Henry v Henry

High Court of Australia|1996-04-17|Before: Brennan CJ, Gummow JJ, Ross-Jones J, Philp JA

High Court of Australia Brennan CJ Dawson, Gaudron, McHugh and Gummow JJ Henry v Henry (FC 96/012) [1996] HCA 51

Set aside pars 1 and 7 of the order of the Full Court of the Family Court and in lieu thereof order the appellant's cross-appeal to that Court so far as it relates to the refusal by Ross-Jones J to stay the proceedings for dissolution of the marriage of the parties and the failure by Ross-Jones J to make an order for costs in favour of the present appellant be allowed with costs.

Remit the matter to the Full Court of the Family Court to determine the course proceedings should now take in accordance with the judgment of this Court including the determination of what, if any, order should be made as to the costs of the proceedings before the Judicial Registrar and before Ross-Jones J.

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.

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 Co 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?

(1990) 171 CLR 538. 2. Voth (1990) 171 CLR 538 at 564, 572, cf 590. 3. (1988) 165 CLR 197. 4. Voth (1990) 171 CLR 538 at 552, 572.

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 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.

Le Mesurier v Le Mesurier [1895] AC 517 at 540-541 Lord Advocate v Jaffrey [1921] 1 AC 146 Attorney-General (Alberta) v Cook [1926] AC 444 Ainslie v Ainslie (1927) 39 CLR 381 at 391-392 2. [1953] P 135 at 149.

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 would appear 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. 1. (1990) 76 DLR (4th) 379 at 387.

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 Corporation 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.

[1987] AC 460, esp at 477-478, 482-484, per Lord Goff of Chieveley. 2. Domicile and Matrimonial Proceedings Act 1973 UK, Sch 1, par 9(1). 3. [1988] AC 92 at 108-109.

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 ?

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 clearly inappropriate 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. This is not a case of service ex juris. It is a case where the jurisdiction of the Family Court conferred by statute has been regularly invoked. There is no ground which would justify a refusal to exercise that jurisdiction save that which was advanced in Voth . 1. (1990) 171 CLR 538 at 559-560.

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 be instituted under this Act if, at the date on which the application for the decree is filed in a court, either party to the marriage:

If the Family Court is seized of jurisdiction under the subsection, Voth affords the only legitimate ground for declining to exercise it.

The factors relevant to show that the Family Court is a " clearly inappropriate forum "

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, for that 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. If a distinction between the two tests is to be preserved, it is necessary to focus precisely on the essential issue, namely, "on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum" - in this case, in the Family Court. It is impermissible to resolve the question by holding that only one court should exercise the jurisdiction to determine the proceedings, that a foreign court is the appropriate forum or the more appropriate forum, and thus to conclude that the selected forum is a clearly inappropriate forum. Reduced to its fundamentals, that is the appellant's argument in the present case, but it is inconsistent with the majority judgment in Voth [13] and the judicial consensus that was there achieved. 1. Voth (1990) 171 CLR 538 at 558 2. (1990) 171 CLR 538 at 559.

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 a relevant factor in deciding whether or not the local forum is a clearly inappropriate one. If the alternative source of relief were not a relevant factor, the declining of jurisdiction by the selected forum would deny the prospect of any relief to the party seeking to enforce a legal right. That could be contemplated only in an extreme case. 1. Voth (1990) 171 CLR 538 at 558

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.

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:

A party who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise.

The power to stay proceedings regularly commenced is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are "oppressive", "vexatious" or "an abuse of process". Those adjectives are to be construed liberally, in the sense already referred to [16] .

The fact that the balance of convenience favours another jurisdiction or that some other jurisdiction is a more appropriate forum, will not justify a stay of the action.

In the application of the above principles the discussion by Lord Goff in Spiliada of relevant "connecting factors" and "legitimate personal or juridical advantage" provides valuable assistance.

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".

I am in respectful agreement with these points provided the fifth point is understood in the context in which it appears in the judgment. The Court explained the fifth point by reference to a quoted passage from the majority judgment in Voth [17] : We agree with Gaudron J 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. 1. (1993) 110 FLR 311 at 318; 16 Fam LR 285 at 291; [1993] FLC 92-353 at 79,728. 2. Gilmore (1993) 110 FLR 311 at 31716 Fam LR 285 at 290; [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) 171 CLR 538 at 555-557 3. (1990) 171 CLR 538 at 566.

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.

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 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.

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.

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.)

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 inquire 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.

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.

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.

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.

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 per cent of the balance of moneys held by him in certain Swiss bank accounts.

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.

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

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.

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.

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.

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

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".

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.

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.

