FAMILY COURT OF AUSTRALIA
YEO & HUY (NO. 2)
 FamCA 541
FAMILY LAW – PROPERTY – where the husband seeks a stay on the basis that
Australia is a clearly inappropriate forum – where the wife previously commenced
proceedings in Taiwan for domestic violence, parenting orders and spousal
maintenance – where the domestic violence proceedings were dismissed and judgment
is reserved in respect of the remaining issues – where the wife commenced
proceedings in Australia for property orders after she had commenced proceedings in
Taiwan – where neither party lives in Australia – where all the parties’ property,
excluding a sum of money in an Australian bank account which is the subject of
significant dispute between the parties and a bond lodged with the Queensland
Treasury Corporation with the parties’ visa applications, is in Taiwan – where the
majority of the witnesses and other evidence regarding the parties property, including
the sum of money in the Australian bank account, is in Taiwan – where evidence
relevant to property proceedings in this Court has been heard by the Taiwanese Court
– whether Australia is a clearly inappropriate forum – where the property proceedings
in this Court are vexatious and oppressive in the Voth
sense – where the
property proceedings permanently stayed. Evidence Act 1995
(Cth) Family Law Act 1975
Family Law Rules 2004 (Cth) CSR Ltd v Cigna Insurance Australia Ltd
(1997) 189 CLR 324 Gilmore & Gilmore
(1993) FLC 92-353 Henry v Henry
(1996) 185 CLR 571 Mineral Commodities Ltd v Promet Engineers (Africa) Pty Ltd
 FCA 30 Voth v Milandra Flour Mills
(1990) 171 CLR 538
COUNSEL FOR THE APPLICANT:
SOLICITOR FOR THE APPLICANT:
COUNSEL FOR THE RESPONDENT:
SOLICITOR FOR THE RESPONDENT:
The Initiating Application filed by the wife on 30 June 2011, and subsequently
amended on 21 July 2011, be permanently stayed.
In the event that the parties are unable to agree in writing within 21 days of
today what costs order, if any, might be made, of and incidental to these
Each party file within a further 14 days written submissions in respect of
Unless either party otherwise therein contends to the contrary, that issue
be determined in chambers without the necessity of further appearance
In the event that the parties reach agreement in writing on the issue of costs,
they be at liberty to file jointly, minutes of consent via email to … .
IT IS NOTED
that publication of this judgment by this Court under the pseudonym Yeo & Huy (No. 2)
has been approved by the Chief Justice pursuant to s 121(9)(g) of
the Family Law Act 1975
FAMILY COURT OF AUSTRALIA AT BRISBANE
FILE NUMBER: BRC5627 of 2011
REASONS FOR JUDGMENT
On 30 June 2011, the wife filed in this Court an Application for settlement of property pursuant to s 79 of the Family Law Act 1975
(“the Act”). That Application was filed about seven months after the wife had commenced proceedings in Taiwan for a divorce and for custody and maintenance.
The husband seeks a stay of the Australian proceedings in this Court, asserting that Australia is a clearly inappropriate forum (see Voth v Milandra Flour Mills
(1990) 171 CLR 538; Henry v Henry
(1996) 185 CLR 571).
A STAY SHOULD BE ORDERED
I am cognisant of what the plurality in Voth
said at 565 in respect of the Reasons to be given in a matter such as this:
As regards [a forum non conveniens
application] and subject to one qualification, we respectfully agree with the substance of the advice contained in the speech of Lord Templeman in Spiliada
(at 465), namely, that the primary judge should “be allowed to study the evidence and refresh” his or her memory of the relevant law “in the quiet [of his or her Chambers] without expense to the parties”; that he or she should not be burdened by unhelpful reference to other decisions on other facts; and “that submissions will be measured in hours and not days”. The qualification is that we think that, in the ordinary case, counsel should be able to furnish the primary judge with any necessary assistance by a short, written (preferably agreed) summary identification of relevant connecting factors and by oral submissions measured in minutes rather than hours. There may well be circumstances in which the primary judge may conclude that it is desirable to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors and explaining why the local forum is or is not a clearly inappropriate one. Ordinarily, however, it will be unnecessary for the primary judge to do
more than briefly indicate that, having examined the material in evidence and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens
(ie “clearly inappropriate forum”) grounds.
