Yuan and Tan

[2016] FamCA 1018

FAMILY COURT OF AUSTRALIA

YUAN & TAN [2016] FamCA 1018

FAMILY LAW – PROPERTY – FORUM – Where the wife initiated family law proceedings in Australia and the husband subsequently initiated proceedings in Malaysia – Where the parties are not Australian citizens –  Where the husband and the parties’ child live in Malaysia – Where it is probable that there would be a duplication of litigation should the Australian proceedings continue  – Where most of the parties’ assets and liabilities are in Malaysia – Where the Malaysian proceedings are likely to be finalised earlier – Where the Court finds Australia is a “clearly inappropriate forum” – Order made that the Australian proceedings be permanently stayed.

Family Law Act 1975 (Cth)

Henry v Henry (1996) 185 CLR 571
Voth v Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 583

APPLICANT: Ms Yuan

RESPONDENT: Mr Tan

FILE NUMBER: SYC 2791 of 2016

DATE DELIVERED: 28 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 8 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dart

SOLICITOR FOR THE APPLICANT: EH Tebbutt & Sons

COUNSEL FOR THE RESPONDENT: Ms Clifford

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. The proceedings numbered SYC2791/2016 in the Family Court of Australia are permanently stayed.

2. The undertaking given to the Court by the husband on 8 August 2016 is discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2791  of 2016

Ms Yuan

Applicant

And

Mr Tan

Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant wife, Ms Yuan, and the respondent husband,

   
   

   Mr Tan are parties to litigation in both Australia and Malaysia arising from the breakdown of their marriage.  The wife commenced the Australian proceedings by way of an Initiating Application filed on 6 May 2016.  On 27 July 2016 the wife filed an Amended Initiating Application, by which she sought the following orders:

   Parenting

   1.That the parties have shared parental responsibility for the child of the marriage, namely [B] born … 2012 ("the child").

   2.The wife is to consult with the husband in writing in respect to any long term decisions relating to the child's current and future education, medical (non-urgent) issues, religious issues, change of name and any other long term decisions regarding the child.  If the wife does not receive a response from the husband within 21 days from the date of posting her notification to the husband, then the wife is solely responsible for making the decision regarding the long term issues about which she has consulted the husband.

   3.That the child live with the wife.

   4.That the child spend time with and communicate with the husband as follows:-

   (a)In the event that the husband is living overseas or more than 50km from the child's place of residence with the wife:-

   (i)The husband will be responsible for the organisation and cost of the child travelling to and from his residence with the wife.

   (ii)Once the child commences formal schooling, the child's travel to spend time with the husband will only take place during school holidays unless otherwise agreed.

   (iii)Apart from any overseas travel by the child to and from the husband, the wife will retain the child's passport/s in her possession.

   (b)In the event that the husband is living within 50km of the child's place of residence with the wife, the child spend time with the husband as agreed between the parties;

   (c)Skype and telephone communication with the husband as agreed between the parties.

   5.Each party shall give the other at least two (2) weeks' notice of any intention to move from their current residential address.

   6.Each party shall notify the other party of any change to the following details within three (3) days of the change taking place:-

   (a)The party's residential address;

   (b)The party's landline or mobile telephone number;

   (c)The party's email address.

   7.Each party as soon as practicable telephone the other party upon the happening of any of the following:-

   (a)The child becoming seriously ill;

   (b)The child being hospitalised;

   (c)The child being involved in an accident requiring medical attention.

   8.Each party be restrained from denigrating the other party in the presence or hearing of the child and that each party not allow any other person to do so.

   Property

   9.That the husband forthwith:-

   (a)Pay such amount as is required to discharge the mortgage secured on the wife's property situated at and known as
   [C Street, City D], Malaysia ("the Malaysian property").

   (b)Do all acts and things and sign all documents necessary at his expense to procure and register a discharge of mortgage and a release from liability in respect to the Malaysia property.

   (c)Do all acts and things and sign all documents necessary at his expense to notify the tenant/s of the Malaysian property that the rent for the Malaysian property is to be paid to the wife or as directed by her.

   10.That the wife receive seventy percent (70%) of the asset pool by way of property adjustment pursuant to s.79 of the Family Law Act.

   11.That the wife have liberty to amend her Application after the husband has made full financial disclosure.

   12.That the husband be permanently restrained from continuing the court proceedings filed by him in Malaysia on 8 July 2016 or otherwise commencing proceedings in Malaysia in respect to the parties' marriage, divorce, property or parenting in respect to the child [B] born … 2012.

