highest. In the Case of Beck & Beck (2004) FLC ¶93-181, in which the husband applied for summary dismissal of the wife’s application, the Full Court (Ellis, Finn and Chisholm JJ) held that:

   29.      But whatever the state of the wife’s material, it is clear from the authorities to which we earlier referred (being Webster v Lampard, Lindon v The Commonwealth and, although perhaps indirectly, Bigg v Suzi), that it was on the basis of the wife’s material alone that his Honour should have determined the husband’s application for summary dismissal of the wife’s s 79A application. (emphasis added)

The Evidence

1. I now turn to consider that evidence.

2. The parties were married in March 1973 in Kuwait. The wife claims final separation on 3 March 1999 (see Application for Final Orders filed on 26 May 2000). The husband claims separation occurred earlier, i.e. prior to the 15 October 1998 religious divorce effected by the parties.

3. The wife was born in 1953 (now aged 58). The husband was born in 1946 (now aged 65). Both parties currently reside in Australia.

4. The wife is currently unemployed and receives a Centrelink disability support pension which is her only income. She receives $592.30 per fortnight. Prior to receipt of that sum the wife has deducted from the payment $20 which is paid towards her gas account and $30 paid towards her electricity account. This is repayment of an accumulated debt. She also has $77 per fortnight deducted to repay loans from Centrelink and she pays $10 per fortnight against a traffic fine.

5. The wife lives in Department of Housing accommodation. Her rent is $205 per fortnight. She has a credit card debt of $7,000 and she has other debts including a debt to the Australian Tax Office. The wife has no savings of any moment. The wife has had her application for Legal Aid in relation to property proceedings disallowed.

6. The husband’s evidence is that his only income is derived from a Centrelink Disability Support pension. He receives $350.14 per fortnight after rent and a debt to Centrelink is regularly deducted. The full pension amount is $496.30 per fortnight.

7. The husband’s wife B receives an aged pension from Centrelink in the sum of $350.14 per fortnight. That pension has rent and a debt to Centrelink deducted. Her maximum pension is $496.30 per fortnight. She also receives $110 per fortnight as a carer’s payment. The husband and his wife live in Department of Housing accommodation. They each pay $130.06 as rent. In November 2010 the husband and his wife each borrowed $774 from Centrelink which they repay at the rate of $59.60 per fortnight. The money was used to fund an air ticket for the husband to visit Lebanon and see his sister who was unwell. The husband and his wife have a small amount of savings. The husband asserts he has no other assets. The husband and his wife closed their bank accounts in Lebanon in about 2006 or 2007 after they returned to Australia. The husband attests that he has no assets or money in Lebanon.

8. In 1997 the husband received a workers compensation payment of between $45,000 AUD and $60,000 AUD.  He took that money to Lebanon with him in March 1998. The husband still has an ability to claim damages for future eyesight loss. The husband received a “third party compensation” of $40,000. He took that money to Lebanon in December 1990.

9. Annexure “B” to the wife’s Affidavit filed on 16 May 2011 is a translated copy of a title deed. It establishes that at the date of the search (undated) Lot 190 being 6000 square metres of “uncultivated vacate land suitable for planting seeds” is registered in the name of Mr Taffa. It appears he may have acquired the property on 20 July 1977. I note the “title deed” is difficult to understand. The wife’s case is that the title deed evidences ownership by the husband of the subject land. That assertion is questionable given the precise wording of the document. Given that the Court must consider the wife’s case at its highest I will accept the wife’s assertion for the purpose of this hearing.

10. Also part of annexure “B” to the wife’s Affidavit filed on 16 May 2011 is a second “title deed” for Lot 244. This is 1000 square metres of “uncultivated vacant land suitable for planting seeds.” This is said to be registered in the husband’s name as his property.

11. Annexure “C” to the Affidavit of the wife filed on 16 May 2011 is a copy of a statement written by Youssef Kreidi of the Jaafarite Court (and signed also by the president of the Jaafarite court Judge Bashir Mortada). The Court document, as I understand it, is a response by a Judge of the Beirut Jaafarite Religious Court to a request by the wife to have the Court clarify whether the divorce decree of 24 November 1998 also made orders in relation to the parties’ “properties moveable and immovable or only discusses the dowry”. The document does not appear to be a judgment of the Court. The request was made on 10 March 2011 and the document written the same day.

12. The translation of the determination includes the following “the Court or Judge are not authorised to go into any financial details other than the specified Mahr and any Shariaa alimony due and owed to the wife as a result of the marriage. The other financial matters were not stipulated or agreed upon by both parties of the divorce in texts of the two powers of attorney.”

13. Annexure “C” also includes a second statement of advice from the wife’s lawyer Mr Beracat. His opinion states the religious courts are restricted by legislation (article 17 of the Religious Courts Act, which is not reproduced) in jurisdiction to deal with matrimonial property. He states “the abovementioned article does not refer to the parties’ properties movable or immovable. Those are determined by non religious courts (civil courts).”

14. I pause here to consider the weight which the Court might place on the evidence in annexure “C”. The evidence is not in admissible form and it is also hearsay, however, if the proceedings are interlocutory in nature then the Court could have regard to the evidence under s 75 of the Evidence Act. No submissions were made by either party addressing this point.

1. Annexure “D” to the wife’s Affidavit filed on 16 May 2011 is evidence of the husband’s ownership in Lebanon (as from 28 January 1999) of a Mercedes motor vehicle 1977 model. The registration for the vehicle was last affected in July 2008.

2. Annexure “E” to the wife’s Affidavit filed on 16 May 2011 is a translation of a “bond signatory” between the husband and his nephew D Taffa. This was referred to at paragraph 50 of the wife’s Affidavit sworn 14 March 2011.

3. I pause here to recount that the wife has not read her Affidavit of 14 March 2011 in this case. The husband commented on that matter in the hearing and effectively invited the wife to read that affidavit. She did not. The husband then tendered paragraphs 21 and 50 of that affidavit. For the purpose of considering the application for summary dismissal I will have regard to paragraphs 21 and 50 of the wife’s Affidavit sworn 14 March 2011 and treat same as being evidence in the wife’s case. Those paragraphs are as follows:

   21. My working within the home by providing everything required from a wife and a mother while we lived in Kuwait, opened the opportunity for the respondent to work freely and to secure two pieces of land in his village, [X], in South Lebanon. On 20 July 1977, [the husband] bought a 6000 square metre block of land known as [E]  registered as Lot number 190 and the valuation put on this land  is currently around $US 120,000.00. On 31 May 1979, [the husband] bought a 1000 square metre block of land known as [G] registered as Lot number 244 and the valuation put on this land (without the house that he built back in 1999) is around $US 30,000.00 (annexed hereto and marked “G” are translated copies of the two mentioned lands).

   I note there are no translations attached to that affidavit. However, they are attached to a later affidavit of the wife. Again such evidence would be admissible only pursuant to s 75 of the Evidence Act.

4. Paragraph 50 of the wife’s Affidavit sworn 14 March 2011 states:

   50. In reply to paragraph 62-67 of the Respondent affidavit , I say that the statement made by [the husband] about the condition of the house, at the time, on lot 244 after the war between Israel and Hasb Allah in 2006 is a fabrication statement no truth of it. Although the windows glass was smashed during the war due to the air pressure of exploration (sic), the house itself was not burned nor damaged as he claimed in that he was forced to sign a document authorising his nephew to try to sell “what was left of the home.” [The husband] sold the House to his nephew “[J Taffa]” due to his fear at that time from my proceeding in Australia and in order to frustrate my claim against him as he wasn’t aware what would be the outcome of my proceedings. In the main time to frustrate [B’s] claim in the future, in this way legally he would be in a better position to save the sale’s money in his bank account in Lebanon. It should be noted that [the husband] had recently begun legal proceedings in the Lebanese Courts against his nephew [J Taffa] during his last visit to Lebanon. It is reasonable to predict that he will succeed in his action as he has a signed agreement between him and his nephew [D Taffa] ([J Taffa’s] brother), when he authorised him to sell the property documenting a $70,000.00 owing to [the husband] from [D Taffa] (annexed hereto and marked “O” is untranslated copy of the said document filed in Lebanon court) and a caveat has been placed by [the husband] when he visited Lebanon at the end of last year 2010.

5. I note it is asserted by the wife in paragraph 50 of her Affidavit filed on 14 March 2011 that Lot 244 is now known as Lot 443 and that the annexed translation copy of the registration of the property shows details of sale (presumably as stated by the wife to J Taffa for $70,000 USD). However, no translated document is in fact annexed. I also note that the evidence thus given by the wife in paragraph 50 of her said affidavit in relation to Lot 244 appears to contradict what she had said in her Affidavit of 16 May 2011. Again the paragraph from the wife’s affidavit above quoted does not disclose “source of knowledge” for many statements and may therefore be hearsay.

6. Annexure “F” to the Affidavit of the wife of 16 May 2011 does in fact attach the English translation of the land title certificate for the property Lot 443 previously known as Lot 244. I note that document shows an entry on 24 February 2010 in relation to a “law case.” This refers to an application by the husband against D and J Taffa. The application sought “annulment of a contract of sale for failure of payment.”

