Vaden and Vaden
[2007] FMCAfam 744
•21 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VADEN & VADEN | [2007] FMCAfam744 |
| FAMILY LAW – Children and property proceedings – parties British citizens resident in Australia – wife wishes to return to United Kingdom with the children aged 13 and 11 – whether children should be independently represented – major asset of marriage residential property in the United Kingdom registered in wife’s sole name – property subject to caveat by wife’s mother on basis of claim of constructive trust – husband seeks order to be declared the trustee of property in order to challenge caveat – wife seeks to stay property aspects of proceedings – whether Australia inappropriate forum to hear property matter. |
| Family Law Act 1975 – ss.4, 39, 68L |
| Voth v Manildra Floor Mills Pty Ltd (1990) 185 CLR 571 Gilmore & Gilmore (1993) FLC 92-353 Re: K (1994) FLC 92-461 |
| Applicant: | MR VADEN |
| Respondent: | MS VADEN |
| File number: | ADC 183 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 7 September 2007 |
| Date of last submission: | 7 September 2007 |
| Delivered at: | Darwin |
| Delivered on: | 21 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Leeson |
| Solicitors for the Applicant: | Norman Waterhouse Lawyers |
| Respondent: | In person |
ORDERS
The children [F] born in 1994 and [G] born in 1995 be independently represented in these proceedings and to this end the Director of the Legal Services Commission of South Australia is requested to make appropriate arrangements for an Independent Children’s Lawyer to be appointed for the children pursuant to the provisions of section 68L of the Family Law Act 1975.
The husband file all affidavits of evidence on which he proposes to rely at the final hearing of the proceedings concerning arrangements for the care of the children by 22 December 2007.
The wife file and serve all affidavits of evidence on which she proposes to rely at the final hearing in respect of the children’s issues by 14 January 2008.
The further hearing of the parties’ application for settlement of matrimonial property issues be stayed pending the outcome of the children’s aspect of the proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Vaden & Vaden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 183 of 2007
| MR VADEN |
Applicant
And
| MS VADEN |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Vaden and Ms Vaden are both citizens of the United Kingdom. They married in the United Kingdom in 1994. Their two children [F] born in 1994 and [G] born in 1995 were both born in the United Kingdom.
On 10 February 2005 the family migrated to Australia and settled in Adelaide. Mr Vaden and Ms Vaden separated in May of 2006.
Ms Vaden is the registered owner of a property in the United Kingdom located at Property E. It was the family’s home before their emigration.
On 15 January 2007, Mr Vaden commenced proceedings in this Court seeking orders in respect of arrangements for the care of [F] and [G]. He also sought an order that the property at Property E be sold and the proceeds divided equally between the parties.
Ms Vaden opposes this latter aspect of the application. She seeks that the husband’s application be stayed, so far as the Property E property is concerned and a declaration made that the appropriate place for the resolution of the dispute regarding the property be a court in the United Kingdom. It is common ground between the parties that the English property is the most significant item of marital property and they have few items of value in Australia.
The parties are in dispute about the appropriate arrangements for the children’s care. The wife wishes to return to live in the United Kingdom with [F] and [G]. It is her position that the children miss their friends and relatives in England and wish to return to live there. It is also her position that she is deeply unhappy in this country and wants to live in the property in Property E. As a consequence she is opposed to any suggestion that the property be sold.
Orders were made by this Court on 1 May, with the consent of both parties, that until the case was finalised, the children should live with their mother and spend time with their father on each Thursday evening and on alternate weekends during term time and for half of each school holiday period.
It is the husband’s position that the wife is undermining his previously strong relationship with the children for her own ulterior purposes.
He seeks an arrangement whereby the children live with each of their parents for equal periods of time. The wife has said that if the Court makes such an order it would be untenable to her and reluctantly she would leave the children behind in Australia with their father and return to the United Kingdom.
The difficult issue of the proposed relocation of the children has been fixed for final hearing before the Court on 28, 29 and 30 January 2008. The parties have also agreed that a psychologist, Ms Roxanne Hewitt, should prepare a family assessment, which amongst other factors, will canvas the views of the children as to where they wish to live in future.
In the meantime, Ms Vaden, who is currently acting on her own behalf, has requested that [F] and [G] be represented independently of their parents in these proceedings, particularly so that their perspective and views can be placed before the Court. This issue and the question of whether this Court should embark on an adjudication of the dispute between the parties regarding the English property are the matters which the Court must determine at this time.
If the Court does determine that the Federal Magistrates’ Court in Adelaide is the appropriate forum for the determination of the dispute between the parties regarding the English property, the husband has raised another issue which he wishes to be resolved pending the final hearing.
