A stay of Australian divorce proceedings in favour of foreign proceedings focuses on the existence of parallel foreign proceedings concerning the same marital relationship, the connection of the marriage and its incidents with Australia, and the availability of relief in the foreign forum, rather than on the prima facie right to insist on the exercise of jurisdiction.
Later decisions that cite Henry v Henry
Decisions cited by Henry v Henry
GERDA GERTRUD HENRY v BARRY WALTER HENRY
F.C. 96/012
Number of pages - 19
Practice and Procedure
[1996] HCA 51; (1996) 185 CLR 571
HIGH COURT OF AUSTRALIA
BRENNAN CJ(1), DAWSON(2), GAUDRON(2), McHUGH(2) AND GUMMOW(2) JJ
CATCHWORDS
Practice and Procedure - Stay of proceedings - Matrimonial proceedings pending in foreign jurisdiction - Clearly inappropriate forum - "Vexatious" - "Oppressive" - Relevance of foreign proceedings with respect to same issue or controversy - Considerations relevant to stay of matrimonial proceedings.
Family Law Act 1975 (Cth), s 39(3).
HEARING
CANBERRA, 22 November 1995ORDER
1. Appeal allowed with costs.DECISION
BRENNAN CJ. The circumstances out of which this appeal arises are set out in the reasons for judgment of Dawson, Gaudron, McHugh and Gummow JJ. The respondent husband commenced proceedings against the appellant wife in the Family Court of Australia for a decree of dissolution of their marriage. The wife submitted that the Family Court was "a clearly inappropriate forum" in which to determine those proceedings. The Full Court of the Family Court, on a cross-appeal by the wife from the decision of Ross-Jones J, held that the Family Court was not a clearly inappropriate forum and, so holding, dismissed the cross-appeal. The question for this Court is whether the Full Court was right so to hold.
2. In Voth v Manildra Flour Mills Pty Ltd (1), the test of "clearly
inappropriate forum" was adopted by a majority of this Court
(2) as the test
to be applied when a party to proceedings in an Australian forum seeks a stay
of those proceedings in order to permit
the same matter to be determined in a
foreign forum having the necessary jurisdiction. In Voth, a substantial
judicial consensus
as to the test was forged by putting "aside individual
differences of emphasis" that had been expressed in Oceanic Sun Line Special
Shipping Company Inc v Fay (3) in order to "enunciate authoritatively the
principles and criteria to be applied by Australian courts
in future cases"
(4). Two questions now arise for consideration: does Voth apply to
proceedings for a decree of dissolution of marriage
under the Family Law Act
1975 (Cth)? and, if so, what factors does Voth require the Court to take into
account?
Does Voth apply to proceedings for divorce?
3. In earlier times, when the domicil of the husband was the foundation of
jurisdiction in divorce (5), there was little occasion
to consider the problem
that arises when the court of the forum and a foreign court each has
jurisdiction to determine proceedings
for divorce between the same parties.
The problem arose only when an extended statutory jurisdiction was conferred
on the forum court
or claimed by the foreign court. Such a case arose in
Sealey (orse Callan) v Callan (6). An English statute had conferred
jurisdiction
in divorce on the High Court when a petition for divorce was
filed by a wife ordinarily resident in England against a husband who
was not
domiciled in the United Kingdom, the Channel Islands or the Isle of Man. It
was held that the same approach should be taken
in determining a stay either
in actions at common law or in proceedings for divorce.
4. The practice in Commonwealth countries seems to be to apply to proceedings
for divorce the general rules governing stay applications
when a foreign forum
possesses parallel jurisdiction. In the Manitoba Court of Appeal, Philp JA in
Kornberg v Kornberg (7) held
that the rule applicable to the generality of
cases applied to applications for stay of divorce proceedings. His Lordship
said:
"Do special principles apply in matrimonial proceedings? It wouldappear that they do not, and no policy reasons favouring a departure from the general principles are discernible from the authorities. One of the general principles is that it is not prima facie unjust or vexatious to commence two actions about the same subject-matter, one here and one in a foreign jurisdiction. Another general principle, and one that is especially relevant to this case, is that the courts will lean against interference even more strongly where the plaintiff in one jurisdiction is the defendant in another."
5. In England, the common law rule applicable to the generality of cases has
changed from the rules laid down in earlier times.
The present rules are to
be found in the speeches in Spiliada Maritime Corp v Cansulex Ltd (8), which
affirms the existence of an
inherent jurisdiction in the Court to order a stay
of proceedings on the ground of forum non conveniens. In that country, a
statutory
provision applicable to matrimonial proceedings empowers the court
to stay proceedings where there are proceedings in respect of
the marriage,
its validity or its subsistence pending in another jurisdiction and the
balance of fairness (including convenience)
makes it appropriate to stay the
English proceedings (9). In de Dampierre v de Dampierre (10) it was held that
the approach under
the inherent jurisdiction and under the statute should be
the same.
6. However, none of these cases affords a cogent reason for holding that the
rules applicable to the generality of cases in this
country should govern
applications to stay proceedings in the Family Court for a decree of
dissolution of marriage. The question
is not whether the rules governing all
proceedings should be the same but whether the test adopted by this Court in
Voth is suitable
for application to proceedings for dissolution of marriage.