7. Annexure “E” to the Affidavit of the wife is a translation of a “bond signatory” between the husband and his nephew D Taffa. This appears to be a promissory note which is undated but which required on a payment to the husband of $70,000 USD in cash to be made on 23 December 2006.

8. In the Affidavit filed by the wife on 19 July 2011 the wife annexes English translations of article 16, 17 and 18 of the “Lebanese Act” relating to the “jurisdiction of the Religious Courts.” She also annexes the English translation of articles 1009-1922 of the “Lebanese Act relating to the enforcement of judgment (sic) made in foreign countries.”

9. The first of those documents appears, on reading, to support the wife’s contention that the Religious Courts in Lebanon are not authorised to consider any cases other than those mentioned in article 17. There is no description contained in article 17 which suggests the right to adjust property as between former spouses. The wife points to sub paragraphs 4 and 5 of article 17 which are in the following terms:

   4. Dowry and trousseau.

   5. Alimony, spending the time with the children and included boys and girls to their parents.

10. It is submitted by the wife that these are the only financial matters which are within the power of the religious courts to determine. I note the Oxford Dictionary defines the meaning of alimony to be “money payable to a spouse after separation or divorce. This term has been replaced by maintenance”

11. The wife further points to the following provision in article 18:

    The religious courts are not authorises (sic) to consider any cases or applications other than those mentioned in the law. The religious courts are also prohibited from considering cases and applications which are included in this section involving non-Lebanese, of the relevant sect, living in countries where personal status matters are governed by civil law, unless one of the parties is Lebanese, in that case applications as well as endowment matters remain subject to the jurisdiction of the religious courts.

12. The annexed translation of “enforcement of foreign judgments and bonds” prima facie supports the wife’s assertion that any order made by this Court affecting property in Lebanon will be enforced by the civil courts of Lebanon. Article 1013 sets out the process for obtaining enforcement of a foreign order or judgment in Lebanon. The process requires the granting of an execution order by the President of the Civil Court of Appeal. The President has discretion to accept or reject the application. A determination by the President to accept the application and give force to the foreign judgment carries with it a right of appeal by the aggrieved party. If there is a denial that decision may also be appealed. 

13. Article 1016 of the “enforcement of foreign judgments and bonds” legislation in Lebanon, as contained in annexure “B” to the affidavit of the wife sworn 18 July 2011 provides circumstances in which the court must decline to execute foreign judgments:

    Article 1016 – Lebanese Courts must decline the execution in the following cases:

    a.If a final judgment had been issued by the Lebanese legal system, between the same parties in relation to the same conflict which led to the issuance of foreign judgment

    b.If a law suite between the same opponents in relation to the same conflict, filed earlier than the law suite resulted in the foreign judgment is still pending for the Lebanese Courts.

14. I will address this further in my discussion of res judicata.

The Law Relating to Summary Dismissal

1. I turn now to the law relating to summary dismissal.

2. The Family Court has power, under the Family Law Rules, to dismiss any application or part of a case before it.

   [r 10.14] What the court may order under this Part

   10.14 On an application under this Part, the court may:

   (a)  dismiss any part of the case;

   (b)  decide an issue;

   (c)  make a final order on any issue;

   (d)  order a hearing about an issue or fact; or

   (e)  with the consent of the parties, order arbitration about the case or part of the case.

   Note:  This list does not limit the powers of the court. The court may make orders on an application, or on its own initiative (see rule 1.10).

3. In exercising this power, there is a range of considerations which the court must take into account. The Family Court has set out a précis of those considerations as follows.

4. The judgment in Gitane & Velacruz (2007) FLC ¶93-309 sets out a concise summary of the main principles which must be satisfied when determining whether to summarily dismiss a matter. These principles were drawn directly from Kirby J’s judgment in Lindon v Commonwealth No 2, (1996) 136 ALR 251, and the case of Beck and Beck (2004) FLC ¶93-181 (referred to in submission in this matter), similarly draws out the same principles (albeit through the Family Court cases of Bigg & Suzi (1998) FLC ¶92-799 and Pelerman & Pelerman (2000) FLC ¶93-037: see Beck at [12]). The Court in Gitane (Bryant CJ, Warnick and Boland JJ) stated:

   25.      …

   (1)      that relief for summary dismissal is rarely and sparingly provided;

   (2)      that it is only available if it is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action or that it is a frivolous or vexatious one;

   (3)      that it is not enough to attain summary dismissal to show that it is a weak case;

   (4)      that there is a defect in the pleading and it appears that the party still has a reasonable cause of action, the Court will allow the party to reframe its pleading; and

   (5)      that one only summarily dismisses if it is clear that the case is doomed to fail.

5. The judgment in Beck sets out the standard for the application of the principles:

   19.      … we consider it useful at this stage to set out the following passages from the joint judgment of Mason CJ, Dean and Dawson JJ in Webster v Lampard (to which Holden J referred in paragraph 13 of his reasons):

   It is important to note at the outset that the issue before the learned Master on the application for summary judgment was not whether Mr and Mrs Webster would probably succeed in their action against Sergeant Lampard. It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. [emphasis added]

6. In Beck, the Applicant wife applied to vary a property order on the basis that the husband had misrepresented the net assets by some $900,000, so that the wife had received, overall, less than 25% of the net value of the assets (not as represented by the husband). The application was dismissed, and the wife appealed on the basis that the trial judge had failed to properly apply the relevant test set out in the principles.

7. The Court allowed the appeal, stating that although the trial Judge correctly stated the relevant principles, the “use of the husband’s material constituted a significant error of principle”. The Court did indicate throughout, however, that they were of the opinion the wife’s case would not succeed, but stated ultimately “we would emphasise that in our view his Honour was led into the error of relying on the husband’s material by the written and oral submissions made on behalf of both parties”.

8. The Court held that:

   29.      …[W]hatever the state of the wife’s material, it is clear from the authorities to which we earlier referred (being Webster v Lampard, Lindon v The Commonwealth and, although perhaps indirectly, Bigg v Suzi), that it was on the basis of the wife’s material alone that his Honour should have determined the husband’s application for summary dismissal of the wife’s s 79A application.

The submissions of the husband

1. The husband submits the wife’s application should be summarily dismissed as her evidence is insufficient to satisfy the Court she has any case to be determined by the Court.

2. The husband directed the Court to the case of Beck, in particular the established principles relating to summary dismissal at [17]:

   (a)      The power for summary dismissal is a discretionary one.

   (b)      Relief “is rarely and sparingly provided”.

   (c)The parties seeking dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacked a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.

   (d)A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.

   (e)“If there is a serious legal question to be determined, it should ordinarily be determined at a trial”.

   (f)“if notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action with it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings.

3. The husband submits that the matter at issue here is the existence of property in Lebanon. The wife is seeking a property settlement which is dependent on not only her proving that the husband is the beneficial owner of a property and a car in Lebanon, but also on the Lebanese Courts deciding in favour of the husband in proceedings to reclaim property lost to the husband’s nephew. This would mean the Court accept as fact issues which have yet to be determined by a Court.

4. The husband submits that if the version of fact put forward by the wife is not inherently credible, then the Court should dismiss her application. He relies on the wife’s evidence as proof that there is not a credible case.

5. The husband submits that the wife is a vexatious litigant. She has filed several appeals to the original Lebanese Court decision, of which one still remains to be determined (purportedly), and there have been several applications and appeals before Australian courts, including an application for special leave to appeal to the High Court. These applications and appeals have been conducted by the wife over a period of more than 10 years, and have resulted in several judgments against her in both family and criminal courts, as well as costs orders with which she has not complied.

6. The husband submits that the wife’s case is doomed to fail due to the fact that she is applying for substantially more in financial orders than the combined properties, alleged to be owned by the husband, are worth. The husband estimates that the wife is seeking approximately 167% of that alleged property as a property or lump sum spouse maintenance order.

7. The husband took the Court to three alleged properties which the wife’s application addresses:

   ·a second hand Mercedes for which the husband paid AUD$3000 several years ago (which the husband claims has been destroyed);

   ·the house which the husband built in South Lebanon, valued by the wife at AUD$70,000, which was allegedly bombed in 2006 and which has, by the husband’s account, since been unlawfully appropriated and sold by a nephew given the authority to sell the property on behalf of the husband;

   ·A second property in Lebanon owned by the husband is alleged by the wife to be valued at AUD$120,000.

8. The total estimated value of the alleged property is AUD$193,000. The husband submits the orders which the wife seeks include a financial payment to her of AUD$200,000, which in itself is a claim greater in quantum than the value of the combined assets.

9. The wife also seeks that the husband raise the money to meet the order by mortgaging the house in southern Lebanon valued at AUD$70,000, even though she concedes that the house has been sold by the husband’s nephew. The husband submits that even if an order was made in relation to this aspect of the application, it would be necessary for the husband to obtain a judgment in his favour, in relation to the house, from the Lebanese Courts, and he would further need to locate the nephew in order to enforce the judgment and reclaim the AUD$70,000.

10. The husband submits that on the basis of the lack of connection of the case with this jurisdiction, the impossibility of the court dividing more than 100% of the property, and the Court ordering the mortgaging of a property not in the husband’s possession, the application is doomed to fail and hence the application should be summarily dismissed.