2. The husband filed a Response to Initiating Application on 26 July 2016, by which he sought the following orders:

   1.The proceedings SYC 2791/2016 (including all extant applications) in the Family Court of Australia be permanently stayed.

   2.That the Applicant Wife pay the Respondent Husband's costs of and incidental to this Application.

3. At the hearing before me on 8 September 2016 counsel for the parties agreed in writing to the following facts:

   IT IS AGREED THAT:

   1.There are proceedings pending in the High Court of Malaysia filed on behalf of the husband on 5/8/16 seeking:

   (a)       parenting orders;  and

   (b)leave to proceed with petition for divorce and thereafter property orders.

Background

1. The wife was born in 1983 in Malaysia and is presently aged 33 years.  The husband was born in Malaysia in 1983 and is also 33 years of age.  The parties began a relationship in Malaysia in 2007.

2. The husband moved to Australia on a Section 457 working visa on approximately 23 March 2008.  The wife came to Australia on 3 July 2008 and the parties then commenced cohabitation.  They married in 2010 and separated on 2 August 2015.

3. Both of the parties are Malaysian citizens and permanent residents of Australia.  They each hold only a Malaysian passport.  They have one child, B, who was born in 2012 and is currently four years of age.  The child is a dual citizen of Malaysia and Australia.

4. On 5 August 2015 the husband took the child to Malaysia.  The child has lived since that time in a home occupied by the paternal grandparents and the husband's brother and his wife.  The husband has also lived in this home, other than for the period from 5 September 2015 until 17 January 2016 when he was in Australia.  The child attends a kindergarten close to this home.

5. The husband maintained that the wife consented to his taking the child to Malaysia shortly after the parties' separation.  She agreed that she signed a document which read as follows:

   I [Ms Yuan] consent my husband [Mr Tan] to take our son [B] back to Malaysia on 5^th of August Wednesday.  I would have rights to visit my son [the child] anytime.

(signed)	(signed)
[Mr Tan]	[Ms Yuan]
Date: 3 August 2015	Date:  3 Aug 2015
Time:  1:06 AM	Time:  1:01 AM

1. The wife signed this document after the parties had argued for several hours, after the husband confronted her over an extramarital workplace affair.  The wife contended that it was always her intention for the child to live in Malaysia as a temporary measure, while she and the husband resolved their issues.  She claimed that her consent was induced partly by the fact that the husband slapped her on the face and pushed her in the presence of the child during this argument.

2. At the commencement of cohabitation each of the parties owned real estate, bank savings, shares and superannuation in Malaysia.  They both had education loans and credit card debts in that country.  The husband was employed at Company E and earned approximately $98,900 per annum.

3. At the commencement of cohabitation the wife was employed in a professional occupation.  She took maternity leave from July 2012 and resumed full-time employment, as a manager, in December 2013.

4. Between July 2008 and late 2012 the parties lived in rented accommodation in Sydney.  In August 2012 they purchased the property F Street, Suburb G in the sole name of the husband for $640,000.  They borrowed $512,000 from HSBC and the balance of the purchase money came from joint savings, together with an advance of $70,000 from the husband's father.

5. At the time of the purchase of the Suburb G property, the parties established an offset account in the sole name of the husband.  They both deposited their salaries into this account and these funds were used to service the mortgage and meet day-to-day living expenses.  The wife contended that the husband withdrew all of the funds in this account after the separation.  She alleged that the balance at that time was approximately $130,000.

6. After the separation the Suburb G property was leased and the wife has lived in rented accommodation in Sydney.  It was common ground that the wife received a sum of about $5,000 to assist her in securing her rental property.  She maintained that this sum came from the parties' joint savings.

7. As noted, the husband and the child have lived in Malaysia since the parties' separation.  The wife continued to live and work in Sydney and travelled to Malaysia in January 2016.  She saw the child on three occasions, each of which involved one overnight stay, during January 2016.  The husband contended that the wife made no request for additional time with the child, whereas she maintained that he created difficulties in that regard.

8. In November 2015 the husband instructed a Malaysian lawyer to file a joint petition for divorce in that country.  The wife contended that she considered joining in this application but, ultimately, decided not to do so.  As noted, the husband commenced proceedings in the High Court of Malaysia on 5 August 2016.  The wife has instructed lawyers in Malaysia.

9. Each of the parties has instructed solicitors in Australia.  On 26 February 2016 the husband's Australian lawyers sent to the wife's solicitor an Application for Consent Orders.  This proposal was rejected by the wife and her Initiating Application was filed on 6 May 2016.  The husband's Australian lawyers confirmed on 6 May 2016 that they held instructions to accept service of documents filed in the wife's Australian proceedings on his behalf.