If de Dampierre were strictly followed, the same approach would be taken
as
that adopted in Spiliada but the Spiliada rules were rejected by this Court
first in Oceanic Sun and subsequently in Voth. The
question for determination
is this: when the statutory jurisdiction of the Family Court to determine a
proceeding for a decree of
dissolution of marriage is regularly invoked, is
the ground on which the Court can decline to exercise that jurisdiction the
same
ground as that defined in Voth?
7. In Voth (11), the majority judgment pointed out the legal foundation for
the test of "clearly inappropriate forum":
"The selected forum's conclusion that it is a clearlyinappropriate forum is a persuasive justification for the court refraining from exercising its jurisdiction. Granted that there is an obligation on the domestic courts of this country to exercise jurisdiction which is conferred upon them - a matter on which the majority in Oceanic Sun was united - it does not extend to cases where it is established that the forum is clearly inappropriate. To say, in line with the Spiliada approach, that the selected forum is justified in refraining from exercising its jurisdiction when it concludes no more than that another available and competent forum is more appropriate is to acknowledge that a court can decline to perform its obligation to exercise jurisdiction even though it is an appropriate or not inappropriate court. That proposition is by no means easy to sustain as a matter of legal principle, though we acknowledge that the argument deriving from the obligation to exercise jurisdiction has less force in its application to cases falling within the extended jurisdiction where the plaintiff is required to obtain leave to serve outside the jurisdiction."
8. The jurisdiction of the Family Court in the present case is conferred by s
39(3) of the Family Law Act which provides:
"Proceedings for a decree of dissolution of marriage may beinstituted under this Act if, at the date on which the application for the decree is filed in a court, either party to the marriage:
(a) is an Australian citizen;for 1 year immediately preceding that date."
(b) is domiciled in Australia; or
(c) is ordinarily resident in Australia and has been so resident
The factors relevant to show that the Family Court is a "clearly inappropriate
forum"
9. In Voth, the consensus which adopted the "clearly inappropriate" test drew
a distinction between that test and the test of "clearly
more appropriate
forum" adopted in Spiliada. The difference in approach in the two tests was
stated by the majority in these terms
(12):
"The 'clearly inappropriate forum' test is similar to and, forthat reason, is likely to yield the same result as the 'more appropriate forum' test in the majority of cases. The difference between the two tests will be of critical significance only in those cases - probably rare - in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one. But the question which the former test presents is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums."
10. That is not to say that the jurisdiction of the foreign tribunal is
immaterial. As the majority judgment said (14):
"The availability of relief in a foreign forum will always be arelevant factor in deciding whether or not the local forum is a clearly inappropriate one."
11. It follows that, before proceedings instituted under s 39(3) of the
Family Law Act are stayed, two conditions must be satisfied:
first, that the
Family Court is a clearly inappropriate forum in which to determine
proceedings for a decree of dissolution of the
marriage in question; secondly,
that there is some forum in another country which
has and can exercise
jurisdiction in proceedings
for a decree of dissolution of marriage.
12. In Gilmore v Gilmore (15) 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 courthas a prima facie right to insist upon its exercise;
2. The power to stay proceedings regularly commenced is to beexercised 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 anotherjurisdiction 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 byLord 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'."
"We agree with Gaudron J that the substantive law of the forum isa 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."
13. The first of the five points is, in my respectful opinion, correctly
stated. It accords with the legal rationale for adopting
the Voth rather than
the Spiliada test, as the majority judgment in Voth pointed out. And it
identifies the evidential onus that
rests on the party seeking an order to
stay proceedings that invoke a jurisdiction which, ex hypothesi, the selected
forum possesses
and which it would be under a duty to exercise unless it is
shown to be a clearly inappropriate forum. In my respectful opinion,
it is
erroneous in principle to regard the prima facie right to insist on the
exercise of the jurisdiction of the selected forum
as a factor to be weighed
in a balance of convenience or appropriateness between the selected forum and
a foreign forum. The gravamen
of the Voth test is that some reason must be
shown, not for preferring one forum or another, but for staying the exercise
of the
jurisdiction of the selected forum.
14. The extended jurisdiction which is conferred by s 39(3) of the Family Law
Act is clearly intended to allow decrees of dissolution
to be made under the
Act when there is a personal connection by way of citizenship,
domicil or
ordinary residence between a party
to the marriage and Australia. So long as
that connection is shown, the intention
of the sub-section is that persons
falling within
par (a), (b) or (c) of that sub-section should be able to apply
for relief by way
of a decree of dissolution in appropriate cases.
It would
be contrary to the statutory intention for the Family Court to deny that
relief if it were not available in another forum.
Therefore, where
proceedings for a decree of dissolution of marriage are instituted
under s
39(3) of the Family Law Act and an application
to stay those proceedings is
made in accordance with the rule in Voth, it would be necessary for the
applicant
to show that a foreign
tribunal has jurisdiction to make such a
decree. Obviously, the connection prescribed by s 39(3) would exist in some
cases in which
there would be no other relevant connection of any substance
between the marriage and Australia.