The submissions of the wife

1. The wife submits that the husband has been dishonest in his representation of the property he has owned in the past and may still own, as well the details of when he acquired or disposed of each piece of property.

2. The husband’s evidence is that he acquired certain pieces of land in Lebanon from his mother after the separation of the parties. The wife submits that this evidence is false, and in her evidence she relies upon translated land registers (annexure “B” of the wife’s Affidavit filed 16 March 2011), which, she claims, show that the husband acquired the property in question in 1977 and not in 2000. The wife submits that in this case the evidence speaks for itself.

3. The wife directed the Court’s attention to the husband’s evidence in cross-examination, in which he said that he would be willing to sign over to the wife all of his property in Lebanon, which he claims is no property at all. The wife submits that if this is the case, then it would be a simple matter for him to consent to orders in this Court which assign to the wife all his property/rights of action in Lebanon and let her pursue same at her own expense. The wife’s evidence is that the husband has refused to do so, which, she submits, is an indication that he does indeed have undisclosed property in Lebanon.

4. The wife submits that the husband took, over the course of the marriage, up to $200,000 out of Australia into Lebanon, including compensation payments, retirement payments and other lump sum amounts. She submits that these funds were used to purchase property and were invested in foreign investment accounts and would now have an accumulated worth of some $300,000-$400,000. The wife has put forward no evidence to establish that such a fund presently exists in Lebanon. She claimed there are subpoenas which were issued by her relating to this issue which have not yet been complied with. I note there has been no application by the wife to re-open the case notwithstanding the lengthy period between the conclusion of the trial and the delivery of these reasons.

5. The wife further submits that the husband has not disclosed to the Court how and when he disposed of the assets for which she has produced title information. She submits that the husband’s claim that his house in southern Lebanon was damaged during bombing in 2006 has not been verified and there is only the husband’s word that the property is destroyed, without any evidence to support it.

6. The wife submits that she has produced sufficient evidence to show an inconsistency in the financial disclosures of the husband and that any opportunities for the wife to have the matter proceed will give her the ability to prove the husband’s evidence has been untruthful.

Discussion

1. The question for consideration is whether the wife’s case is not inherently credible, and consequently whether she cannot succeed in the case she seeks to prosecute.

2. The onus is on the husband to establish the wife cannot succeed. He must do so confined to the evidence adduced by the wife (in support of her case) together with any relevant admissions of the husband, at the time of the hearing of his application. The wife’s case does not need to be seen as a “strong case”, rather it needs to be a case with sufficient substance to require determination by the Court. Consequently, her case must not be seen as having “no reasonable cause of action”, or as being “frivolous or vexatious”. In order to dismiss the Application, it must be clear to the court that the wife’s case is “doomed to fail.”

1. Both parties have drawn the Court’s attention to the judgment of Ellis, Finn and Chisholm JJ in Beck & Beck (2004) FLC ¶93-181 in relation to summary dismissal. Their honours had this to say in relation to the question of summary dismissal:

   17.In his reasons for judgment (after setting out the factual background to this matter largely in the terms which we have used above), Holden J identified the principles to be applied to the application before him in the following way:

   12.This application seeks to summarily dismiss the relief sought in order 1(i) of annexure A to the application of the wife filed 15 August 2001.  That is, that there be a finding that there has been a miscarriage of justice by reason of fraud and suppression of evidence or any other circumstance.  It is well established that the following principles apply:   (see Bigg v Suzi (1998) FLC 92-799 at 84,973-84,974) and also Pelerman and Pelerman (2000) FLC 93-037 at 87,582)):

   ‘(a)The power for summary dismissal is a discretionary one.

   (b)      Relief “is rarely and sparingly provided”.

   (c)The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacked a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.

   (d)A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.

   (e)“If there is a serious legal question to be determined, it should ordinarily be determined at a trial”.

   (f)“If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings”.’

   13.In determining an application of this nature I accept that the rule to be extracted from the authority is that if a version of the facts put forward by the respondent is not inherently incredible, then in the absence of any opportunity for cross-examination it is incumbent upon the court to proceed on the basis that the respondent's version will ultimately be accepted at the trial of the action (see Webster v Lampard (1993) 177 CLR 598 at 608).

2. Beck goes on to state that the question must be determined only on the evidence of the respondent, without reference to any evidence presented by the applicant. The purpose of this test is merely to show whether there is a case to be heard, not to give a de facto judgment on the issue. Their honours stated in Beck:

   29.But whatever the state of the [respondent] wife’s material, it is clear from the authorities to which we earlier referred (being Webster v Lampard, Lindon v The Commonwealth and, although perhaps indirectly, Bigg v Suzi), that it was on the basis of the wife’s material alone that his Honour should have determined the husband’s application for summary dismissal of the wife’s s 79A application.

3. The submissions of the wife on this ground are, unfortunately, based largely on the evidence of the husband. Her case, if I may simply put it, is that the husband has been dishonest in his transactions with the wife and in his evidence to the Court. As a result, it is submitted that the wife should be allowed to have the evidence (I assume his) tested in Court.

4. There is, however, little direct evidence to support the wife’s submissions of dishonesty by the husband as alleged, or non-disclosure of his allegedly true financial position. The wife submits that the husband has hidden money in foreign accounts, but presented no documentation of the alleged accounts, stating that there were subpoenas which had not yet been complied with. The Court cannot consider evidence not produced, so I therefore do not accept the wife’s submission that there are bank accounts held by the husband in banks operating outside Australia.

5. The wife further submits that the husband still owns two pieces of property in Lebanon, and produced documentation purporting to be “title deeds” as evidence to support her submission (Annexure “B” to the wife’s affidavit filed on 16 May 2011). As I have mentioned earlier, the wife’s assertion that the documents are indeed title deeds is questionable, given the precise wording of the document. I have said earlier that I will consider her evidence at its highest, and so I will accept that the document is as she describes.

6. The wife also produced evidence in relation to the “bond signatory” between the husband and his nephew (Annexure “E” to the wife’s Affidavit filed on 16 May 2011) in relation to Lot 244.

7. She further produced evidence that Lot 244 (now known as Lot 443) is now registered to the husband’s nephew D Taffa (Annexure “F” to the wife’s affidavit filed on 16 May 2011) and there is an entry against that property of 24 February 2010 in relation to a law case, being an application by the husband for “annulment of a contract of sale for failure of payment”. Annexure “F” therefore directly contradicts the information in Annexure “B”, as they each state different registered owners of the same property.

8. It is quite clear that one of these documents is incorrect. It is impossible to accept both pieces of evidence as being correct. I am inclined to accept the documents in Annexure “F” over those in Annexure “B”. The wife does not deny that the transfer of property in question occurred, in fact, she submits that this transfer of property to D Taffa is an example of the husband’s attempt to defeat her property claim. The existence of the transfer, however, renders the information in Annexure “B” unreliable. With one of the two entries contained in Annexure “B” shown to be incorrect, the veracity of the remaining entry is called into question.

9. The wife also relies on the oral evidence given by the husband during the hearing, in which he stated that he could sign a document giving the wife the right to any property in Lebanon in his name. The wife submits that the matter could be ended by the husband signing such a document, and claims the husband’s refusal to do so indicates that he has something to hide.

10. I cannot consider the husband’s evidence in the determination of the question as to whether to dismiss the wife’s application unless it was in the nature of an admission. I do not see, however, that any refusal by the husband to sign such a document as that described by the wife (transfer to her of any real estate in his name in Lebanon), is evidence that the matter should go to hearing. The husband is not at all obligated to sign any document in relation to property, particularly during a hearing of a summary dismissal application.

11. There is a significant lack of evidence to support the wife’s submissions as to the establishing or strength of her case.

Conclusion on Summary Dismissal

1. I do not consider the wife has to establish she could achieve her actual claim for property settlement or lump sum spouse maintenance as opposed to her establishing she does have a claim capable of determination by the Court. Clearly the Court would need to be able to reach a prima facie finding that there is property to which an order may be made or that there is some other circumstance which would justify the wife being able to proceed with such a claim.

2. In this case I could not be satisfied the wife has a case which is doomed to failure. The wife’s application is for property settlement and/or lump sum spouse maintenance. She seeks no order for periodic spouse maintenance. Her case is dependant upon the court being satisfied there is property against which an order may be made or secured. It is open to a court to determine the husband does have property without being able to specify the nature or extent of the property (see Black and Kelner (1992) FLC ¶92-287 ). Her case for spouse maintenance could not be said to be doomed to failure, although the wife would have to establish a fund against which to execute her order.

3. Accordingly the husband’s application for summary dismissal is dismissed.

The husband’s application that the proceedings commenced by the wife on 26 May 2000 be stayed on the basis that Australia is the clearly inappropriate forum

1. I turn now to determine whether Australia is a clearly inappropriate forum to hear this matter.

2. In relation to this application the relevant evidence of each party will be considered by the Court. The wife’s evidence has been set out earlier. There is no additional evidence which touches on the topic under consideration.

3. The husband’s affidavit evidence is contained, firstly, in an Affidavit sworn by him on 23 February 2011. Relevantly, the following further facts arise from the husband’s evidence.

