· 2021-10-14T05:06:09+0000 · 677 posts

Parties in Dispute Over Proper Forum for Divorce Proceedings

Penhall & Gibbens [2021] FedCFamC1F 6 (2 September 2021)

The parties intend to divorce. However, they are in dispute as to the proper forums to divorce proceedings. The husband sought orders in aid of the anti-suit injunctions requiring the wife to take steps to bring the French proceedings to an end. The Court, in deciding whether or not Australia is a clearly inappropriate forum, relied upon affidavits presented by the parties.

Facts:

The respondent wife was previously restrained from conducting property or child related proceedings in France. Although she had also commenced divorce proceedings in France, she was not at that stage restrained from prosecuting those on the basis that there were no divorce proceedings on foot in Australia. The applicant husband has commenced divorce proceedings, filing an Application for Divorce on 22 June 2021. The wife expressed her objection to jurisdiction, on the basis that there are divorce proceedings on foot in France.

The wife asserted that orders from Australia would require translation into French, and would result in a slower uptake on the part of any bureaucracy dealing with the fact of the divorce. She observed that she had engaged lawyers in France and incurred expenses. The wife observed that she commenced the divorce proceedings well in advance of the husband commencing proceedings in Australia, and that he commenced his proceedings when aware of the proceedings being conducted in France.

Issue:

Whether or not Australia is a clearly inappropriate forum.

Applicable law:

Henry & Henry [1996] HCA 51; (1996) 185 CLR 571 - observed that the prima facie right is limited in effect, and that the onus remains on the party seeking to establish Australia as being a forum that is clearly inappropriate.

Navarro & Jurado [2010] FamCAFC 210; (2010) 247 FLR 374 - where the issue of forum is not a task that can be equated to a comparison of the relative merits of the competing forums.

Oceanic Sun Line Special Shipping Co Inc v Fay[1988] HCA 32; (1988) 165 CLR 197 - provided that the determination of whether Australia is an inappropriate forum requires a consideration of whether the conduct of the proceedings in Australia would be vexatious or oppressive, being seriously and unfairly burdensome, under circumstances where parties have a prima facie right to conduct proceedings where they have regularly invoked the jurisdiction.

Penhall & Gibbens [2021] FamCA 210 - where the respondent wife was restrained from conducting property or child related proceedings in France.

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 - provides that the determination of the question of whether Australia is a clearly inappropriate forum is a task which can be equated to examining the merits of Australia as a forum.

Analysis:

The duplication of the proceedings by the commencement of divorce proceedings in Australia has the potential to undermine the appropriateness of Australia as the forum. However, all of the other proceedings concerning the breakdown of the relationship are being conducted here, and are unable to be conducted in France, by virtue of the anti-suit injunctions that restrain the wife from conducting those proceedings in France. The continuation of the divorce proceedings in France carries with it the prospect that other aspects of the parties’ dispute will be dealt with despite the anti-suit injunctions. The conduct of the divorce in Australia lends itself to the prompt resolution of the divorce.

Failure to eschew jurisdiction in the property proceedings warrant the further steps being taken by the wife to ensure the effectiveness of the antisuit injunctions. The steps proposed by the husband were not identified as unduly burdensome by the wife, and appear well adapted to supporting the anti-suit injunctions.

Conclusion:

The Court ordered a declaration that this Court be the appropriate forum for the conduct of divorce proceedings commenced by the applicant by filing an Application for Divorce on 22 June 2021 with the Federal Circuit Court of Australia (Canberra) (CAC1315/2021). The Application for Divorce filed 22 June 2021 (CAC1215/2021) is to be heard before Deputy Registrar Benedict Porter on 10 September 2021 at 9:30am. An interpreter in the French language is to be retained to assist in the divorce proceedings. The anti-suit injunctions requiring the wife to both take steps to bring the French proceedings to an end are ordered. The respondent is restrained by injunction from taking any steps to continue proceedings in any Court or Tribunal in France with respect to divorce or related matters. Within 14 days, the respondent shall do all acts and sign all documents to cause the hearing listed on 21 September 2021 at Tribunal Judiciaire De C City (“Judicial Tribunal of C City”) in France to be vacated and provide to the applicant’s solicitor copies of any documents and correspondence evidencing the compliance with this Order. Within 14 days, the respondent shall do all acts and sign all documents to withdraw all the Applications or any other initiating documents she has lodged with any Court or Tribunal in France.

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