He wishes the Court to make orders requiring the wife to transfer the English property to him so that he may hold it on trust for the benefit of both him and the wife. Effectively he wishes to be in a position to rent the property pending trial so that it may produce some income for both parties. He also wishes to be able to challenge a caveat the wife’s mother, Mrs P has placed on the title of the property. The basis of
Mrs P’s caveat is that she claims to have an equitable interest in it arising from an equitable trust.
Background
There are many issues of controversy between the parties regarding the Property E property. The husband asserts that the property was purchased jointly by him and the wife from the proceeds of sale of an earlier jointly owned property and he contributed in a direct financial sense to its acquisition. He values the property at £250,000.00 and states it was purchased in 2000. The property is apparently not subject to a mortgage.
The parties apparently owned three homes during their marriage.
The first was registered in the wife’s sole name because at the time, as she was working and the husband was not, she was able to gain finance and he was not.
The second home was registered in the parties’ joint names.
The husband asserts that he contributed to the mortgage on it. The wife asserts that she largely made all the necessary mortgage repayments as the husband was a student for much of the time.
The parties separated for a period of about nine months in 1999. Matrimonial property proceedings were begun but the parties reconciled in 2000. It is the coincidence of the parties’ separation and then reconciliation with the purchase of the Property E property which creates much of the controversy between the parties.
The husband asserts that the property was purchased largely with joint funds. The purchase price was around £115,000.00. Because of the profit made from the sale of the second home, he asserts that it was not necessary for the parties to borrow any additional funds.
The husband deposes that the property was registered in the wife’s sole name, at her request, because she wanted to feel “more secure in our reconciled marriage”. He did not demur from this request but did not do so from any actual or implied acknowledgement that the wife had any superior claim on the property to him.
The wife asserts that she received the Property E property by way of “my property settlement entitlement”. She acknowledges that this purported agreement was not formally recorded in any agreement. However it is her position that, under United Kingdom law, as the children were primarily in her care, she was likely to receive 80% of the parties’ assets. Accordingly it is the wife’s position that the husband has no claim on the Property E property.
It seems to be common ground between the parties that they and the children lived in the Property E property until they immigrated to Australia. The property was rented to the wife’s brother whilst the family was in Adelaide from early 2005.
In May of 2006 the family visited the United Kingdom for a holiday. This is when the parties separated and was a period of stress for all concerned. The wife and [F] and [G] returned to Australia after a holiday of three weeks. The husband remained in the UK for twelve weeks.
The husband lived in the Property E property for a time after the wife’s brother had apparently vacated it. The wife is aggrieved that this occurred without her apparent consent and because the husband did not pay her any rent. She also asserts that the husband accumulated bills which he did not pay and left the house in a state of disrepair.
Issues also apparently arose between the parties regarding the payment of child support for [F] and [G]. The wife says she wanted to rent out the property to provide for her and the children’s financial support but she was prevented by the husband’s occupation of it. From her perspective there was uncertainty about whether the husband would return to Australia and what her financial position would be if he did not return.
The husband says that at one stage he saw the Property E property advertised for rent on the internet at a rental of £850.00 per month. From his point of view a significant sum, particularly as since returning to Australia he has been living in rented accommodation and paying child support for the children, as well as having incurred significant legal fees in respect of these proceedings. As a result he finds himself in straightened financial circumstances. The issue of the potential rental of the Property E property has raised further issues of controversy between the parties.
It seems clear that the wife has had a preference for some time to return to live in the UK with the children and to re-occupy the Property E property, which she regards morally and legally as hers to do with as she wishes. Clearly this is the major area of controversy between the parties.
In such circumstances she has no wish to commit to a lease on the property. On the other hand the husband wishes to utilise the property’s income earning potential. He is aggrieved that the wife is sitting on what he regards as a jointly owned piece of property. Conciliation conferences have been ineffectual. This is hardly surprising whilst the vexed issue of relocation remains outstanding.
The wife asserts that it is complex and expensive process to let out rental properties in the United Kingdom. She has also been concerned at the possibility of squatters entering the premises. For that reason she has arranged for a relative to “house sit” the property. This has added to the husband’s sense of grievance, particularly as he was not consulted about the matter.
Other complications have also arisen. I have been provided with a copy of the property register in respect of the Property E property. It shows that Mrs P, the wife’s mother has entered a restriction on the title preventing any registration of any subsequent disposition of title without her consent. This seems to be equivalent to a caveat on title.