4. The husband and wife, having been married in Kuwait, had their marriage registered in Lebanon in about 1975. Following their marriage their three children were born in the years 1974 and 1977. The parties moved from residing in Lebanon to Australia in 1985. At the time of their arrival in Australia the parties had AUD$30,000 in savings. They used that money to purchase cars and furniture. They have lived in rented accommodation since arriving in Australia. The husband and wife did not at any stage during their marriage own real estate in Australia.

5. The husband asserts a final separation in early 1996, although he says there were earlier separations between the parties. The husband recalls that in the year of separation he turned 50. He denies any period of reconciliation after 1996.

6. In January 1999 the husband left Australia for the purpose of residing permanently in southern Lebanon. In March of that year he married his present wife B in Lebanon.

7. In July 2006 war broke out between Lebanon and Israel. The area in which the husband lived came under attack and the house owned by the husband was allegedly hit. The husband asserts that he lost most of his possessions in that incident. He was evacuated from Lebanon by the Australian Government on 2 July 2006 and thereafter resided in Sydney.

8. The husband became an Australian citizen in about 1987; however, he retained his Lebanese citizenship.

9. The husband asserts that the parties’ property rights and financial rights were resolved by order of the Court in Lebanon on 24 November 1998. He says the words appearing in the relevant document “that neither party has any financial rights or liability towards the other” was a final property and spouse maintenance order between the parties.

10. The husband further asserts that there were discussions between him and the wife about property settlement before they were divorced in Lebanon. He said the parties reached an agreement that the wife would keep five cars together with all the household contents and that the husband would pay the wife’s credit card debts. He would also pay to the wife a few thousand dollars.

11. In 1998 the husband resigned from his job in Australia and received a retirement payment of AUD$12,000. He used those monies in part to pay the wife’s credit card debts and to pay her a few thousand dollars. Once those payments were made the husband said the wife “agreed that the divorce could be finalised.” The husband alleges that he retained no property of value from the marriage. The husband also alleges in March 1999 he gave the wife AUD$2,000 whilst she was in Lebanon.

12. In about the year 2000 the husband commenced building a house on the land he had inherited from his mother in Lebanon.

13. The husband asserts that the wife filed a further notice of appeal against the divorce in Lebanon on 14 February 2005. That appeal was lodged in the Supreme Jaafarite Canonical Court in Beirut. This evidence accords with the submissions which have fallen from the wife’s solicitors advising the Court that there is still an appeal outstanding in the Lebanon Courts.

14. The wife has caused criminal and civil proceedings to be instigated against the husband in Lebanon. The husband says the wife falsely alleged that on 30 September 2000 he physically assaulted her. The husband has been found not guilty of an offence arising from those facts.

15. Following from that determination the wife lodged an appeal against the decision and also sought that the husband pay her damages in the sum of $60 million Lebanese Lira (approximately AUD $47,916) together with costs of $10 Million Lira. The wife’s appeal was dismissed and she was ordered to pay costs. The wife has not paid costs as so ordered. That determination was made on 23 June 2006. These facts are not put in issue by the wife. The husband denies he has ever assaulted the wife.

16. The husband’s evidence is that his only income is derived from a Centrelink Disability Support pension. He receives AUD$350.14 per fortnight after rent and a debt to Centrelink is regularly deducted. The full pension amount is AUD$496.30 per fortnight.

17. The husband’s wife B receives an aged pension from Centrelink in the sum of AUD$350.14 per fortnight. That pension has rent and a debt to Centrelink deducted. Her maximum pension is AUD$496.30 per fortnight. She also receives AUD$110 per fortnight as a carer’s payment. The husband and his wife live in Department of Housing accommodation. They each pay AUD$130.06 as rent. In November 2010 the husband and his wife each borrowed AUD$774 from Centrelink which they repay at the rate of AUD$59.60 per fortnight. The money was used to fund an air ticket for the husband to visit Lebanon and see his sister who was unwell. The husband and his wife have a small amount of savings. The husband asserts he has no other assets. The husband and his wife closed their bank accounts in Lebanon in about 2006 or 2007 after they returned to Australia. The husband attests that he has no assets or money in Lebanon.

18. In relation to the Mercedes motor vehicle, identified by the wife in her affidavit, the husband says he bought that car second hand in the year 2000. He used money which he received from his resignation payment which he received in 1998. He received AUD$12,000 and he used part of that money to pay credit cards of the wife and to give her a few thousand dollars in accordance with what he alleges was their property agreement reached in 1998. The purchase of the motor vehicle cost him AUD$3000. The husband attests that the car was badly damaged in an accident around 2003 and then was destroyed by bombing in 2006 when war broke out between Israel and Lebanon.

19. In relation to Lot 244 in the region X, South Lebanon, the husband said that he inherited that land from his mother upon her death in 2000. There was no residence on the property at that time. The husband and his present wife B built a house on the property between the years 2000 and 2003. The money to build the property came predominantly from his wife B. Each of the husband and his wife B used part of their incomes to fund the building of the residence. The husband asserts that all money used to build the property was either capital of his wife’s or was earned by each of them following the divorce with the wife the subject of these proceedings.

20. The husband and his wife B lived in the residence in Lebanon until 2006. B left Lebanon on 4 July 2006 to holiday in Australia. A week later, war broke out between Lebanon and Israel. The husband was evacuated from the home.  He was evacuated from Lebanon on 27 July 2006. Although he did not return to the house he was informed that the house had been bombed. In 2007 the husband returned and viewed the property. He did not go inside the property. He said the property was burned and damaged. The glass in the windows was smashed and there were no doors. The husband was afraid there might be unexploded bombs in the house.

21. Because of that circumstance, the husband signed a document authorising his nephew D Taffa to sell the property. In 2008 the husband went back to Lebanon as D Taffa had not yet sold the property. He has had no contact with D Taffa since 2008 nor has he been able to ascertain the whereabouts of that man. In November 2010 whilst the husband was in Lebanon he was provided with information asserting that D Taffa was declared bankrupt. In his oral evidence the husband told me that the information he had been able to ascertain was that D Taffa had sold the property to his brother and had absconded with the proceeds. The husband believes that $70,000 was received by D Taffa and the husband has been endeavouring to find the whereabouts of D Taffa to see if there is any prospect of recovering that money.

Husband’s Oral Evidence

1. The husband asserted that at the time of separation from the wife he provided financial support in the form of payment of rent for the wife. He acknowledges that he received a worker’s compensation payment. He said with that he took the wife and children to Lebanon. He acknowledged that he had received superannuation. He said that he set out the details in an affidavit and it was 11 years ago. He denied he had bought any property in Lebanon. He said there had been land in his father’s name. The government had resumed or taken it back. However, later his mother had died and by a will dated 8 October 1999 she had left him a portion of land. It was on that portion of land he had built a house with his second wife. He denied that the house had not been destroyed in the war between Lebanon and Israel. He denied he continued to own property in Lebanon. He understood that D Taffa had sold the property as his agent. He denied he had any property currently in Lebanon. That included any bank accounts. The husband was asked would he sign an authority to Lebanese banks to provide details or any accounts held in his name. He replied if ordered to do so he would.

2. The husband was asked whether the wife had looked after the children in the course of the marriage. He denied that she had. He asserted that she had studied and that he had been the primary care giver to the children.

Law in Relation to Inappropriate forum

1. The High Court judgment in Voth v Manildra Flour Mills (1990) 171 CLR 538 is the principal case on the subject of clearly inappropriate forum and sets out the relevant test in this area. The test requires that the Court weigh up the advantages and disadvantages of proceeding with a matter in the selected forum.

2. These elements were extracted and applied in Gilmore & Gilmore (1993) FLC ¶92-353 and cited in Henry v Henry (1996) 20 Fam LR 171, where the Full Court said:

   12. In Gilmore v Gilmore the Full Court of the Family Court outlined five elements of the test which their Honours derived from Voth. Those elements are:

   1. A party who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise;

   2. The power to stay proceedings regularly commenced is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are 'oppressive', 'vexatious' or 'an abuse of process'. Those adjectives are to be construed liberally, in the sense already referred to. (16)

   3.The fact that the balance of convenience favours another jurisdiction or that some other jurisdiction is a more appropriate forum, will not justify a stay of the action.

   4. In the application of the above principles the discussion by Lord Goff in Spiliada of relevant 'connecting factors' and 'legitimate personal or juridical advantage' provides valuable assistance.

   5.In deciding whether the chosen forum is clearly inappropriate, the extent to which the law of that forum is applicable in resolving the rights and liabilities of the parties is a material consideration. The selected forum will not be seen as inappropriate 'if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties'."

I am in respectful agreement with these points provided the fifth point is understood in the context in which it appears in the judgment. The Court explained the fifth point by reference to a quoted passage from the majority judgment in Voth (17):

"We agree with Gaudron J that the substantive law of the forum is a very significant factor in the exercise of the court's discretion, but the court should not focus upon that factor to the exclusion of all others."

1. In Henry, the Court indicated that the first element, the prima facie right to invoke the jurisdiction, ought to be treated with some caution. The Court held that a prima facie right would be a factor in a matter in which the competing jurisdictions are closely balanced, but in other cases the prima facie right could only have bearing insofar as it indicates that to the party seeking a stay, it has to prove that the forum chosen is clearly inappropriate.