Consideration

1. In Voth v Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538 the High Court held that a party who has properly instituted proceedings in Australia has a prima facie right to have those proceedings determined by an Australian court unless Australia is a "clearly inappropriate forum". The High Court held that the mere fact that a tribunal in some other country would be a more appropriate or convenient forum for the particular proceedings does not necessarily mean that the local court is a clearly inappropriate forum.

2. In Henry v Henry (1996) 185 CLR 571 (“Henry”) the High Court held that the "clearly inappropriate forum" test is to be applied in relation to proceedings in the Family Court of Australia and a foreign jurisdiction. Dawson, Gaudron, McHugh and Gummow JJ said at 587:

   In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be 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".  It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, "the discussion by Lord Goff in Spiliada of relevant 'connecting factors' and 'a legitimate personal or juridical advantage' provides valuable assistance".  In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being "where the case may be tried 'suitably for the interests of all the parties and for the ends of justice'".

3. Their Honours considered the matters which might properly be taken into account in this exercise and observed as follows at 592-593:

   Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written.  To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage.  And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question.  However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees.  If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue.  However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done.  As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy.

   Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred.  It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions.  Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.  The list is not exhaustive.  Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.

4. A single expert, Ms H, swore an affidavit on 7 September 2016 to which she annexed her curriculum vitae, a joint letter of instruction, her report dated 8 August 2016, questions from the wife's lawyers and her response thereto.  Ms H appears to be an eminently well qualified expert, who prepared a comprehensive and thorough report.

5. The single expert addressed the issue of enforceability of Australian orders in Malaysia.  She opined as follows:

   On 27^th June 1993, the Malaysian Reciprocal Enforcement of Judgements Act 1958 was amended to delete Australia from the list of countries in respect of which Malaysia would accord recognition and enforcement of their money judgements (e.g. maintenance orders).  In other words, Malaysia no longer recognises and would not register, for execution purposes, an Australian money judgement.  Besides the aforesaid, there is no reciprocal enforcement legislation to provide for the enforcement of foreign financial orders.  Hence, to enforce such foreign orders, parties have to commence a civil action based on the foreign judgement.

   However, in respect of maintenance, the MOFE provides the mechanism for a certified copy of the maintenance order made in a reciprocating country to be registered in the appropriate Malaysian local court by the Minister charged with responsibility for the judiciary.  Once registered, the maintenance order will be of the same force and effect as if it had been originally obtained in the local court, and is enforceable in Malaysia.

   Similarly, upon proof to the Malaysian Court that the person against whom the order was made is resident in a reciprocating country, the court then sends a certified copy of the order to the Minister charged with responsibility for foreign affairs for transmission to the appropriate authority in the reciprocating country.

   The MOFE also provides the court with the discretion to make provisional orders of maintenance against persons resident in reciprocating countries, even in the absence of that person.  This provisional order will have no effect unless and until confirmed by a competent court in the reciprocating country by a summons being issued, calling upon the person to show cause why that order should not be confirmed.  Similarly, a local court can enforce provisional orders from reciprocating countries against persons resident in Malaysia.

   Australia remains a reciprocating country under the MOFE in relation to the Orders made by the following states:-

   1.        South Australia

   2.        New South Wales

   3.        Victoria

   4.        Western Australia

   5.        Capital Territory of Australia

   6.        Northern Territory of Australia

   7.        Queensland

   8.        Tasmania

   9.        Norfolk Island.

6. The wife seeks no "maintenance order" in her Australian proceedings.  She seeks orders in relation to parenting and alteration of property interests.  Inter alia the wife seeks orders in respect of her real property in Malaysia, including a requirement that the husband discharge the mortgage on its title.  She seeks, at this stage, no specific orders in relation to assets of the parties in Australia.  Her application reads in part as follows:

   10.That the wife receive seventy percent (70%) of the asset pool by way of property adjustment pursuant to s79 of the Family Law Act.

   11.That the wife have liberty to amend her Application after the husband has made full financial disclosure.

7. It thus appears that there is no guarantee that Malaysian courts would enforce orders for alteration of property interests made by the Family Court of Australia.  Any prospect of enforcement would require "[commencement] of a civil action based on the foreign judgment."

8. Ms H gave expert evidence that the Malaysian courts are not bound to recognise an Australian parenting order.  She opined as follows:

   (2)Malaysia is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980.  Foreign custody orders are not accorded automatic recognition.  Once a child is physically within the jurisdiction the Malaysian Court has jurisdiction over the child and is entitled to enter into the merits afresh and form an independent judgement of its own on custody.  Although a Malaysian Court will take into consideration a custody order of a foreign court of competent jurisdiction, it is not bound to give effect to it if this would not be for the child's benefit.  The Malaysian Court will itself consider the welfare and interests of the child and that is the paramount consideration to which all others yield, including the order of a court of competent jurisdiction.