These are the cases in which it
is
material to consider the application of the Voth test.
The Voth test in the present case
15. The parties to the marriage in the present case were not married in
Australia. They have never lived in this country as man
and wife. Their
married life was lived in Europe, latterly in Monaco where they had their
matrimonial home. In this country, there
are no children of the marriage
whose custody, maintenance or welfare might be affected by the making of a
decree of dissolution.
Nor is there here any substantial property of the
spouses the disposition of which might be affected by the making of a decree
of
dissolution. In short, there is no connection between the marriage of the
parties and this country.
16. The institution of marriage is of fundamental legal and social
significance, but the married status is of little significance
to the legal
system or society of a territory in which the parties have never lived as man
and wife, where there are no children
of the marriage and where there is no
substantial amount of property belonging to the spouses or on which a spouse
might reasonably
be thought to have a claim by virtue of the matrimonial
relationship. The courts of such a territory are prima facie inappropriate
fora in which to institute proceedings for a decree of dissolution of the
marriage. That is the present case.
17. In my opinion, it is neither necessary nor appropriate to consider what
effect an Australian decree of dissolution of marriage
might have on property
situated in either Monaco or Switzerland. It is sufficient for the appellant
to show an absence of any connection
between the marriage and its incidents on
the one hand and Australia on the other. (By "incidents", I mean children of
the marriage
and property on which the spouses or either of them might
reasonably be thought to have some claim by reason of the matrimonial
relationship.)
18. I do not regard the stage which the wife's proceedings in Monaco have
reached to be material to the resolution of this case.
If the order in which
proceedings are commenced were to be regarded, without more, as material to
the application of the Voth test,
the focus of the inquiry would be shifted to
the comparative advantages of continuing the proceedings in the respective
fora. It
is not helpful, in my respectful opinion, to enquire whether there
are proceedings on foot elsewhere and then, perceiving that duplication
of the
proceedings in the selected forum would be undesirable, hold that the selected
forum is clearly inappropriate. To adopt that
line of reasoning would be to
conclude that, as between two fora possessed of jurisdiction to determine the
same matter, the forum
in which the proceedings are not first brought is a
clearly inappropriate forum. It is of the nature of the problem that two fora
have jurisdiction to determine the same matter in dispute, but the Voth test
requires that the focus be on the advantages and disadvantages
of proceeding
in the selected forum. Of course, there may be cases where proceedings
instituted in the selected forum are oppressive
in the relevant sense because
the institution of those proceedings was delayed until the proceedings in the
foreign forum were nearing
completion. But that is a different case from one
in which the jurisdictions of two fora have been invoked by parties because
one
of them favours the exercise of the jurisdiction of one forum, the other
of whom favours the exercise of the jurisdiction of the
other. That is the
situation in the present case.
19. In this case, the wife has invoked the jurisdiction of the Monegasque
court, the husband has invoked the jurisdiction of the
Family Court. It
matters not which proceeding was first commenced. But Australia has no
connection with the marriage or its incidents.
The Family Court of Australia
is therefore a clearly inappropriate forum. The Monegasque court has
jurisdiction and, so far as appears,
is willing to exercise it. The relief of
a decree of dissolution is available in the Monegasque court. Accordingly,
the Family
Court ought to have stayed the husband's proceeding for a decree of
dissolution of marriage.
20. It follows that I would allow the appeal. The order of the Full Court
should be set aside and in lieu thereof the wife's cross-appeal
on the ground
that a stay should have been ordered should be allowed and an order made
staying the proceedings for a decree of dissolution
of marriage until further
order.
DAWSON, GAUDRON, McHUGH AND GUMMOW JJ. The appellant, Gerda Gertrud Henry, is a German national resident in Monaco. She is married to the respondent, Barry Walter Henry, who is an Australian citizen and who, until 1993, was also resident in Monaco. They were married in Germany in 1977. They moved to Monaco some ten or eleven years later.
2. In late 1993, the respondent returned to Australia and commenced divorce
proceedings against the appellant in the Family Court
of Australia ("the
divorce proceedings"). He also brought proceedings in that court with respect
to property ("the property proceedings")
seeking, in essence, that his
financial obligations to the appellant be determined by an order that he pay
her 20% of the balance
of moneys held by him in certain Swiss bank accounts.
3. The appellant applied for the Australian proceedings to be stayed or
dismissed in favour of proceedings which were already on
foot in Monaco ("the
stay application"). There was a hearing of that application, as it related to
the divorce proceedings, by a
Judicial Registrar, a review of the Judicial
Registrar's decision by Ross-Jones J and an appeal by way of cross-appeal to
the Full
Court of the Family Court. At each stage, it was held that the
divorce proceedings should go ahead in Australia. The appellant
now appeals
to this Court.
4. The appeal is brought in the following circumstances: no consideration
has been given to the question whether the property proceedings
should also go
ahead in this country; and having dismissed her appeal, the Full Court granted
a decree nisi for the dissolution of
the appellant's marriage to the
respondent. That decree has been stayed pending the outcome of this appeal.