2. It should be noted that Henry dealt with a divorce proceeding, as opposed to a property matter. That fact is highly relevant in this matter as this is a matter which has a history involving a dispute and determination as to the validity of a divorce obtained in Lebanon. The facts of Henry were that the parties, a German wife and an Australian husband, were married in Germany in 1977. The parties moved to Monaco some ten years later and resided there together until 1993, when the husband moved back to Australia. The wife began divorce proceedings in Monaco following separation. The husband commenced proceedings against the wife in Australia after he returned to Australia to live.

3. While Henry relates to a different aspect of family law, it contains a significant discussion of the general principles relating to inappropriate forum.

4. Dawson, Gaudron, McHugh and Gummow JJ discussed in Henry the meaning of the terms ‘vexatious and oppressive’ in relation to simultaneous actions or applications in separate jurisdiction. They held that a second application in another jurisdiction is oppressive and vexatious, in the strictest sense of the word. However, as the Voth test determined that the terms should be construed liberally, the judgment in Henry examined more closely the considerations to be taken into account:

   36. It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are 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".

5. In Henry, there are further matters set out which are to be taken into account in determining whether Australia is an inappropriate forum, which, inter alia, include:

   ·Whether the Courts in the respective countries have jurisdiction to hear the matter;

   ·Whether the respective Courts recognise and apply the decrees of a foreign jurisdiction;

   ·The order in which proceedings were instituted, the stage reach and the costs incurred;

   ·The connection of the parties and their marriage to the jurisdictions;

   ·Whether the parties would be able to participate in the respective systems on equal footing, based on such considerations as financial resources, understanding of the language, and so on;

6. This list is not a complete list, but as the matter of inappropriate forum is a discretionary matter, there is no one set of questions which will catch the situation of every matter which comes before the court. Their Honours summarised this position in Henry:

   [40] …  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.

The submissions of the husband in relation to inappropriate forum

1. The husband draws the Court’s attention to the judgment of Henry, in which the substance of the inappropriate forum test was held to be whether the forum is clearly inappropriate based on whether the action of the applicant is:

   i)Oppressive, in that it is unfair and burdensome

   ii)Vexatious, in that it causes serious and unjustified trouble and harassment.

2. In Henry, a significant detail was the revelation of other proceedings on foot in the other jurisdiction in question. The husband submits that, on the wife’s evidence, there are still proceedings pending in Lebanon at the present time. The wife says that she filed an appeal in 2005 to the most recent decision of the Jaafarite court, and that appeal is yet to be determined.

3. The husband submits the only logical conclusion which can be drawn as to why the wife continues to appeal the order made in November 1998 is because she sees it as an obstacle to her pursuing property and maintenance proceedings against the husband in Australia.

4. The husband submits the parties invoked the power of the Lebanese Courts to effect their divorce and to finalise the distribution of the matrimonial property. The wife has subsequently invoked the jurisdiction of the Lebanese Appeal Courts in order to appeal the decisions reached. She contends there are still legal proceedings on foot in Lebanon. The husband submits that on the basis of those facts, it would be vexatious and oppressive (strictly construed) to commence separate proceedings in Australia.

5. In relation to the question of whether the Lebanese Courts have the power to deal with property distribution arising from a breakdown in a marriage, as opposed to issues of dowry and maintenance, the husband draws the Court’s attention to Exhibit H1. In the first decision of the Lebanese Court contained therein, dated 13 July 2000, the court was asked to clarify what it meant when it said that “both parties declared that neither party had any monetary right against the other”. The clarification of the court stated that the original decision was “inclusive of all monies payable” and that the parties were “free of any further financial obligation” to each other. The wife appealed that decision on the basis that the Religious Court did not have the jurisdiction to determine all property matters, but only those related to dowry and maintenance. The decision, handed down on 10 July 2001, was that the Al Bathal divorce can legally include the rights incurred as a result of the marriage without those rights having to be specified or limited.

6. The husband submits that the current proceedings in this court are essentially the same as those which have gone before the Courts in Lebanon. The wife has pursued this claim through the Courts in Lebanon, and for this reason, the husband relies on the judgment in Henry at [37].

   [37] If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.

1. The husband also submits that there is an issue arising out of the ability to enforce orders made by an Australian court in Lebanon. There are two heads under which the husband frames his submissions: the location in which the orders are to be enforced, and the existence of assets against which the wife could seek an order or enforce any order made.

2. The husband noted that there are no orders being sought in this application which are to be enforced in Australia, however, the wife seeks orders which relate to property and funds she asserts are situated in Lebanon. The husband at present lives in a rented Department of Housing house, and is supported by a means-tested pension. There is little or no property available to the wife in Australia which could satisfy any property order achieved by the wife if she had any success with her claim.

3. The husband submits that the overwhelming proportion of matrimonial litigation between them has taken place in Lebanese Courts. The parties sought a divorce there in 1998; they also elected to have their property matter settled there at the same time. There have been several appeals, initiated by the wife, against the original judgment in that jurisdiction, and there is still an appeal pending.

4. The husband disputes the ability of the wife to claim against property in Lebanon as he says he is not the owner of any property there. The property issues are quite complicated: there are issues as to the ownership of two properties and the state of repair of a formerly owned property.

5. The husband directed the Court’s attention to the wife’s Affidavit dated 19 July 2011. In annexure “B” to that affidavit, there is a translation of article 1016 of the “enforcement of foreign judgments”, which states that

   Lebanese courts must decline the execution order in the following cases:

   (a)If a final judgment had been issued by the Lebanese legal system, between the same parties in relation to the same conflict which led to the issuance of foreign judgment.

   (b)If a lawsuit between the same opponents, in relation to the same conflict, filed earlier than the lawsuit that resulted in the foreign judgment is still pending before the Lebanese courts.

6. Given the events detailed above, the husband submits that the Lebanese Courts, bound to apply the abovementioned statute, would refuse to execute the decision of a foreign court (that is enforce a registered foreign judgment) should the wife happen to obtain such an order from the Australian Courts. The husband contends there has been a judgment on the same issue in Lebanon (i.e. financial/property orders), and relies on the wife’s statement that there is an appeal on foot.

7. On the basis of the connection of the matter to Lebanon, the complexity of the property issues, and the likelihood that the Lebanese Courts will refuse to execute an Australian determination of financial and property matters (following divorce), the husband submits that Australia is a clearly inappropriate forum in which to hear these proceedings and as such, the  matter should be stayed.

The submissions of the wife in relation to inappropriate forum

1. The wife also draws the Court’s attention to the case of Henry. She submits that she has a prima facie right to exercise the jurisdiction of the Courts in Australia. The wife submits that both parties live in Australia, and have, in fact, lived in Australia for the greater part of their marriage. They also have children who live in Australia. On this basis, the wife submits that she has a right to bring an action in the Court unless the court finds that the action is vexatious, oppressive or an abuse of process.

2. The wife submits the application she has before the court is not vexatious as it was commenced in the year 2000, at a time which, she claims, there was no other application on foot.

3. The wife submits there are significant factors which support this application being heard in Australia. Her evidence is that she does not have the financial resources to travel to Lebanon in order to pursue an action there. It should be noted that the wife has previously been involved in appeals in Lebanon, however, there is no evidence that she was required to leave Australia in order to prosecute them. Her evidence is also that she lives in Australia and has maintained her residence in Australia since her arrival in 1985. She has visited Lebanon since that date.

4. The wife further submits the husband’s application to stay the proceedings should not be granted as the parties both live in Australia, and further, both receive benefits through social welfare in this country. She says the dependence of both parties on the social welfare of Australia shows a clear connection between the parties and the jurisdiction.

5. In the wife’s submissions she also adverted to her claim that the husband has not disclosed all of his assets. She submits the lack of disclosure of assets in Lebanon, by the husband, should not be the foundation for a rejection of her application. She submits she should be given the opportunity to pursue her entitlement to property she says he has, and an order by the Australian courts to prevent that opportunity would prejudice any claim she may attempt to make in Lebanon in the future.

6. The wife submits the fact of the husband opposing her claim should be seen as an indication that he has property to protect. She notes that the husband did not challenge the documents she produced in relation to the Lebanese title deeds. She asks the Court to draw the inference from this that in relation to such property the husband still has an interest in those properties.

7. The wife further submits that the Religious Courts in Lebanon do not have jurisdiction to hear or determine the property matter insofar as it relates to property acquired throughout the marriage. The wife submits the Lebanese Religious Courts only have jurisdiction to determine matters related to dowry and maintenance. In her evidence, the wife draws the Court’s attention to attachment “A” of her Affidavit filed 19 July 2011, being a translation of articles 16, 17 and 18 of the Lebanese Act relating to the jurisdiction of the religious courts. She submits that Act does not list matrimonial property and thus determinations of the Courts in Lebanon on that topic, both past decisions and future applications, are invalid due to the lack of jurisdiction on the part of that Court. I pause here to note that in the appeals thus far prosecuted by the wife in Lebanon against the order of the Religious Court, she has not been able to convince any appellate court of this argument.

