Zhu & Xie
[2021] FedCFamC1F 86
•22 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zhu & Xie [2021] FedCFamC1F 86
File number(s): DGC 920 of 2021 Judgment of: MCEVOY J Date of judgment: 22 September 2021 Catchwords: FAMILY LAW – JURISDICTION – forum non conveniens – where the wife seeks that the husband’s initiating application be set aside or otherwise stayed on forum non conveniens grounds – where a New Zealand Property (Relationships) Act agreement was entered into between the parties in 2013 which the wife says is binding – where the husband says that this Court is not a clearly inappropriate forum – where it would be unduly oppressive and burdensome to compel the husband to litigate in New Zealand – where this Court held not to be a clearly inappropriate forum – where the wife’s application is dismissed Legislation: Family Law Act 1975 (Cth) ss 79
Property (Relationships) Act 1976 (New Zealand) ss 21, 21F
Trans-Tasman Proceedings Act 2010 (Cth) ss 17Cases cited: Henry & Henry (1996) 185 CLR 571
In theMarriage of Gilmore (1993) 16 Fam LR 285
Navarro & Jurado (2010) 44 Fam LR 310
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Davies, Martin et al, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths Australia , 10th edition, 2020)Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 22 September 2021 Place: Melbourne Counsel for the Applicant: Mr Duckett Solicitor for the Applicant: CCS Lawyers Counsel for the Respondent: Mr Mort Solicitor for the Respondent: O’Sullivan & Ruffilli Barristers & Solicitors ORDERS
DGC 920 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZHU
Applicant
AND: MS XIE
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
22 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The wife’s application that the husband’s initiating application of 8 March 2021 be set aside or otherwise stayed on forum non conveniens grounds is dismissed.
IT IS ORDERED BY CONSENT THAT:
2.The parties attend a private mediation in February 2022 to be mediated by Ms B. The wife to pay for such mediation at first instance and such expenditure to be characterised at Trial.
3.The husband’s applications for spousal maintenance and an interim property dispersal be listed before Senior Registrar Hoult for an interim defended hearing at 10.00am on 7 March 2022.
4.The costs of the wife’s Application to stay these proceedings be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zhu & Xie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
MCEVOY J:
Before the Court is an application by the wife that the husband’s initiating application of 8 March 2021 be set aside or otherwise stayed on forum non conveniens grounds. The wife relies on a case outline, dated 17 September 2021, and the husband relies on a case outline, dated 14 September 2021. They both rely on affidavits as filed on this application. Obviously enough, the husband resists the wife’s forum non conveniens stay application. Various other matters divide the parties, including spousal maintenance and interim property settlement, but they were not pursued today.
In support of her forum non conveniens application the wife relies principally on a New Zealand Property (Relationships) Act agreement, dated 25 July 2013. This agreement was apparently executed in New Zealand and witnessed by lawyers there, pursuant to section 21 of the Property (Relationships) Act 1976 (NZ). It is said by the wife to comply with section 21F of that Act, insofar as it is in writing and signed by both parties. It is apparent that each party had legal advice prior to the execution of the agreement. The parties’ signatures were witnessed respectively by a lawyer, and the lawyers witnessing the parties’ respective signatures certified prior to the parties signing the agreement that he had explained the effect and implications of it.
The agreement is said by the wife to be binding. She maintains that it clearly sets out each party’s separate property, which includes the wife’s trust interests, her shares in D Limited, several properties in New Zealand and some in Victoria, her bank accounts and her superannuation. She points to provisions of the agreement which she says are in specific terms, namely that the husband shall not have any entitlement to nor make any claim against the property listed in schedule A at any time.
The wife notes that the agreement confirms that the husband’s interests consisted of C Street, Suburb F, his bank accounts and his superannuation. She observes that the only joint assets mentioned in schedule C of the agreement were bank accounts in joint names or such assets or chattels jointly acquired.
The wife submits that akin to lump sum/periodic spousal/transfer of property, the agreement provides that neither party make a claim against the other in respect of the other party’s income or living standards being higher than the other party, and that the agreement makes clear that the parties intended it to be binding on them both within and outside New Zealand in respect of all property within and outside New Zealand. The wife also submits that the agreement provides that no party shall commence proceedings in any Court unless the dispute has been referred to dispute resolution and is not resolved.
The wife points also to the fact that on 14 January 2020 the husband executed a “refreshed” property agreement in the form of a statement declaring that he abides by the original agreement and will not contest it at any time in any country. It is said by the husband in response that a document of that kind, written in his own handwriting as a layman without any legal advice, is not a document to which the Court should pay much attention. In any event, the wife contends that in instituting the husband’s section 79 application in this Court, in the face of the agreement, the husband shows a lack of bona fides. The wife abandoned, during the argument, a claim that the husband’s position is demonstrative of an abuse of process.