Connection of the parties with the competing jurisdictions
5. The respondent was born in Australia in 1932 and lived here until 1976,
travelling abroad with some frequency in later years.
In 1976, he went to
Switzerland with Liarne, his daughter by a previous marriage. He became ill
soon after his arrival and the
appellant, who was working in Switzerland,
offered to look after him and Liarne in Germany. He accepted her offer. They
were married
in Germany soon afterwards. They set up home in Germany and
lived there with Liarne for the next ten years. They then moved back
to
Switzerland, though, perhaps, not at the same time.
6. The respondent decided to take up residence in Monaco in 1988, apparently
for taxation reasons. The parties moved to Monaco
at different times, but it
seems that they lived there together from 1989 until late 1992 or early 1993.
As already indicated, the
appellant continues to reside in Monaco. In late
1992 or early 1993, apparently when he was living apart from the appellant,
the
respondent decided to return to Australia. He surrendered his Monegasque
residence card on 4 October 1993, advising the relevant
authorities that he
left Monaco permanently on 8 March 1993. He arrived in Australia on 8 October
and commenced proceedings for
divorce on 10 November 1993.
7. The respondent has money in bank accounts in Monaco, New York and
Switzerland and has or has had business interests in Europe,
the United States
of America and in Asia. The appellant believes he has substantial property
interests in the United States and
in the Cayman Islands: the respondent
claims otherwise. In Australia, he has a rented apartment, a car and a bank
account but few
other assets.
8. It remains to be noted that the parties spent no part of their married
life in Australia. The appellant visited Australia as
a tourist before her
marriage to the respondent and once during the marriage. Apparently, the
respondent also visited Australia
once during the marriage, though not with
the appellant.
The status of the Monegasque proceedings when the stay application was heard
by the Judicial Registrar
9. The respondent commenced proceedings in Monaco on 14 December 1992 by
filing a petition for divorce. There is evidence that,
under Monegasque law,
a petition for divorce is a step which leads to conciliation proceedings
before a Conciliating Magistrate and,
perhaps, interim orders, but does not,
of itself, lead to divorce or final orders with respect to maintenance or
property. According
to the evidence, if the Conciliating Magistrate concludes
that reconciliation is impossible, leave is granted to serve a writ or
"assignation" which requires the other party to attend before a Tribunal of
First Instance and divorce proceedings are commenced
"(o)nly once the
'assignation' has been served and the first hearing ... has taken place".
10. The respondent's petition for divorce led to conciliation proceedings
which were adjourned on 13 January 1993 and, again, on
20 January 1993. The
respondent failed to attend before the Conciliating Magistrate on 24 February
1993, the date to which the proceedings
had been adjourned, and his petition
was struck out. He said in evidence in the Family Court that he "withdrew the
divorce on 24
February" - apparently, by not attending - because of his belief
that the appellant did not want a divorce.
11. The respondent left Monaco in late February 1993 to visit Japan and,
perhaps, the United States. On 8 March 1993, the day on
which the respondent
later claimed to have left Monaco permanently, the appellant commenced
proceedings in that country for judicial
separation. On the same day, orders
were made in those proceedings forbidding the respondent from entering the
matrimonial home,
preventing him from drawing on his Monaco bank account and
requiring him to pay maintenance in the amount of FF50,000 per month.
Orders
were also made preventing him from drawing on his Swiss bank accounts. It is
not clear whether those orders were made in
the Monegasque proceedings and
registered in Switzerland or whether separate proceedings were instituted and
orders made in Switzerland.
12. On 11 August 1993, the appellant applied to the Court of First Instance
of Monaco for leave to cancel her proceedings for judicial
separation and to
commence divorce proceedings. She also applied for orders with respect to
property and maintenance. On the same
day, an order was made requiring the
parties to attend a reconciliation hearing on 17 November 1993 as well as
orders with respect
to maintenance and the matrimonial residence. There were
also orders with respect to the bank accounts in Monaco and Switzerland
but,
again, it is not clear whether the orders relating to the Swiss accounts were
made in the Monegasque proceedings or in separate
proceedings in Switzerland.
It seems that, initially, those orders prevented the respondent from drawing
on his Swiss accounts but,
as the result of subsequent proceedings and
appeals, each party may now draw on the accounts if the other consents.
13. An Order of Non Reconciliation was made on 1 December 1993 and a writ for
divorce or "assignation" was served on the respondent
on 28 December 1993,
requiring him to appear before the Tribunal of First Instance in Monaco on 6
January 1994. The writ asserted
that the respondent was legally domiciled in
Monaco but domiciled in fact in Australia and that, under Monegasque
jurisprudence,
"the marriage (of the parties) is governed by the legal regime
in force in Germany at the time of their marriage". The writ also
asserted
that under that regime, the appellant "has the right to half of the assets
acquired during the marriage".
14. It is not in issue that the respondent was represented in and resisted
various aspects of the proceedings in Monaco and, perhaps,
also in
Switzerland. And his counsel indicated in proceedings before the Judicial
Registrar on 18 February 1994, that he was then
challenging the jurisdiction
of the Monegasque courts to entertain the proceedings initiated by the
appellant.