8. The wife submits that as Australia does have the jurisdiction to hear property applications relating to property acquired during a marriage, it is the correct jurisdiction for her property and maintenance application. Further, she draws the Court’s attention to the annexure “B” of her Affidavit filed 19 July 2011, being a translation of articles 1009-1922 of the Lebanese Act relating to the enforcement of judgments made in foreign jurisdictions. The wife submits that if the Court in Australia should make an order in her favour, then there is the mechanism available for the wife to have that order enforced by the Lebanese Courts.

9. Finally, the wife submits that the granting of a stay in this jurisdiction will prevent her from bringing any further action not only in Australia but in Lebanon. She submits that the Lebanese courts will regard the Australian decision as an indication of the merit of the wife’s application and any subsequent applications in Lebanon will be disallowed. This last submission seems to me to be based upon pure speculation and no evidence or decision of a Lebanese court was provided to support the submission.

Determination

1. The wife has a prima facie right to apply for adjudication in an Australian court. She is both ordinarily resident here (and has been for over two decades) and is an Australian citizen. Both parties continue to reside here and obtain from the government a pension and government accommodation.

2. The complicating factor is that the property at the heart of the wife’s claim, if it exists, is in Lebanon. The parties have chosen to be divorced under Lebanese law, even though both were resident in Australia at the time. There are, according to the wife, still proceedings on foot in Lebanon. Those proceedings are in relation to matrimonial property and spouse maintenance and include the validity and scope of an order/declaration made at the time of the divorce of the parties. Those issues have been adjudicated there and appealed on more than one occasion. The latest appeal is yet to be determined by the court.

3. The current proceeding in Lebanon is said by the wife to be an appeal in relation to the matrimonial property and whether the Jaafarite Court has the jurisdiction to make decisions on matrimonial property beyond the extent claimed by the wife. If the wife is unsuccessful in that appeal and if the Appellate Court, in its reasons, states the order made at the time the divorce was granted was not restricted as the wife contends, then the parties would have to anticipate the wife would be estopped in Lebanon from further pursuing the husband for financial and property orders. They would also have to anticipate that this Court would likewise refuse the wife any further avenue to pursue such orders.

4. The purported property at issue (if it exists at all or has any significant value) is said by the wife to be located in Lebanon. The parties agree that there is no property in Australia to be divided. Certainly the wife has not identified any property or resource in Australia.

5. As to whether the parties have equal footing in both Australian and Lebanese courts, there is no evidence before the Court to suggest they do not. I am inclined to think that the parties are equally able to bring an application in Australia and Lebanon. The wife submits that should her application here be refused, it will be the end of the matter for her entirely. There is no legal basis proffered for that submission and I reject it.

6. In Australia, the parties are both legally represented, despite both being recipients of pensions from the Australian Government. They have a similar understanding of English, and both have access to the legislation and court processes.

7. I find that there is a similar ability in each party to bring an application in Lebanon. Being in similar financial circumstances, they may each be restricted in travelling to Lebanon. The wife submits the husband has some unfair influence on the decisions of the Lebanese courts as he is male and she is female, yet she has not produced any evidence of this imbalance within the Lebanese judicial system. Indeed, the wife has obtained a Law degree in Lebanon, which may indicate that she is better placed to navigate the Lebanese court system than the husband. The fact that she has not been successful in any of her appeals is not an indication that there has been any unfair advantage or disadvantage had by either party.

8. In the proceeding determined by me on 21 January 2009 there was evidence before the Court to the effect that a wife could only be the applicant for a divorce with the husband’s consent. There was no evidence however to say that following a divorce a wife could not apply for relief such as property division or spouse maintenance without the consent of the husband.  

9. It is important to note that there have been a number of applications, hearings and appeals between these parties, in two jurisdictions, since they divorced in 1998. That history is proof positive that each party has had the ability to make and defend applications in each jurisdiction.

10. I do not accept the wife’s submission that any decision made by this Court in relation to the stay application will influence the Lebanese courts in relation to whether they will hear any future application made by her there. The decision in relation to inappropriate forum relates solely to the issue of inappropriate forum, it is not a de facto judgment of the merits of the wife’s case.

11. Each party submitted evidence as to whether the Lebanese courts would recognise an Australian decision. There are two sections of particular relevance.

12. The legislation claimed by the wife to be chapter 8: “Enforcement of Foreign Judgments and Bonds” contains two articles in particular which are of interest in relation to whether the Lebanese courts will recognise and enforce the judgment of a foreign jurisdiction.

1. The husband asks that the Court accept that the wife’s latest appeal, filed in 2005, is finalised, as there is no evidence of its existence but the wife’s verbal evidence. Nonetheless, the husband submits that the 24 November 1998 orders are final. He submits that the orders regarding property were part of a divorce decree of the Jaafarite Court. Further, the orders were confirmed in subsequent appeals, and should be regarded as conclusive. Finally, the husband submits that there is no suggestion by the wife that she is able to apply to the Jaafarite court to vary the orders in any way. On the basis of these submissions, the husband submits that the 24 November 1998 decision was final.

2. With regard to the question of whether the decision was on the merits, the husband submits that the merits of the original decision and issues of procedural fairness were canvassed in the appeals to the Jaafarite Canonical Court. The husband draws the Court’s attention to Annexures “G” and “H” to the husband’s Affidavit filed 25 February 2011, in which these issues are addressed and the original orders upheld. The husband submits that on the basis of Miller and Caddy (at 863), the Court is not required to determine whether the Jaafarite Court applied a different system of law to that which the Family Court of Australia would apply.

3. The husband next addresses whether the Jaafarite Court had jurisdiction over the parties in the matter and whether the same question as was determined in the Jaafarite Court was raised in the Family Court of Australia. He submits that the decision of 24 November 1998 “that neither party has any financial rights or liability towards the other” was a decision which determined all property matters and spousal maintenance issues between the parties.

4. In response to the wife’s submission that the Jaafarite Court did not have the jurisdiction to deal with matrimonial property, the husband submitted that the wife put this question to the Jaafarite Higher Court of Appeal, and that court dismissed her appeal and upheld the original judgment as lawful.

5. It is submitted that the wife seeks to put before this Court evidence which seeks to dispute the correctness or merits of an earlier decision in proceedings between the same parties (per Miller & Caddy 863). The husband further draws the Court’s attention to Henry & Henry (1996) 185 CLR 571 at paragraph 37, in relation the factors to be taken into consideration when determining whether the two matters in question are related to the same controversy. The majority stated in that judgment:

   If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will be but aspects of an underlying controversy with respect to the marital relationship. 

6. From the paragraph above, the husband submits the wife’s application can be seen to be part of the controversy with respect to the marital relationship. The husband submits the judgments of the Jaafarite Court on 11 July 2000 and 11 July 2001 are both concerned with the distribution of property between the parties to the marriage, as is the matter before this Court.

7. Finally, with respect to the element of “the same parties” being parties to both proceedings, the husband submits it is common ground the parties are the same in the current proceedings to the previous proceedings.

8. The husband submits that on the basis of these submissions, the elements of res judicata have been met and the wife is therefore estopped from proceeding. The husband seeks a stay pursuant to the doctrine of res judicata, and alternatively seeks a stay on the basis that Australia is a clearly inappropriate forum (per Kemeny & Kemeny (1998) FLC ¶92-806 and Pagliotti & Hartner (2009) FLC ¶93-393)

Submissions of the wife

1. The wife bases her submissions on annexure “A” to her Affidavit sworn 19 July 2011, which stipulates the powers and jurisdiction of the Religious Courts in Lebanon (of which the Jaafarite Court is one). The wife submits the jurisdiction of the Jaafarite Court, in relation to property matters arising from matrimonial causes, falls short of the jurisdiction possessed by s 79 of the Family Law Act. The wife submits the Jaafarite Court only has jurisdiction insofar as Dowry and spouse maintenance is concerned and moreover the Court is prohibited (per articles 17 and 18 of chapter 2 of the Jurisdiction of Courts of First Instance Act of Lebanon) from dealing with property division. It seems, from a reading of the judgments of the appellate courts annexed to the parties affidavits, that the appeal courts, which the wife has appeared before in relation to setting aside the order made for divorce and property settlement on 24November 1998, have either been ignorant as to the provision of the Jurisdiction of Courts of First Instance Act of Lebanon, or alternatively have moved on the basis that the said act has no application to the case.

2. The wife submits the Court should accept the Lebanese court jurisdiction as set out in Articles 17 and 18. Given that acceptance, the wife further submits that the Court is bound to follow the principles as set out in Calvery & Green (1984) HCA 81 and Baumgartner & Baumgartner (1987) HCA 59, which is the (implied) principle that matrimonial assets in the name of one party are held in trust for the other party. Further, the wife submits that the Lebanese Court does not recognise a resulting or implied trust. No evidence of that submission has been provided.

3. The wife submits that the Court should disregard any reference to Sheikh Addul Ilah Dbouk (in the Jaafarite Court judgments contained in exhibit “H1”) when he proclaims that “neither party has monetary right against the other especially in relation to any matrimonial rights resulting from the marriage” as the wife says that this is not a proper representation of Lebanese law.