1. It thus appears that orders of the Family Court of Australia in relation to parenting and alteration of property interests may not finalise the issues between the parties.  A separate Malaysian civil action would be necessary to enforce Australian orders for alteration of property interests and there may well be fresh proceedings in relation to the parties' child.

2. There was no evidence as to the enforceability of Malaysian orders in Australia.  No submissions were directed to that issue.

3. It seems to me that, as a matter of law, the courts of both Australia and Malaysia could deal with all of the issues in dispute between the parties.  The single expert reported as follows:

   Q3What is the likelihood of the Malaysian courts making Orders in respect of property and assets that are situated in Australia?

   [A]If sufficient details of Australian properties and assets (which constitute matrimonial assets) are given to the Malaysian Courts, and there is evidence of the contributions made by each party to the acquisition of those assets, there is nothing in law to prevent the Malaysian courts from making orders in relation to those assets between the parties.  It is preferable that the orders be made in money's worth as opposed to an order in relation to transfer of the asset bearing in mind the difficulty of enforcement.

4. In my view the Family Court of Australia has jurisdiction to make parenting orders in relation to the parties' son the child pursuant to section 69E, which provides as follows:

   SECTION 69E  CHILD OR PARENT TO BE PRESENT IN AUSTRALIA ETC.

   69E(1)  Proceedings may be instituted under this Act in relation to a child only if:

   (a)the child is present in Australia on the relevant day (as defined in subsection (2)); or

   (b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or

   (c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

   (d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the relevant day; or

   (e)it would be in accordance with a treaty or arrangement in force between Australia and on overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

   69E(2)  In this section:

   relevant day, in relation to proceedings, means:

   (a)if the application instituting the proceedings is filed in a court – the day on which the application is filed; or

   (b)in any other case – the day on which the application instituting the proceedings is made.

   Note:  Division 4 of Part XIIIAA (International protection of children) has effect despite this section.

   B is an Australian citizen and the wife is ordinarily resident in this country.

5. It appears to me, however, that finalisation of the issues in Australia will entail considerably greater expense and inconvenience than would be the case in Malaysia.  With the exception of the Suburb G property and the wife's bank accounts and chattels, all of the parties' assets, superannuation and liabilities are located in Malaysia.  Valuation of these assets and quantification of such liabilities must necessarily be undertaken by persons and institutions in Malaysia.  Additionally all of the witnesses in the parenting proceedings, with the exception of the wife and a probable single expert, are located in Malaysia.  These persons would be required to travel to and be accommodated in Australia during a trial in this country.

6. An issue raised by the wife in her affidavit of 5 May 2016 provides a specific example of likely additional expense and inconvenience of litigation in Australia rather than Malaysia.  The wife deposed:

   20.In late December 2012, the husband and his father wished to use my property as security to obtain a credit facility to purchase other assets.  I agreed to this but I do not recall signing any bank documents regarding this.  I recall at the time the bank valued the property at $AUD190,000 and the mortgage at that time was $AUD69,000.  The husband borrowed a further $AUD101,000 against my property.  I do not know what the husband did with the borrowed monies except I recall from conversations in 2013 and 2014 when the husband informed me that his family and himself had used the money to buy or finance other assets.  When the husband borrowed against my property, he increased the rental income.  From December 2012, the rental income was paid to the husband.  He continues to receive the rent on the property.  As far as I am aware, the husband's brother, [Mr I], manages the property.

   The evidence necessary to address this issue will be available only from witnesses and financial institutions located in Malaysia.

7. The single expert opined that the Malaysian proceedings would be finalised by mid to late 2017.  Regrettably, experience demonstrates that a final resolution of the issues in the Family Court of Australia would take a considerably longer period.

8. The single expert stated that parenting disputes are resolved in Malaysia on the basis that the best interests of the child are the paramount consideration.  She reported as follows:

   Under the LRA, a parent or any relative of a child may apply for the custody, care and control of a child.  In deciding custody, care and control.

   (a)the paramount consideration shall be the welfare of the child

   (b)subject to the abovesaid welfare consideration, the Court shall have regard to the wishes of the parents of the child; and

   (c)to the wishes of the child, where he is of an age to express an independent opinion.  In the present case, the child, who is only 4 years old, will not be considered a child able to express an independent opinion.

   (d)there is rebuttable presumption that it is for the good of a child below the age of seven years to be with his mother, but in deciding whether that presumption applies in a particular case, the Court shall have regard to the undesirability of disturbing the life of a child by a change of custody.