The basis of jurisdiction in Australia and in Monaco
15. It is not clear on what basis the courts of Monaco exercise jurisdiction
with respect to divorce. The argument for the appellant
in the Family Court
seems to have assumed that the Monegasque courts would not have jurisdiction
over the proceedings which she instituted
if the respondent had acquired or,
perhaps, had retained his Australian domicile. There was, however, no
evidence on this issue.
16. By s 39(3) of the Family Law Act 1975 (Cth) ("the Act"), proceedings may
be instituted in this country for divorce if, at the
date of the application
for divorce, either
party:
"(a) is an Australian citizen;for 1 year immediately preceding that date".
(b) is domiciled in Australia; or
(c) is ordinarily resident in Australia and has been so resident
17. As already indicated, the respondent challenged the jurisdiction of the
Courts of Monaco, but the grounds of his objection do
not appear. He invoked
the jurisdiction of the Family Court on the basis of his Australian domicile,
his primary claim being that
he had never acquired any other and, thus, had
not lost his domicile of origin. For present purposes, it is sufficient to
note that,
by s 10 of the Domicile Act 1982 (Cth), a person acquires a
domicile of choice in a country if that person has the intention of making his
or her home indefinitely
in that country and that the Judicial Registrar held
that the respondent's "resumption of his Australian domicile was complete on
8
October 1993 when he arrived in Australia in circumstances where he had
surrendered his Monegasque residence card and had the intention
of making his
home indefinitely in Australia". He concluded, therefore, that the respondent
had a domicile of choice in Australia
at 10 November 1993 when he instituted
proceedings for divorce. That conclusion was confirmed by Ross-Jones J and by
the Full Court.
It is not challenged in this appeal.
Recognition of foreign divorces
18. There is no material to indicate whether, and if so, in what
circumstances an Australian divorce is recognised in Monaco. It
may be that
in this case the more important question is whether orders made by an
Australian court with respect to property will
be recognised in Switzerland.
If so, that question has not been explored.
19. It is clear that, if a divorce is granted in Monaco on the proceedings
instituted by the appellant, it will be recognised in
Australia pursuant to
sub-ss (1) and (3)(b) of s 104 of the Act. The effect of those sub-sections
is that a foreign decree is recognised
if the initiating party was ordinarily
resident in the jurisdiction in question at the time the proceedings were
instituted and either
that party was continuously resident in that
jurisdiction for one year before the proceedings were instituted or the
parties' last
place of cohabitation was in that jurisdiction.
Decisions of the Judicial Registrar and of Ross-Jones J
20. The Judicial Registrar held, by reference to the decision of this Court
in Voth v Manildra Flour Mills Pty Ltd (19) and the
later decision of the Full
Court of the Family Court in Gilmore v Gilmore (20), that the appellant had
not made it clear that the
Australian divorce proceedings were oppressive,
vexatious or an abuse of process. The Judicial Registrar added that:
"in her answer objecting to jurisdiction (the appellant) assertsthat the husband ... brought these proceedings to unfairly obtain substantial juridical advantage by rendering nugatory proceedings between the parties in Monaco and Switzerland. Yet the wife puts no evidence before this Court to support her assertion. In the absence of relevant evidence in proper form, I am at a loss to know how a decree of dissolution of marriage granted by this Court would affect proceedings between the parties in the Courts in Switzerland and Monaco, if at all".
21. On review, Ross-Jones J adopted the Judicial Registrar's reasoning and
conclusions, in particular his conclusion that "the (appellant)
failed to
discharge the onus on her to satisfy the Court that it is so inappropriate a
forum for determination of the proceedings
for dissolution of marriage that
continuation of the proceedings would be oppressive or vexatious to her or an
abuse of process".
The status of the Monegasque proceedings at the time of the proceedings in the
Full Court
22. On appeal, the appellant unsuccessfully sought leave to lead evidence as
to the status of the proceedings in Monaco. That evidence
was to the effect
that the Court of Review of Monaco had upheld the jurisdiction of the courts
of that country to entertain the appellant's
proceedings on the ground that
"the provisions of article 4 in the Code of Civil Procedure ... only allow a
foreigner to decline
the jurisdiction of the Monegasque courts, if he has kept
in his country, a domicile of fact and a legal one". It will emerge that
that
evidence should have been admitted by the Full Court.
The decision of the Full Court
23. As already indicated, the Full Court upheld the Judicial Registrar's
decision that the divorce proceedings should go ahead in
Australia. An
argument based on the limited connection of the parties or their property with
Australia was dismissed by Nicholson
CJ, with whom Fogarty and Finn JJ agreed,
on the ground that although it "might have relevance to property proceedings
... (it was)
entirely irrelevant to the issue before the Court" (21). His
Honour added that "(t)here are many applications for dissolution where
the
other partner has never lived in Australia and that has never been regarded as
a basis for refusing jurisdiction" (22).