4. The wife further points to the judgment of Sheikh Abdullah Shaito (in the Jaafarite Court judgments contained in exhibit “H1”) in which he states “the wife had made an application to the Australian Courts in order to obtain financial gains guaranteed by Australian Law which is against the principle of sacred religion”, and submits that it would be unfair and unjust for the wife to lose entitlements from 27 years of marriage based on this judgment. It is further submitted that the husband has used the Lebanese courts to give the appearance that the issues have been dealt with by a competent court of the appropriate jurisdiction. She submits that religious courts and religious laws could not and should not be used to defeat legitimate claims in properly empowered courts.

5. The wife submits that the application made to this Court in May 2000 was not contemporaneous with any similar applications in the Lebanese courts, and therefore her application could not be said to be related to any other application nor could it be said that it has been determined in another jurisdiction.

6. The wife draws attention the words attributed to her by the husband in paragraph 33 of his Affidavit sworn 22 February 2011 “But I will not sign anything for a divorce in the Courts until we have settled what you owe me. I want you to leave me all assets and then I will sign”. She submits that it is not conceivable that she would abandon that position claim to matrimonial property in Australia to submit to a determination in a court which, she claims, has not the jurisdiction to determine such matters.

7. The wife submits her claim is not vexatious, as she claims evidence which she has provided in relation to the jurisdiction of the Lebanese courts should negate any suggestion that her claim has been determined elsewhere. She submits that any decision made in an Australian court will be flawed if based on the decision of a court in Lebanon without appropriate jurisdiction. She further submits that because the issue of matrimonial assets could not be decided in Lebanon in the previous decision, it is incumbent on the Australian court to allow the respondent wife to proceed in this jurisdiction.

8. The wife finally submits that the issue of enforcement of any decision made in the Family Court ought not influence the Court to decline jurisdiction. She relies on legal advice from her Lebanese lawyers that mechanisms exist in Lebanon to enforce any judgment from an Australian court.

Determination

1. I propose to apply the principle, as adopted in Miller v Caddy. That principle is that the doctrine of res judicata applies where:

   ·    The decision was judicial;

   ·    The decision was in fact pronounced;

   ·    The tribunal had jurisdiction over the parties and the subject matter;

   ·    The decision was final and on the merits;

   ·    The decision determined the same question as raised in later litigation; and

   ·    The parties to the later litigation were the parties to the earlier litigation.

2. In regard to the first element, I am satisfied the matter was heard before a properly constituted Court of Lebanon.

3. In relation to the second element, it is clear the decision became embodied in an order of the Court.

4. In relation to the third element, each of the parties subjected themselves to the jurisdiction.

5. In relation to the fourth element, the decision was final and there is no suggestion by the wife that it was not. Each of the parties was represented at the hearing. There was no apparent issue between them which needed to be extensively argued. The order in relation to property had all the hallmarks of a consent order.

6. In relation to the fifth element, the decision determined all of the issues the wife now seeks to pursue in this Court.

7. In relation to the sixth element, the parties before this court are identical with the parties in the earlier decision of the Lebanese Court.

8. The wife’s submission is essentially that the Lebanese Court did not have the jurisdiction to deal with the matrimonial property and on that basis I should allow her application to continue before this Court. She submitted that I should rely on the untested evidence of her legal representatives in Lebanon in relation to enforcement of overseas judgments. The advice is annexed to her affidavits relied upon in this hearing. I have not sufficient evidence before me to be able to take into account any legal advice given to the wife. There are no affidavits by recognised experts on the matter, nor have any experts been appointed by the court to provide evidence on the point.

9. The wife also submits that I should also disregard portions of the judgments handed down in Lebanon (the appeals) as being “not a proper representation of Lebanese law”. This is essentially a request that the Family Court of Australia become an Appellate Court in this matter, judging, by the standards and practices of this Court, the judgment of a foreign court. I decline to take on such a role, and, as I have said earlier in this judgment, any judgment by me on the jurisdiction of a foreign court’s jurisdiction would in all likelihood be rejected by said Court.

10. I am satisfied that the indicia required to invoke the doctrine and give rise to the estoppel are satisfied in this case and consequently it would be appropriate to restrain the wife from proceeding further with her application for property settlement in this Court.

11. If I be wrong in that determination I continue to consider the wife’s application under s 44(3) of the Act.

The wife’s evidence in support of application for leave

1. The wife relies on her Affidavit sworn 15 March 2011. At paragraph 14 of the Affidavit, under the title “Reasons for applying for Australian’s (sic) proceedings” the wife outlined the following evidence:

   Under the Jaafarite shariaa divorce rules and Islamic Law in general the divorce dated 24 November 1998 that had occurred in Lebanon is null and void, as the respondent and I resumed living as husband and wife before the compulsory three months waiting period had expired

   Even though my divorce is registered in the Court of Lebanon and appears as a formal divorce, I am not divorced under Shariaa of Islam

   My certain common knowledge about the divorce dated 24 November 1998 that was null and void from the point of view of Islam has strengthened my belief that in bringing my application of property proceedings on 26 May 2000 in the Family Court of Australia it would not be out of time. Also what strengthened my belief even more was, the fact, that no divorce proclaimed by the Family Court of Australia at that time

   In the main time (sic), because of the uncertainty and ambiguity of the happened divorce I travelled to Lebanon many times between 1999 and 2003 and attempted to rectify the matter with the court to no avail. The Islamic Religious Court are simply not a place where a woman would want to be to ask for her right as a man with enough means or connections would easily sway the Religious courts and obtain any judgment he wishes

2. In relation to the wife’s financial position, at [23] of her affidavit dated 15 March 2011, the wife further states:

   At the time of separations, the respondent husband had control of all the movable and immovable property in that it was held in his sole name or invested in his sole bank account or he had taken the money with him on trips to Lebanon and invested such monies there in Lebanon.

   [24]     At the time of separation I had no property in my name only my personal possessions. In fact he took all family money and left me with the children in devastating situation struggling paying the debts.

The wife’s submissions in relation to leave pursuant to section 44(3) and 44(4)

1. The wife submits that her original application for property orders was only seven months out of time and that she has been prevented from pursuing this claim through no fault of her own. She attributes the delay to the fact that she was pursuing her claim through the Lebanese courts, first to clarify the property aspects of the decision (2000-2001), then to seek to annul the divorce.

2. The wife submits that she is and has been in financial hardship. The wife draws the Court’s attention to her application of 2002, in which it is noted that she is unemployed and was the carer of three children. She also submits that at the time she filed her original application, she was in doubt as to whether she actually was divorced.

3. It is the wife’s submission that she would suffer a substantial injustice should her application be denied. This matter has taken 10 years to reach this point and the wife submits that to deny to her application now would be a substantial injustice and would be a ‘death knell’ to her obtaining her rights. She states that it is the actions of the husband, in disposing of property without consulting or considering her, that has led to her hardship.

The husband’s submissions in relation to leave pursuant to section 44(3)

1. The husband submits that the application for leave to apply for property orders out of time should not be granted.

2. Regarding the wife’s applications for maintenance, the husband submits that the test in that instance is whether, at the end of the time in which the application could be brought without leave, the wife can show that she was unable to support herself without an income tested pension.

3. In relation to this test, the husband submits that the wife has detailed her current financial status in her affidavits filed in 2011, but has not provided information regarding her financial position as at 24 November 1999, when the time in which she could bring an application without leave expired. The husband relies on the wife’s Affidavit filed 15 March 2011, in which, at paragraph [14], the wife says that she travelled to Lebanon “many times between ’99 and 2003”, the inference being that if the wife was able to pay for these trips she had a means of financial support at that time. The husband submits that in the absence of any information regarding hardship, the Court should not allow the application of the wife.

4. In relation to the husband’s financial position, the husband submits that he is currently living on an Australian Government provided income and is living in Department of Housing accommodation. In his Affidavit filed 25 February 2011, the husband states that he has no assets in Australia and no assets or money Lebanon. On the basis of this evidence, the husband submits that the wife will suffer no hardship if her application is not granted, as there is no property available for division, and so she will not be in a worse position than she is now.

Determination of the Application for leave pursuant to section 44(3)

1. I have previously set out the relevant sections of the Act.

2. It must firstly be noted that the wife lead no evidence capable of establishing the matter referred to in s 44(4)(b). The determination therefore focuses on the provisions in s 44(4)(a).

3. In deciding whether to allow an application out of time, there are two main elements which the Court must take into consideration.

4. The Court must first decide whether hardship would be caused to a party if leave were not granted. Hardship has been held to mean, “in the context whether on the applicant’s material he or she has a reasonable claim to be heard by the court”: Hall and Hall (1979) FLC ¶90-679.

5. Should it be determined that hardship would be caused, the Court must then decide whether to grant leave. This second element is a discretionary matter, which would incorporate an examination of the broader context of the application, for example, the effect of granting leave on the other party, and the reason given by the applicant for not applying within time. The Court is required to balance the hardship that granting leave will do to the respondent against the hardship of the applicant should leave not be granted.