In addition the husband himself has registered a charge on the property claiming a “notice of home rights under the Family Law Act 1996.” The wife claims that it is doubtful that any lease could be registered on the title given these restrictions.
The husband is unaware of any proper basis on which Mrs P could claim to have an interest in the Property E property. He asserts that she and the wife are colluding together to defeat his claim in respect of the property and prevent this Court from dealing with his properly instituted application in this country. On the other hand, the wife asserts that the husband has instituted the property proceedings in Australia merely because he considers he will obtain a more favourable result in this country than in the United Kingdom.
The current value of the Property E property and the probable rental in will yield are also matters of controversy between the parties. An order was made by the court on 1 May 2007, with the consent of both parties, that they should all things necessary to instruct a chartered surveyor and valuer to value the property in both regards.
This valuation has not yet occurred. As the wife currently controls access to the property, the husband asserts that this state of affairs provides ample proof that she is resistant to the proceedings being finalised.
In addition, on 25 July 2007, I ordered that the wife provide Mrs P with copies of the relevant court documents in regards to the husband’s application in respect of the Property E property and advise her that this Court was considering whether it was jurisdictionally appropriate for it to determine the issue.
Mrs P has not sought to intervene in the proceedings before this Court. It seems clear that she is aware of them as she and the wife are on good terms. It seems that Mrs P plays some supervisory role in respect of the Property E property on her daughter’s behalf as she has a key to it.
I also directed the then solicitor for the wife provide a brief written submission regarding the jurisdictional issue and in particular how any orders made by this court, which stands at the base of the Federal Judicial System, could be enforced in the United Kingdom.
The husband was also given an opportunity to file an answering submission, if he chose to do so.
The wife has told me that she can no longer afford to retain a solicitor. Accordingly the submission has not been provided. The husband has not provided any written submission regarding the enforceability of any orders made by this Court in the United Kingdom.
However, by implication, it seems to be his position that orders of this Court can be enforced in the United Kingdom in some way otherwise he would not have brought his most recent application, which seeks that the wife forthwith transfer to him the Property E property so that he may hold it on trust for himself and the wife.
More importantly, in the short term, he wishes to hold the property so that he can give the house minder notice to quit and it can be rented at proper rental value for the mutual benefit of him and the wife. Further he wishes to be in a position, if appropriate, to be able to challenge
Mrs P’s caveat on the property. Presumably this would involve him taking some form of proceedings in the United Kingdom.
Although Mrs P has not formally sought to involve herself in these proceedings, I have been provided with an email from Mrs Emily Lake, her solicitor in the United Kingdom. This email advises that Mrs P claims that she has an interest in the Property E property because of a resulting or constructive trust.
It is Mrs Lake’s opinion that there are procedures available in the courts of the United Kingdom whereby judgements from foreign jurisdictions can be recognised and enforced in that country. However it is her further view that the proper forum to determine what interest Mrs P has in the Property E property is a court in the United Kingdom.
In the email, Mrs Lake writes as follows:
“You asked about Mrs P making a possible application to Court regarding the restriction she has entered at the Land Registry against the Property E property, and as far as we are aware if Mrs P brought proceedings it would be against her own daughter as the registered proprietor of the property. Mrs Vaden, so we are instructed, is likely to consent to any application made by her mother and whilst this does not oust the jurisdiction of the Australian Courts in our view whatever decision the Australian Court reaches it is not necessarily the end of the matter due to the restriction lodged by our client and the matter will need to be re-litigated in the English Courts, causing of course duplication of costs.”
It seems self-evident that the parties do not currently trust one another and have little capacity to work through the difficult issues – financial, emotional and in regards to care arrangements for the children – which have arisen between them in a consensual manner.
Legal principles to be applied
The Federal Magistrates Court has jurisdiction under the Family Law Act in respect of matrimonial causes. [Section 39(5AA)][1] Matrimonial cause includes proceedings between the parties to a marriage with respect to the property of those parties. [Section 4 (ca)]
[1] References in square brackets are to the relevant provisions of the Family Law Act 1975
Proceedings in respect of matrimonial causes may be instituted pursuant to the provisions of the Family Law Act in this Court if any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia. [Section 39(4)] Accordingly it is clear that both the parties, being both ordinarily resident in Australia and present in this country are entitled to commence proceedings in respect of the division of their marital property in the Federal Magistrates Court.
In Voth v Manildra Flour Mills Pty Ltd [2] the High Court held that a party who has properly instituted proceedings in Australia has a prima facie right to have the proceedings determined by an Australian court unless Australia is clearly the inappropriate jurisdiction. This is referred to as the clearly inappropriate forum test.