The general principle governing a stay of proceedings in favour of a foreign
forum
24. In Voth v Manildra Flour Mills Pty Ltd (23), this Court confirmed its
rejection, in Oceanic Sun Line Special Shipping Company
Inc v Fay (24), of the
forum non conveniens principle as stated by the House of Lords in Spiliada
Maritime Corp v Cansulex Ltd (25).
The Spiliada principle allows that a court
may stay proceedings which are pending before it if that court is not the
natural forum
and there is another available forum which is clearly or
distinctly more appropriate (26). The result is that, in the United Kingdom,
a
stay will be granted in favour of a clearly more appropriate forum or, which
is much the same thing in practice, the natural forum
(27), that being the
forum "with which the action (has) the most real and substantial connection"
(28). And in determining which
is the natural forum it is relevant to have
regard to "connecting factors", which include "not only factors affecting
convenience
or expense (such as availability of witnesses), but also other
factors such as the law governing the relevant transaction ... and
the places
where the parties respectively reside or carry on business" (29). It has
since been held in de Dampierre v de Dampierre
(30) that, depending on the
circumstances, the existence of other proceedings in the alternative forum may
also be a relevant matter.
It was also held in de Dampierre that the Spiliada
principle applies in the United Kingdom to matrimonial disputes as much as to
commercial litigation (31).
25. In Voth (32), 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"
(33). 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
(34) of relevant 'connecting factors' and 'a legitimate
personal or juridical
advantage' provides valuable assistance" (35). 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'" (36).
Earlier application of the principle in Family Court proceedings
26. In Gilmore v Gilmore (37), the Family Court had occasion to consider the
clearly inappropriate forum test in its application
to proceedings in that
court. In that case, Fogarty J identified "five elements" which, in his
Honour's view, were involved in "(t)he
substance of the Australian test". The
relevant passage in his Honour's judgment was set out in the decision of the
Judicial Registrar
in this case. It clearly affected his decision and that of
Ross-Jones J. And it may well have been significant to the decision
of the
Full Court. The passage is as follows (38):
"The substance of the Australian test involves five elements:
1. A party who has regularly invoked the jurisdiction of a courthas a prima facie right to insist upon its exercise;
2. The power to stay proceedings regularly commenced is to beexercised 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.
3. The fact that the balance of convenience favours anotherjurisdiction 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 byLord 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'."
27. The quoted passage may be misleading in three important respects. First,
the substance of the test in Voth is simply whether
the chosen forum is a
clearly inappropriate forum. And, as already indicated, that is to be
determined by considering whether continuation
of the proceedings would be
"oppressive" or "vexatious", in the extended sense in which those words were
used by Deane J in Oceanic
Sun.
28. The passage may also be misleading in that it gives undue emphasis to the
"prima facie right (of a party who has invoked the
jurisdiction) to insist
upon its exercise" (39), a consideration which appears to have been material
in the decisions in this case.
It was pointed out in the majority judgment in
Voth that that prima facie right was common ground in the judgments of the
majority
in Oceanic Sun (40). And as such, it was doubtless taken into
account in the decision to adopt the "clearly inappropriate forum"
test rather
than the Spiliada test. But there was also a statement to the effect that, in
some cases, too much weight may have been
given to "the notion that a
proceeding regularly invoked provides a prima facie right to have the
proceeding continue in that forum"
(41).
29. There may be cases in which the notion of prima facie right has some role
in determining whether or not a stay should be granted.
For example, it may
well be significant in what is otherwise a finely balanced contest. But there
are also cases in which that
notion can do little more than indicate that the
onus lies on the party seeking a stay to establish that the chosen forum is
clearly
inappropriate. Indeed, there may be cases where the forum is so
clearly inappropriate that the notion of prima facie right can have
no real
bearing on the matter, as, for example, if the cause of action arose in a
country in which the parties reside or carry on
business and their controversy
can conveniently be litigated in that country.
30. The third matter to which reference should be made, although it does not
have any direct bearing on this case, is the statement
in Gilmore concerning
the significance of the substantive law governing the matter in issue. Voth
is not authority for the proposition
that "(t)he 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'" (42). Rather, it was said in the majority judgment 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" (43).
The relevance of proceedings in another jurisdiction
31. There is one other matter that should be observed with respect to the
decision in Gilmore, a case involving proceedings both
in Australia and in New
Zealand. In their separate judgments, Fogarty J, with whom Finn J agreed, and
Lindenmayer J criticised the
"clearly inappropriate forum test" in its
application to proceedings in the Family Court. Fogarty J expressed the view
that the
test might "lead to inconvenience, in that it will create the risk of
parallel proceedings" (44). Lindenmayer J stated his belief
that the clearly
inappropriate forum test was "bound to lead to increased forum shopping and
jurisdictional conflict" between the
courts of Australia and New Zealand. His
Honour added (45):
"If the Courts of New Zealand apply the Spiliada test to suchcases, as seems not unlikely, then the prospect of having numbers of cases in which parallel proceedings for similar relief are going forward to hearing in both courts simultaneously on either side of the Tasman is one which can only be regarded with great trepidation by those responsible for the administration of Family Law in both countries."