6. The recent judgment of O’Ryan J in Tamaniego and Tamaniego [2010] FamCAFC 254 neatly encapsulated these elements. The Court in Tamaniego stated:

   154. … If the Court is satisfied that hardship would be caused if leave were not granted, the Court may exercise the discretion which is conferred upon it by sec. 44(3) to grant leave or it may refuse such leave. Section 44(4) inhibits the granting of leave unless the requisite case is made out, but it does not provide that leave must be granted if the Court is satisfied that hardship would be caused.

7. The decision of Hedley& Hedley (2009) FLC ¶93-413 is a recent affirmation of the judgment of Whitford in which the approach to the determination of applications under s 44(3) is considered:

   128.In Whitford & Whitford (1979) FLC 90-612 the Full Court (Asche and Pawley SJJ and Strauss J) referred to the appropriate way for proceedings to be conducted. Having said they did not consider it necessary or desirable to lay down any definitive procedural rules their Honours noted the following:

   •an application for leave to institute proceedings under s 44(3) is not intended to be the final hearing of the matter;

   •         the applicant should file adequate affidavit evidence;

   •the respondent should have an opportunity to file an affidavit in answer to adduce material showing why leave to institute proceedings should not be granted;

   •in an appropriate case the applicant should have an opportunity to file an affidavit in reply;

   •cross-examination of either party on his or her affidavit material should be permitted.  On occasions oral evidence may be received;

   •if necessary, the Court may allow an applicant to conduct some investigation into the financial position of the respondent; and

   •the question to be borne in mind is whether leave should be granted, enabling the applicant to institute proceedings (and the extent of the proceedings and any investigation should be regulated accordingly).

1. Hardship is generally held to be defined as “substantial detriment”. The Full Court in Hall & Hall, which decision continues to be followed, said in relation to deciding whether hardship is established:

   Fundamental to that is a determination of the quality or character of the potential claim […] the […] fundamental inquiry which basically is in the context whether on the applicant’s material he or she has a reasonable claim to be heard by the court.

2. Hall provides further guidance:

   It is therefore an inquiry as to whether in the particular circumstances of the case in question the applicant would suffer hardship by the refusal to grant leave which sec. 44(4) permits the court to grant.  As all of the authorities point out, the fact that the applicant demonstrates that he or she has a reasonable claim to present to the court is not necessarily the same thing, although that is an important aspect of the matter.  That circumstance must then be considered in the light of all of the facts in determining whether at this particular stage the applicant would suffer hardship by the application being refused.  That involves amongst other matters some consideration of the then financial and other circumstances of both parties.

3. If hardship can be established, the Court must then look to the history of the proceedings and satisfy itself that allowing the delayed application would be appropriate. The Court does not only need to take in the reason for the delay in the application, but instead look at all the factors and make a judgement taking them all into account. In Tamaniego, O’Ryan J stated:

   [162] As to the second part of the exercise, the fundamental issue in any application for extension of time is whether this will enable the court to do justice between the parties … In summary, in considering the second question the court may have regard to a number of factors that include whether the applicant has an adequate explanation for the delay in bringing the proceedings and whether to grant leave would prejudice or impose hardship on the respondent to the application for leave or other persons.

4. In Hedley, the procedure for such an examination was set out:

   [218] .  An applicant must therefore also set out in affidavit form any material which would support the court exercising its discretion in the applicant’s favour. That material includes but is not limited to, the length of the delay, the adequacy of the explanation for the delay, the prejudice occasioned to the respondent by reason of the delay and the strengths of the applicant’s case.

5. In this instance, as the wife has put no evidence before the court to enable the court to consider whether s 44(4)(b) might apply to her application it is therefore necessary to look at s 44(4)(a) to determine whether the Court will allow the wife to bring an application out of time.

6. The financial positions of each party are highly relevant to the question of whether the wife would suffer hardship should the application be refused. The wife is seeking some $200,000 by way of property settlement and/or lump sum spouse maintenance.

7. The wife is currently unemployed and receives a Centrelink disability support pension which is her only income. She receives $592.30 per fortnight, from which a significant portion is deducted to repay various utility bills, loans taken from Centrelink, and fines. She lives in Department of Housing accommodation. Her rent is $205 per fortnight. She has a credit card debt of $7,000 and she has other debts including a debt to the Australian Tax Office. The wife has no savings of any moment.

8. The husband is also unemployed and lives in Department of Housing accommodation. He and his wife B each receive a Centrelink Disability Support pension of $496.30 per fortnight, and have $130.06 deducted as rent. They also have money deducted each fortnight to repay a loan taken from Centrelink. The husband claims that both he and his wife closed their bank accounts in Lebanon in about 2006 or 2007 and that he has no money or assets in Lebanon.

9. There has been no evidence produced that directly contradicts the husband’s evidence of financial hardship. The wife submits that the husband has been dishonest in his dealings with her and with the Court, however there is no evidence which would substantiate that claim. The wife has put evidence before the Court which may establish that the husband owns a piece of vacant land in Lebanon. The husband denies the property is his. He did agree he once owned the property, but he says it has been stolen from him.  Both parties are, as far as I can determine, dependent on the Australian government for financial support with no further assets upon which they may draw.

10. It is quite clear that the wife is in a position of financial hardship. It is not clear that the wife will suffer hardship should her application be refused. From the evidence before me, the husband has neither assets nor money (at least in this country), other than the assistance he receives from the Australian government. Were the Court to make orders in favour of the wife, those orders would be based on an asset pool made up of the parties’ Centrelink payments and personal items such as furniture and the like, together with any assets the wife could establish exist in Lebanon. There is essentially very little in this pool to divide, and no evidence has been put forward that this situation will change at any time in the future (e.g. no expectation of future inheritance).

11. Further, should the Court make the orders sought by the wife, the husband appears to have no capacity to comply with them, at least in this country. Any orders made for lump sum payments would essentially be empty orders, as the evidence has failed to establish the husband has capacity to meet such an order.

12. It is not possible for the wife to prosecute a property or maintenance order in Australia until she can establish that the orders made by the Lebanese court at the time of her divorce application was determined were not property and spouse maintenance orders as we would clearly understand that term to mean in Australia. This is because of the doctrine of res judicata as discussed earlier. Thus there must be a real concern that if granted leave the wife would not be able to establish that property and maintenance orders have not been made in the Lebanese court as asserted by the husband. That fact must be seen as a very significant obstacle in the wife’s application for leave under s 44(3).

13. If the wife is unable to establish that there is property sufficient to meet any order the Court could make then she could suffer no hardship. In such a circumstance the wife would have nothing of substance to gain by proceeding with a property application.

14. If the wife succeeds in her appeal in Lebanon then there is no evidence to suggest she could not seek property orders in Lebanon. As determined earlier Lebanon is the most appropriate place to conduct any such proceeding between the parties as that is the country where the only possible property of the husband is said to repose.

15. Each is represented by a solicitor.  The wife is 58 years of age and not in employment. There is no suggestion the wife will be employed in the future. The husband is husband is 65 and not employed. There is no suggestion he will be employed in the future. He is also in receipt of a legal aid grant to conduct the proceeding.

16. In my view, even if the wife was able to establish hardship, there are reasons the Court would not grant the wife leave to commence the proceeding. Those reasons include:

    ·There can be no reasonable expectation that the wife will be able to achieve any property or lump sum spouse maintenance order at all.

    ·The wife still has proceedings on foot in Lebanon, and if successful there she may have no need to proceed further in the Australian courts.

    ·The wife chose to bypass the Australian legal system when she sought her divorce in Lebanon at a time when, on any version of facts promoted by the parties a divorce could not have been granted in Australia as the parties had not been separated for a period of 12 months.

    ·The proceeding in Australia will impose hardship on the husband in having to defend the wife’s application. He has no resources in Australia which could be identified as a fund to meet his costs of defending the proceeding. If the wife is unsuccessful in the proceeding then she has no fund available to meet any cost order which may be made against her.

    ·The husband claims the wife has been ordered to pay his costs of proceedings in Lebanon. No evidence of such an order has been provided. The husband claims the wife has never paid those costs orders. Should the husband be able to establish his allegation, then to allow the wife to proceed with her application in Australia (with the prospect of failing again against the husband and leaving him with a legal bill to pay) would work further hardship against the husband.

17. The wife has not met the requirements of s 44(4) of the Act. Her application should be refused.

18. The obstacles facing the wife in the attempt to prosecute property and lump sum spouse maintenance proceedings are so momentous, as illustrated by these reasons, as to impact upon the discretion of the Court in considering her application under s 44(3). As stated above she has failed to address significant matters relating to her application for leave. She has made no apparent attempt to explain the delay in bringing the application for leave. It is to be remembered that the wife filed her application for property and/or lump sum maintenance orders on 26 May 2000. She did not file an application for leave to commence that proceeding out of time until 20 June 2011. The only explanation which is capable of being discerned is that she has been attempting to overturn the orders made in the Lebanese Court and that has taken many years.

19. Estoppel by res judicata will operate in this case to prevent the wife from proceeding with a s 79 application even if she is granted leave pursuant to s 44(3). Further the determination of s 44(3) only arises for consideration in the event of my determination as to the forum matter being erroneous.

20. Consequently I would dismiss her application for leave.

I certify that the preceding two hundred and eighty-one (281) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  13 March 2012