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.

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".

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

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.

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:

In the case of proceedings between parties to a marriage with respect to property and maintenance, there is jurisdiction if either is an Australian citizen, is ordinarily resident in Australia or is present in Australia at the time the proceedings are commenced [18] . 1. Sub-sections (4)(a) and (4A) of s 39 of the Act.

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.

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.

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

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] asserts that 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. 1. (1990) 171 CLR 538. 2. (1993) 110 FLR 311; 16 Fam LR 285; [1993] FLC 92-353.

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

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.

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] .

In Marriage of Henry (1995) 19 Fam LR 227 at 238; [1995] FLC 92-602 at 82,009. 2. In Marriage of Henry (1995) 19 Fam LR 227 at 238; [1995] FLC 92-602 at 82,009.

The general principle governing a stay of proceedings in favour of a foreign forum

In Voth v Manildra Flour Mills Pty Ltd [23] , this Court confirmed its rejection, in Oceanic Sun Line Special Shipping Co Inc v Fay [24] , of the forum non conveniens principle as stated by the House of Lords in Spiliada Maritime Corporation 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] .

(1990) 171 CLR 538. 2. (1988) 165 CLR 197. 3. [1987] AC 460. 4. Spiliada [1987] AC 460 at 478, per Lord Goff of Chieveley. 5. Spiliada [1987] AC 460 at 477See also Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 557where it is observed that in "the Spiliada formulation the "natural forum" and "more appropriate forum" are treated as interchangeable expressions". 6. Spiliada [1987] AC 460 at 478, quoting The "Abidin Daver" [1984] AC 398 at 415. 7. Spiliada [1987] AC 460 at 478 8. [1988] AC 92 at 108. 9. de Dampierre [1988] AC 92 at 102.

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] .

(1990) 171 CLR 538 at 564-565. 2. Oceanic Sun (1988) 165 CLR 197 at 247. 3. [1987] AC 460 at 477-478, 482-484. 4. Voth (1990) 171 CLR 538 at 564-565 5. Spiliada [1987] AC 460 at 482, quoting Sim v Robinow (1892) 19 R 665 at 668, per Lord Kinnear.

Earlier application of the principle in Family Court proceedings

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:

A party who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise.

The power to stay proceedings regularly commenced is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are "oppressive", "vexatious" or "an abuse of process". Those adjectives are to be construed liberally, in the sense already referred to.

The fact that the balance of convenience favours another jurisdiction or that some other jurisdiction is a more appropriate forum, will not justify a stay of the action.

In the application of the above principles the discussion by Lord Goff in Spiliada of relevant "connecting factors" and "legitimate personal or juridical advantage" provides valuable assistance.

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".

(1993) 110 FLR 311; 16 Fam LR 285; [1993] FLC 92-353. 2. Gilmore (1993) 110 FLR 311 at 31816 Fam LR 285 at 291; [1993] FLC 92-353 at 79,728.

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.

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] .

Gilmore (1993) 110 FLR 311 at 31816 Fam LR 285 at 291; [1993] FLC 92-353 at 79,728. 2. (1990) 171 CLR 538 at 554. 3. Oceanic Sun (1990) 171 CLR 538 at 566.

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.

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] .

Gilmore (1993) 110 FLR 311 at 31816 Fam LR 285 at 291; [1993] FLC 92-353 at 79,728. 2. Oceanic Sun (1990) 171 CLR 538 at 566.

The relevance of proceedings in another jurisdiction

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 such cases, 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. 1. Gilmore (1993) 110 FLR 311 at 32016 Fam LR 285 at 293; [1993] FLC 92-353 at 79,729. 2. Gilmore (1993) 110 FLR 311 at 33916 Fam LR 285 at 313; [1993] FLC 92-353 at 79,744.

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.

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.

See, eg, Sterling Pharmaceuticals Pty Ltd v Boots Co (Australia) Pty Ltd (1992) 34 FCR 287

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.

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.

See Moore v Inglis (1976) 50 ALJR 5899 ALR 509 and, on appeal, (1976) 51 ALJR 207. 2. See McHenry v Lewis (1882) 22 Ch D 397 Peruvian Guano Co v Bockwoldt (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[1969] 2 All ER 651cf Australian Commercial Research & Development Ltd v ANZ McCaughan Merchant Bank Ltd [1989] 3 All ER 65

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

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.

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

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.

Note, however, the statement in the majority judgment in Voth v Manildra Flour Mills Pty Ltd (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".

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

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.

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.

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.

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".

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.

(1995) 19 Fam LR 227

At a glance

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Judgment (115 paragraphs)

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Cases Cited (9)