32. There appears to be an assumption in Gilmore that the duplication of
proceedings in another country is not, of itself, relevant
to the question
whether Australia is a clearly inappropriate forum. Certainly, that assumption
was made in the present case, the
Judicial Registrar having proceeded on the
basis that the proceedings in Monaco should be taken into account only if they
or the
proceedings in Switzerland would be affected by the Australian
proceedings.
33. Foreign proceedings usually fall for consideration in a context in which
they involve the same or related factual issues as
those involved in the local
proceedings, but not the same legal issue and, perhaps, not the same parties.
Even in cases of that kind
it may sometimes be appropriate to grant a
temporary stay of the local proceedings to allow the factual issues to be
determined in
the other jurisdiction (46). There are more compelling
considerations in favour of a stay of the local proceedings if, as can happen,
there are proceedings in another country which has jurisdiction to entertain
those proceedings and the proceedings are between the
same parties and with
respect to the same issue or controversy.
34. Parallel proceedings in another country with respect to the same issue
may be compared with multiple proceedings with respect
to the same subject
matter in different courts in Australia. In Union Steamship Co of New Zealand
Ltd v The Caradale (47), Dixon
J observed of that latter situation that "(t)he
inconvenience and embarrassment of allowing two independent actions involving
the
same question of liability to proceed contemporaneously in different
courts needs no elaboration." From the parties' point of view,
there is no
less - perhaps, considerably more - inconvenience and embarrassment if the
same issue is to be fought in the courts of
different countries according to
different regimes, very likely permitting of entirely different outcomes.
35. It is prima facie vexatious and oppressive, in the strict sense of those
terms, to commence a second or subsequent action in
the courts of this country
if an action is already pending with respect to the matter in issue (48). And
although there are cases
in which it has been held that it is not prima facie
vexatious, in the strict sense of that word, to bring proceedings in different
countries (49), 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 the other
should be seen as vexatious or oppressive
within the Voth sense of those words.
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". And it also follows that courts should strive, to
the extent
that Voth permits, to avoid that situation.
Proceedings between husband and wife with respect to the marital relationship
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.
38. Although the appellant first brought proceedings against the respondent
in Monaco for judicial separation and, only later, commenced
proceedings for
divorce, both proceedings were, in essence, proceedings with respect to their
marital relationship. Clearly, it
was the same marital relationship which was
the subject of the divorce proceedings brought in Australia by the respondent.
And although
it may not be quite so clear, the property proceedings instituted
by the respondent in the Family Court are but an aspect of his
controversy
with the appellant as to their marital relationship. It may have been
otherwise if they were no longer married, but
so long as their marriage
subsists, their dispute with respect to property is a dispute as to the rights
and obligations arising
out of their marital relationship and those which
should attend its dissolution. As such, it is properly to be seen as part of
the
controversy with respect to that relationship.
Considerations relevant to a stay of proceedings between husband and wife with
respect to their marital relationship
39. 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
(50). 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.
40. 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.
Relevant considerations not taken into account in the present case
41. The stay proceedings were fought on narrow grounds, perhaps reflecting
the practice which has developed in the Family Court.
The appellant cannot
now be heard to complain that matters which were not advanced in support of
her application were not taken
into account. Nor can she be heard to complain
that her application was considered only in relation to the divorce
proceedings and
not in relation to the property proceedings initiated by the
respondent: that seems to have been at her request; in any event it
was not
the subject of complaint at any point in the Family Court.
42. The appellant is, however, entitled to complain that no or insufficient
regard was had to the fact that there were proceedings
on foot in Monaco. As
already indicated, a divorce decree granted in the Monegasque proceedings
instituted by the appellant will
be recognised in Australia. In these
circumstances and assuming the jurisdiction of the Monegasque court to
entertain her proceedings,
the fact that those proceedings were on foot was,
itself, a most material consideration. The Judicial Registrar did not concern
himself
in any way with the question whether there was jurisdiction in Monaco.
Perhaps he simply assumed there was. Certainly, he gave no
weight to the fact
that there were proceedings pending in that country with respect to the
marriage. And he gave no weight to the
fact that it was that country in which
the parties last cohabited. There was, thus, a failure to take relevant
considerations into
account in determining whether Australia was a clearly
inappropriate forum. The Full Court should have so held.
43. Had the Full Court approached the matter on a correct basis, a question
would have arisen whether it should remit the matter
to a single judge or,
perhaps, a judicial registrar for further consideration or whether it should
proceed to determine, for itself,
whether Australia was a clearly
inappropriate forum. In deciding that issue, it would have been relevant for
the Full Court to know
what stage the proceedings had reached in Monaco (51).
The Full Court should, thus, have admitted the evidence that the Court of
Review had rejected the respondent's objection to the jurisdiction of Monaco.
Conclusion
44. The appeal should be allowed with costs. The orders of the Full Court
dismissing the appellant's cross-appeal and pronouncing
a decree nisi for
dissolution of marriage should be set aside. In lieu thereof, the appellant's
cross-appeal to that court should
be allowed with costs. The matter should be
remitted to that Court for its decision as to the course the proceedings
should now
take, including what, if any, order should be made as to the costs
of the proceedings before the Judicial Registrar and before Ross-Jones
J.