The husband submits, as would seem to be the case, that both parties are residents of Australia and have been since about 2012. He notes that the assets sought to be divided are predominantly located in Australia and that a company, D Property (Vic) Pty Ltd (“the company”) and G Trust (“the trust”) and the wife own most of the Australian properties. Both the company and the trust are incorporated, established, operated and located in Australia.
The husband accepts that there are some properties located in New Zealand, and that there are certain trusts in New Zealand of which the wife is the appointor and the trustee. The husband submits, as is the case, that there have been no proceedings commenced by the wife in New Zealand, even though she has had his initiating application since March 2021.
The parties agree as to the principles of law which apply. They are as laid down by the High Court of Australia in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”), to the effect that for an application on forum non conveniens grounds to succeed, it must be shown that the Australian court is a clearly inappropriate forum. This test has been affirmed subsequently in other decisions of the High Court, to some of which the parties have referred. The test has been applied on innumerable occasions by Australian courts since 1990. The wife does not seek to rely on section 17 of the Trans-Tasman Proceedings Act 2010 (Cth).
As is well-established (see also Navarro & Jurado (2010) 44 Fam LR 310 at [29]), the focus of attention must be upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum. As the plurality in Voth and the majority in Henry & Henry (1996) 185 CLR 571 stressed, Australian courts should not concern themselves with an assessment of the comparative procedural or other claims of the foreign forum.
The clearly inappropriate forum test requires a consideration of whether a continuation of the proceedings could be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious in the sense of being productive of serious and unjustifiable trouble and harassment. As the learned authors of the present edition of Nygh’s Conflict of Laws In Australia have observed:[1]
[1] Davis, Martin et al, Nygh’s Conflict of Laws In Australia (LexisNexis Butterworths Australia, 10th ed, 2020) 202-203
It follows that the test to be applied in Australian courts derives partly from what was said by Deane J in Oceanic Sun [Line Special Shipping Company Inc v Fay [1988] HCA 32], partly from what was said by Lord Goff of Spiliada [Maritime Corporation v Cansulex Ltd [1986] 3 All ER 843], (although not the ‘more appropriate forum’ test), and partly from the statements made by the majority in Voth. The following is an attempt to put these various elements together.
1) The plaintiff prima facie has the right to have the chosen forum exercise the jurisdiction regularly invoked by the plaintiff, either through service of the defendant within the forum or outside, unless the forum is satisfied that it is clearly inappropriate. But not too much weight should be placed on this right. It may well be significant that there is a ‘finely balanced contest’. In other cases, it may have little bearing on the matter.
2) The onus of establishing that satisfaction lays upon the party (normally the defendant) who seeks a stay or the setting aside of service on that ground, except where the plaintiff was required to obtain prior leave to serve the defendant outside the jurisdiction.
3) The following factors are relevant in considering whether the forum is clearly inappropriate. None is conclusive by itself:
a. Any significant consideration between the forum selected and the subject matter of the action and/or the parties, such as the domiciles of the parties, their places of business and the place where the relevant transaction occurred, or the subject matter of the suit is situated, and other factors affecting convenience or expense, such as the availability of witnesses.
b. Any legitimate and substantial juridical advantage to the plaintiff, such as greater recovery, more favourable limitation period, better ancillary procedures, or assets within the jurisdiction against which any judgement can be enforced.
c. Whether the law of the forum will supply the substantive law to be applied in the resolution of the subject case or whether the matter is governed by foreign law.
(Footnotes omitted)
This latter fact, is not significant in matrimonial property disputes where the law of whatever forum is selected will be applied (see In theMarriage of Gilmore (1993) 16 Fam LR 285 at 292).
In the circumstances which present in this case I do not consider that the wife has discharged her onus of showing that this Court is a clearly inappropriate forum. Indeed, in my assessment, this Court is not a clearly inappropriate forum. Although the wife has substantial links with New Zealand, she is an Australian resident and both parties have apparently been Australian residents since 2012. As I have mentioned, the assets the subject of the husband’s application are substantially located in Australia. Although there may be a forum for the resolution of the dispute in New Zealand, the wife has not sought to avail herself of this forum, nor can it be said that the wife will be prevented in Australia from relying on the agreement. As counsel for the husband conceded, it will be open to her to refer to it in the proceeding in this Court as a factor to be taken into account in making whatever alteration of property interest, if any, is thought appropriate for the purposes of section 79 of the Family Law Act 1975 (Cth).
Further, I accept that in all of the circumstances it would be unduly oppressive and burdensome to compel the husband to litigate in New Zealand. In my assessment it would not be in the interests of justice effectively to force him to do this. I will not, therefore, order that the husband’s proceeding in this Court be dismissed or otherwise stayed. The wife’s forum non conveniens application will be dismissed.
I will hear the parties in relation to the further conduct of the matter.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Associate:
Dated: 22 September 2021
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