9. The single expert addressed the question of the impact of the wife's position in parenting proceedings in Malaysia of a potential finding of adultery on her part in a divorce application.  She opined as follows:

   Any finding of fact as regards behaviour may be taken into account in parenting matters if such behaviour impacts upon the spouse's ability to care for the child/children.

   For example, even where there is a finding of adultery on the part of the mother, it does not ipso facto disqualify her from having custody of her children.  The Courts have held that a "wife's failings as a wife have not made her so bad a mother as to displace the greater need that young children have for the mother rather than the father and her ability to satisfy that "need".

10. The single expert set out the principles which govern alteration of property interests in the courts of Malaysia.  She opined as follows:

    The Malaysian Court has power to order the division between the parties of any assets acquired by them during the marriage or the sale of any such assets and the division of the proceeds of sale upon the grant of a decree of divorce or judicial separation.  In other words, applications for division of matrimonial assets can only be made in Divorce or Judicial Separation proceedings and orders made contingent upon a decree or divorce or judicial separation being pronounced.

    The principles governing the division of the assets or the proceeds of sale are as follows.

    Under the LRA, the court has power to order the division between the parties of any assets acquired by them during the marriage by sole or joint efforts, or to order the sale of any such assets and the division between the parties of the proceeds of sale. (Section 76, Law Reform (Marriage & Divorce) Act 1976 (LRA))

    Where the asset has been acquired by joint efforts the court considers:

    ·the extent of the contributions made by each party in money, property or work towards the acquiring of the assets.

    ·any debts owing by either party which were contracted for their joint benefit.

    ·the needs of the minor children.

    Subject to those factors, the court generally aims at equality of division.

    Where the asset has been acquired by the sole effort of one party, the court considers:

    ·the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family.

    ·the needs of the minor children.

    Subject to those considerations, the court can divide the assets or the proceeds of sale in such proportions as the court thinks reasonable, but in any case the party by whose effort the assets were acquired will receive a greater proportion.  There is no automatic percentage applicable.  The Court endeavours to reach a fair and just outcome in each case.

    Generally, when there is only indirect contribution e.g. a home-maker spouse, the Court awards to that party 20-30 percent of the nett value of the matrimonial assets.

    The other principles governing division of matrimonial assets are:-

    (a)The Court does not do an accounting of all assets acquired or improved during the marriage and the income from those assets, nor a determination of who had benefitted more or less and then award a shortfall to the party found to have benefitted less.  The function of the Court is to make a fair and equitable division of the matrimonial assets that exist at the time of the divorce, taking into account the factors set out in S 76 LRA.

    (b)During a marriage, the matrimonial home, even if acquired solely by one party before the marriage, and everything that is put into it by either spouse is considered a matrimonial asset, including the purchase of pots and pans, kitchen, cabinets, furniture, payment of maid's salary and keeping, maintaining and servicing the house as a going concern.  The increase in value of the house constitutes an asset acquired by the parties' joint efforts.

    (c)Assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts.

    (Emphasis in original)

11. Having regard to the evidence of the single expert, I am not satisfied that the wife would derive any juridical advantage from a finalisation of issues between the parties in Australia rather than Malaysia.  Essentially, there was no submission on behalf of the wife to the effect that any such juridical advantage would flow to her if the proceedings are concluded in Australia.

12. Having regard to all of these considerations, I conclude that Australia is a "clearly inappropriate forum" for the purposes of Henry.  I summarise my reasons for this conclusion as follows:

    ·Australian orders for alteration of property interests would not be enforced per se in Malaysia, with a civil action being necessary for that purpose;

    ·a duplication of parenting litigation would be probable, if not likely, as the courts of Malaysia are empowered to consider afresh issues in relation to the child the child after a determination by an Australian court;

    ·most of the assets and liabilities of the parties are located in Malaysia, thus valuations necessarily would be carried out by experts in that country;

    ·most of the potential witnesses are located in Malaysia and would be required to travel to and be accommodated in Australia during a final hearing in this country;

    ·both of the parties speak Malaysian and accordingly would have no language difficulties with litigation in that country;

    ·the costs of litigation in Australia are likely to exceed those incurred in Malaysia, having regard to the necessity for most of the witnesses to travel to this jurisdiction; and

    ·issues between the parties are highly likely to be finalised in Malaysia at a much earlier time than would be the case in Australia.

13. For these reasons, I will accede to the application of the husband.  He will be discharged from his undertaking of 8 August 2016.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 28 November 2016.

Associate: 

Date:  28 November 2016