1 [1990] HCA 55; (1990) 171 CLR 538.
2 [1990] HCA 55; (1990) 171 CLR 538 at 564, 572, cf 590.
3 [1988] HCA 32; (1988) 165 CLR 197.
4 [1990] HCA 55; (1990) 171 CLR 538 at 552, 572.
5 Le Mesurier v Le Mesurier (1895) AC 517 at 540-541; Lord Advocate v Jaffrey
(1921) 1 AC 146; Attorney-General for Alberta v Cook
(1926) AC 444; Ainslie v
Ainslie [1927] HCA 23; (1927) 39 CLR 381 at 391-392.
6 (1953) P 135 at 149.
7 (1990) 76 DLR (4th) 379 at 387.
8 (1987) AC 460 especially per Lord Goff of Chieveley at 477-478 and 482-484.
9 Domicile and Matrimonial Proceedings Act 1973 (UK), Sched 1, par 9(1).
10 (1988) AC 92 at 108-109.
11 [1990] HCA 55; (1990) 171 CLR 538 at 559-560.
12 [1990] HCA 55; (1990) 171 CLR 538 at 558.
13 See (1990) 171 CLR 538 at 559.
14 [1990] HCA 55; (1990) 171 CLR 538 at 558.
15 (1993) FLC 92-353 at 79,728.
16 (1993) FLC 92-353 at 79,727. Namely, "oppressive" is to be understood as
meaning "seriously and unfairly burdensome, prejudicial
or damaging" whilst
"vexatious" should be understood as meaning "productive of serious and
unjustified trouble and harassment":
see Voth [1990] HCA 55; (1990) 171 CLR 538 at 555-557.
17 [1990] HCA 55; (1990) 171 CLR 538 at 566.
18 Sub-sections (4)(a) and (4A) of s 39 of the Act.
19 [1990] HCA 55; (1990) 171 CLR 538.
20 (1993) FLC 92-353.
21 In the Marriage of Henry (1995) 19 Fam LR 227 at 238.
22 (1995) 19 Fam LR 227 at 238.
23 [1990] HCA 55; (1990) 171 CLR 538.
24 [1988] HCA 32; (1988) 165 CLR 197.
25 (1987) AC 460.
26 (1987) AC 460 at 478 per Lord Goff of Chieveley.
27 (1987) AC 460 at 477. See also Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990)
171 CLR 538 at 557 where it is observed
that in "the
Spiliada formulation ...
the 'natural forum' and 'more appropriate forum'
are treated as
interchangeable expressions".
28 (1987) AC 460 at 478, quoting The "Abidin Daver" (1984) AC 398 at 415.
29 (1987) AC 460 at 478.
30 (1988) AC 92 at 108.
31 (1988) AC 92 at 102.
32 [1990] HCA 55; (1990) 171 CLR 538 at 564-565.
33 [1988] HCA 32; (1988) 165 CLR 197 at 247.
34 (1987) AC 460 at 477-478, 482-484.
35 [1990] HCA 55; (1990) 171 CLR 538 at 564-565.
36 (1987) AC 460 at 482, quoting Sim v Robinow (1892) 19 R 665 at 668 per Lord
Kinnear.
37 (1993) FLC 92-353.
38 (1993) FLC 92-353 at 79,728.
39 (1993) FLC 92-353 at 79,728.
40 [1990] HCA 55; (1990) 171 CLR 538 at 554.
41 [1990] HCA 55; (1990) 171 CLR 538 at 566.
42 (1993) FLC 92-353 at 79,728.
43 [1990] HCA 55; (1990) 171 CLR 538 at 566.
44 (1993) FLC 92-353 at 79,729.
45 (1993) FLC 92-353 at 79,744.
46 See, for example, Sterling Pharmaceuticals Pty Ltd v The Boots Co
(Australia) Pty Ltd [1992] FCA 72; (1992) 34 FCR 287.
47 [1937] HCA 1; (1937) 56 CLR 277 at 281.
48 See Moore v Inglis (1976) 50 ALJR 589; 9 ALR 509 and, on appeal, (1976) 51
ALJR 207.
49 See McHenry v Lewis (1882) 22 Ch D 397; Peruvian Guano Company v Brockwoldt
(1883) 23 Ch D 225; Hyman v Helm (1883) 24 Ch D 531;
Cohen v Rothfield (1919)
1 KB 410; Ionian Bank Ltd v Couvreur (1969) 1 WLR 781; cf Australian
Commercial Research and Development
Ltd v ANZ McCaughan Merchant Bank Ltd
(1989) 3 All ER 65.
50 Note, however, the statement in the majority judgment in Voth v Manildra
Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538
at 558, to the
effect that Australian
courts should not concern themselves with "an assessment of the comparative
procedural or other
claims of
the foreign forum".
51 Section 93A(2) of the Act relevantly provides that "in an appeal the Family
Court ... has power to draw inferences of fact and,
in its discretion, to
receive further evidence upon questions of fact".