Henry v Henry

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pierson & Romilly has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The court has listed this matter for the appellant to show cause as to why her appeal should not be summarily dismissed under s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) or s 102QAB of the Family Law Act 1975 (Cth) ("the Act") as failing to have any reasonable prospects of success. I note in that regard, a court hearing an appeal must act cautiously because at this early stage of the proceedings it does not have access to all of the material and submissions that would be available at a final hearing.
2. The appeal is against orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) dismissing an Initiating Application filed by the appellant on 10 December 2024 seeking orders in relation to the parties' property. The parties own properties in France and in Australia. Steps have been taken in France for some time to effect a division of the parties' property.
3. On 26 April 2019, Stevenson J permanently stayed property settlement proceedings commenced by the appellant on the ground that because of the litigation in France, Australia was a clearly inappropriate forum. An appeal against that decision was dismissed on 23 April 2020 and the High Court of Australia subsequently refused leave to appeal.
4. In dismissing the application, her Honour said:
   1. Turning to the summary dismissal application pursuant to section 102QAB(2). Taking the [appellant's] case at its highest, I am satisfied that she does not have a reasonable prospect of success for the following reasons. The Australian courts have previously ruled that although the final division of the parties' property could be resolved in either France or Australia, the proceedings should occur in France. A permanent stay was granted. The [appellant] exhausted the appeal process from that decision. There are proceedings on foot and listed in [mid-2025] in France, notwithstanding an appeal by the [appellant] of prior orders in those proceedings.
   2. There could be no doubt that the French courts are seized of the matter and are able to deal with the [Suburb C] property...

1. Many of the grounds of appeal and most of the submissions made today concern what the appellant alleges is a mischaracterisation of the proceedings in France by Stevenson J, the Full Court and the primary judge. In order to understand that contention, it is helpful to quote the following paragraph from the primary judge's reasons:
   1. [In] 2015, the parties were granted a divorce by the Court of First Instance of [Town E]. Further orders were made by the appointment of the President of the Departmental Chamber of Notaries to carry out the liquidation and division of the property interests that had existed between the parties. The [appellant] was given what has been termed "preferential allocation" of the [Suburb C] property in Australia and the property in [Region M]. The [appellant] appealed that decision. [In] 2017, the Court of Appeal of [City N] confirmed the judgment of the lower court. [In] 2019, a notary was appointed to act in the matter.
2. The complaint made by the appellant is that the second sentence of that paragraph is wrong and that no notary was appointed. The submission continues that it follows that at the time the proceedings were before Stevenson J and the Full Court there was no "application" for property settlement on foot in France and that Stevenson J and the Full Court were misled by submissions from the respondent to the contrary.
3. They are all matters that, if established, might show error in those judgments of Stevenson J and the Full Court. But this is not an appeal from those judgments. They remain binding and the decisions stand until set aside. It follows that the primary judge was entirely correct to start from the premise that the proceedings in Australia had properly been permanently stayed.
4. Returning, however, to the facts, it emerges from the paragraphs already quoted that in 2019 a notary was in fact so appointed. The orders that were made by the Court of First Instance of Town E clearly relate to the parties' property even if they cannot be described as a formal application to a court. Her Honour dealt with the submissions in the following paragraphs:
   1. The [appellant] submits that the court was misled because there were no proceedings on foot in France at the time the matter was before the Australian court. As I understand it, what was occurring in France was that the matter had been referred to a notary, who would pursue with the parties whether or not an amicable agreement could be reached. That initial referral was made [in] 2015. That is, steps in that process had been taken.
   2. The final step of an application for division of property had not occurred as no application had been filed. I am not satisfied that the court was misled by the [respondent], nor his legal representative. Stevenson J noted at paragraph 35 as follows:

The evidence is that the division of the parties' property is a further step in the French proceedings, ... French courts have made orders for "preferential allocation" ...

...