[2] Voth v Manildra Floor Mills Pty Ltd (1990) 185 CLR 571
Accordingly to be successful in her application to stay the property aspects of the husband’s application, the wife must demonstrate that the Federal Magistrates Court in Australia is clearly the inappropriate forum for the litigation of the matter.
In Voth the High Court approved the test formulated by Deane J in Oceanic Sun Line Special Shipping Co v Fay [3] that a stay of proceedings should not granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or vexatious in the sense of “productive of serious and unjustified trouble and harassment.”[4]
[3] Oceanic Sun Line Special Shipping Co v Fay (1988) 165 CLR 197
[4] Approved by the High Court in respect of matrimonial causes in Henry v Henry (1996) FLC 92-685 at 83,121
In Henry the High Court set out a number of criteria which should be considered in determining the question of whether an Australian court is clearly an inappropriate forum for the adjudication of issues between the parties to a marriage. The matters to be considered include the following:
·Whether the courts in the respective countries have jurisdiction with respect to the parties and their marriage;
·Whether the courts in the respective countries will recognise the other’s orders and decrees;
·In some cases, it may be necessary to consider the relative ease with which this can be done;
·Which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy;
·The order in which proceedings have been instituted, the stage which they have reached and the costs incurred;
·The connection of the parties and their marriage with each of the jurisdictions concerned and the issues on which relief might depend in those jurisdictions;
·Whether, having regard to the parties’ respective resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.[5]
[5] See Henry v Henry (supra) at 83,124
In Henry, the High Court pointed out that the list above is not exhaustive. Rather, “the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.”
Conclusions
There are as yet no parallel proceedings on foot in the United Kingdom. Whether there will be such proceedings in the near future is a matter of conjecture. I am told by Mrs Lake that, at this stage, Mrs P has no intention to bring such proceedings.
Both parties could obviously institute proceedings in England, in respect of the property issues, if they chose. If the husband is successful in his interim application, it seems that he would want to commence some proceedings, in the United Kingdom, against Mrs P in respect of the restriction on title she has lodged. Those proceedings cannot be commenced in Australia.
The basis of these proceedings would be the order he seeks this Court to make. I am unaware how easily this order could be registered and enforced in the United Kingdom. One would expect Ms Vaden to be affected by and so interested in this controversy between Mr Vaden and Mrs P. As Mrs Lake observes, there seem an inevitability that proceedings will be duplicated and any Australian proceedings potentially rendered otiose.
I have not been provided with any “book or pamphlet” containing any information regarding the possible enforcement of any orders made by this Court in the United Kingdom.[6] Accordingly, I do not think I can necessarily accept Mrs Lake’s assertion that orders in one jurisdiction can be recognised and enforced in the United Kingdom. Nor do I think I can take judicial notice of such a fact.
[6] See Evidence Act 1995 (Commonwealth) at section 174
I do not say this to quibble. I acknowledge that both England and Australia are common law countries with much history in common, particularly jurisprudential history. Australia and the United Kingdom are liberal, secular democracies with similar views regarding the rights of women and children.
However, this court is created by a fairly recent piece of legislation.
It occupies the lowest rung of the Federal judicial system. I have not been provided with any evidence as to how its orders could be enforced in the United Kingdom and what credence would be given to them.
This court is nominally characterised as a magistrates’ court, albeit a federal one. How a superior court in the United Kingdom would view an order from a magistrate purportedly exercising a jurisdiction in equity is something I was interested in examining. However, I have not been provided with any evidence in this regard.
Mr Vaden’s application to be declared a trustee of a property registered in another person’s name, in another country is, to my mind, an ambitious one. Particularly, as in part, he wishes to seek such an order possibly to institute proceedings against Mrs P in England.
I have not been provided with any evidence as to how such an order could be enforced or registered in the United Kingdom and whether it would have any effect. I confess to having considerable reservations in this regard.
In my view, the forum which can provide more effectively for the complete resolution of all the various issues between the parties, which necessarily must include the resolution of whether Mrs P has any interest in the Property E property, is a court in the United Kingdom.
The financial resources of the parties are not grossly disparate. Both are fluent in the English language and it would seem that both would be able to take part, on an equal footing, in proceedings both in Australia and the United Kingdom.
Both parties have a significant connection with the United Kingdom. Both are citizens of that country, where they were married and where they lived for the majority of that marriage. Their most significant marital asset, the Property E property, is in the United Kingdom.