1. [The appellant] declined to participate with the notary, and she agreed during the course of submissions that that was the case. The [appellant] relies on these matters with respect to the notary to support that there were no proceedings in France at the time there were proceedings before the Court in Australia.
2. The referral was made to a notary by order of the court in [Town E] in 2015, and those orders survived an appeal by the [appellant]. The appeal decision was handed down in March 2017. That the parties did not take up the referral until later does not mean that the court in France had not directed the parties to the next step in their litigation. The French proceedings had dealt with the divorce and given the parties the opportunity for an amicable settlement with the assistance of a notary. It is true to say that the final proceedings for property division were not applied for and that no orders had been made which divided the parties' assets.

1. This led to the finding at [29] that the appellant was attempting, in these proceedings, to relitigate matters that were dealt with in earlier proceedings. That finding has not been shown to be in error and indeed most of the grounds of appeal take issue with her Honour's reasons on the premise that her Honour found that property proceedings had commenced in 2015. A fair reading of her Honour's reasons indicates that that is not so.
2. However, her Honour was dealing with the position as it was at the time the matter was before her. It is without doubt that whatever had occurred in France until then, in early 2021 the respondent filed proceedings for division of property. They were listed in early 2025 and have been adjourned to mid-2025. The appellant has filed an appeal in France objecting to the jurisdiction. Her Honour found without challenge that, notwithstanding the outstanding appeal, the French court has moved to list the hearing of the property division. Whatever has happened in the past, the current position is that the French court, at the moment, is purporting to exercise jurisdiction over the property in Australia. It is well established that it is prima facie vexatious and oppressive to commence a second or subsequent action in Australia if an action is already pending with respect to that matter in another country (Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 at 591 (Dawson, Gaudron, McHugh and Gummow JJ)).
3. Taking those matters into account, as well as her Honour's finding that even if, in a technical sense, an application had not been made for division, the French courts were seized with the property dispute between the parties, her Honour's findings cannot be shown to be erroneous.
4. Neither the hearing before the primary judge nor this hearing is an opportunity simply to revisit the decision of Stevenson J and the Full Court. In saying so, it should not be assumed that those courts were misled. Indeed, there is the obvious point being that they were dealing with the substance of the matter and not necessarily with the particular descriptor. It follows that the grounds of appeal which deal with the earlier courts being misled and the primary judge's mischaracterisation of when the proceedings were commenced in France are misconceived. But, even if it was correct, the fact remains that such proceedings have now been commenced and are being heard in France.
5. The appellant also relies on new evidence and changes of circumstance, but they do not alter the fundamental fact that if she is to proceed with her property claim, there is a risk there would be conflicting orders from two different courts.
6. The appellant also has as a ground of appeal that there was a reasonable apprehension of bias arising from the conduct of the primary judge in that the primary judge accepted the respondent's submissions without evidence, allowed the respondent to contradict himself, ignored key evidence, mischaracterised the proceedings in France, refused to accept that the court had been misled, refused to allow the appellant to respond to incorrect findings, failed to engage with the appellant's submissions, pretended enforcement was a choice, allowed the property division to happen in France, granted a vexatious application, as well as other matters that could not possibly give rise to an apprehension of bias.
7. All of those are simply a judge doing his or her job which is to choose between competing positions of the parties. Even if that choice is made erroneously, it does not give rise to an apprehension of pre-judgement.
8. The reference to the vexatious proceedings order is this. In his Response in the primary proceedings, the respondent sought an order that the appellant be declared a vexatious litigant pursuant to s 102QB of the Act. The primary judge did not make such an order, rather her Honour made directions to prepare that matter for hearing. They are procedural orders. There is a question as to whether or not they are appealable decrees. But in any event, as interlocutory orders, they would require leave. There is no possibility whatsoever of leave being granted in relation to such unremarkable procedural orders.

1. I am comfortably satisfied that the appeal has no reasonable prospects of success and it is dismissed.
2. The appellant's Application in an Appeal was predicated on the appeal proceeding and is, accordingly, dismissed.

1. The appeal has been wholly unsuccessful. The respondent has sought an order for the payment of his costs in the sum of $6,442 which has been assessed in accordance with Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth. It is appropriate that in the circumstances there be an order for the payment of those costs, but it is also in the interests of justice that the payment of that sum take place on the determination of the property proceedings between the parties.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.