Mr Vaden is aggrieved that he is being deprived of his proper share of the potential rental proceeds of the property. There is a dispute between the parties as to the whether the property can be rented. An issue I cannot resolve. How indeed the property could be rented in the United Kingdom, in the face of opposition from Ms Vaden, on the basis of an order from this court is unknown to me.
In my view Mr Vaden can be compensated for any financial loss at the ultimate conclusion of the property proceedings between him and
Ms Vaden. I appreciate that is likely to be cold comfort to him now.
Mr Vaden asserts that the restriction on title lodged by Mrs P is a pretext to defeat his proper claim to the property. At this stage, I have no way of assessing whether this is true or not. Accordingly, I cannot rule out the possibility that, regardless of the outcome of proceedings in this country, Mrs P will commence proceedings in the United Kingdom in respect of what she claims is her interest in the Property E property. Accordingly, in my view, there exists a very real risk that proceedings will be duplicated, at possible significant expense to the parties. Indeed, Mr Vaden’s most recent application envisages the potential for litigation in England.
In Gilmore[7] Fogarty J said as follows:
“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”. These adjectives are to be construed liberally, in the sense already referred to.”
[7] Gilmore & Gilmore (1993) FLC 92-353 at 79,728
The High Court discussed the relevance of proceedings in another jurisdiction in determining whether it was oppressive or vexatious to allow proceedings to continue in this country. As I have already indicated, there are as yet no such proceedings on foot in the United Kingdom, although their potential seems to be high.
In Henry the majority of the High Court considered that it was prima facie vexatious and oppressive, in the strict sense of those terms, to allow parallel proceedings to continue. The High Court said as follows:
“…the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or of the other should be seen as vexatious or oppressive within the “Voth” sense of those words.”[8]
[8] See Henry v Henry (supra) at 83,123
I have to consider whether the allowance of the current proceedings will be “oppressive in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”.
Mrs P is a character off-stage in these proceedings. It is unlikely she will come to the stage in Australia. It cannot be ruled out that she will commence proceedings in the United Kingdom, claiming an interest in the property at Property E. Accordingly, I have reached the view that to allow the property proceedings to continue in this country is likely to be the source of serious and unjustified trouble for all concerned because of the high likelihood of a duplication of proceedings.
It also seems to me that a court in the United Kingdom will provide a forum which will allow for the complete resolution of the parties’ controversy. I reach this conclusion because of Mrs P’s restriction on the title of the Property E property; Mr Vaden’s wish to challenge it; the controversy about the value of the property; and the parties’ close connection to the United Kingdom.
Accordingly, I have reached the conclusion that the property aspect of these proceedings should be stayed pending the outcome of the children’s issues in this court in the early part of next year. Once this aspect of the proceedings has been determined, it will be clear whether the wife and children will be returning to the United Kingdom. As was noted in Henry, it is sometimes appropriate to grant a temporary stay of local proceedings to allow for factual issues to be determined.
Should [F] and [G] be independently represented?
Pursuant to section 68L of the Family Law Act 1975 the Court may order that a child interests be independently represented by a lawyer if it considers that it is in the best interests of the child concerned to do so. In addition, pursuant to sub-section (5), the Court may order that the lawyer, who is representing a child’s interests, ascertain what are the child’s views on the matters to which the proceedings relate.
In this case, given [F] and [G]’s age, thirteen and a half and nearly twelve respectively, it is the wife’s position that the consideration of their best interests, particularly their views in which country they wish to live in future, dictates that their interests should be independently represented in these proceedings.
The Full Court of the Family Court in Re: K[9] provided guidelines for the appointment of independent lawyers to represent the interests of children in proceedings between their parents. Two of the guidelines are germane in these proceedings. They are firstly cases where one party proposes that the children concerned will be permanently removed from the jurisdiction to such an extent that it will restrict the other parent’s access to the child; and secondly cases in which children of mature years are reportedly expressing strong views, which may involve long-standing custodial arrangements being changed or the denial of a child’s entitlement to have a relationship with one of his parents.
[9] Re: K (1994) FLC 92-461
Cases involving the relocation of children are invariably difficult. Cases involving international relocation even more so. It is also the case that there is a significant level of conflict between the parties, although I would not describe it as intractable at this stage.
Given the ages of the children concerned in this case and the significant consequences which must inevitably follow if they go to live in the United Kingdom with their mother or they remain living in Australia and Ms Vaden elects to return to the United Kingdom, I consider that it is likely to be in the children’s best interests that they be independently represented in these proceedings.
Clearly the children are of an age when they are likely to have a view about the difficult issues confronting the court and I would expect that both have sufficient maturity and insight to express those views.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C White
Date: 21 September 2007
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