Obeying that imperative: I am of the view that, having taken account of the facts and the competing written and oral submissions, this Court is a clearly inappropriate forum and the proceedings should be permanently stayed.
I propose, however, with the greatest respect to their Honours, to be a little more prosaic in my Reasons.
APPLICATION IN A CASE FILED 8 MARCH 2012
After I had reserved judgment in the husband’s application, the wife filed on 8 March an Application in a Case, supported by an affidavit by her instructing solicitor, to re-open proceedings so as to rely upon further evidence. That evidence comprised correspondence between the husband’s solicitors and the solicitors who act for the wife in these proceedings, who were then acting as the representatives of the wife’s mother in proceedings in the Queensland Supreme Court. All of the correspondence was marked “without prejudice, save as to costs”.
Given that the correspondence was, on its face, potentially subject to privilege (s 131, Evidence Act 1995
(Cth)), I did not read the documents prior to the hearing of the Application in a Case for hearing before me. At that hearing it became apparent that two of the three letters which the wife sought to rely upon, were in fact annexed to an affidavit of the wife in the substantive proceedings. In those proceedings, I had excluded those paragraphs, and the correspondence they cross-refer to, on the basis that the documents were privileged. The third letter is part of the same settlement negotiations and also privileged.
The wife’s Application in a Case was dismissed, for separate Reasons given at the time, and the husband’s costs of it ordered to be paid by the wife.
HISTORY OF THE STAY PROCEEDINGS
The parties married in Taiwan in June 2002. They have three children, a daughter born in February 2003 and twins born in April 2007.
For present purposes, it can be accepted that separation occurred on 19 August 2010 when, after a period in Australia, the wife and children left Australia for Taiwan. During the approximate eight years of the parties’ marriage, they lived in Taiwan, save for a period of about a week in late May 2008 and a period of seven months immediately prior to the wife’s departure for Taiwan at which time the parties resided in Australia.
Shortly after returning to Taiwan, the wife instituted proceedings for domestic violence. Those proceedings were dismissed on 5 November 2010 and the wife’s appeal against that dismissal was also dismissed on 12 April 2011.
In November 2010, the wife commenced proceedings in Taiwan for divorce, custody and maintenance. The wife commenced employment in Taiwan at about the same time. In January 2011, the wife sought an order for “non-party discovery of information relating to the husband’s financial affairs”. An order to that effect was made by a court in Taiwan on 19 January 2011.
Controversy surrounds the deposit of $1.7 million into term deposits in Australia. Those term deposits are in the name of the wife’s mother. The husband says that his mother loaned him that sum. The wife appears to assert that this sum was a gift provided so as to incentivise the wife to live in Australia, the money representing an amount upon which the wife could draw to buy a house and pay for necessary expenses.
Proceedings were instituted in the Supreme Court of Queensland initiated by the husband in respect of this sum. Orders were made by consent in that court on 11 July 2011 declaring that the wife’s mother holds the moneys on trust for both of the parties and restraining the mother from dealing with the money.
There are no current proceedings in the Queensland Supreme Court in respect of the money or otherwise. It is to be noted that the proceedings in that court were joined between the husband, the wife’s mother and the National Australia Bank. The wife was not a party to those proceedings.
Apart from the money just mentioned, and a bond of $750,000 deposited with the Queensland Treasury Corporation per the requirements of the parties’ visa applications, all of the property of the parties or either of them, is situated in Taiwan. By reference to the wife’s financial statement that property comprises:
• A property owned by the wife valued at $349,200 (subject to a
mortgage in the wife’s name of $273,000); and
• Two motor vehicles with a combined value of $55,000;
The husband’s version (leaving aside the Australian monies to which reference has just been made) is that the property of the parties or either of them consists of:
• Three properties in Taiwan with a combined value of $376,666; • $26,500 in Taiwanese bank accounts; • A motor vehicle valued at $2,666.
The husband deposes to having had to sell his share portfolio in Taiwan in April 2011 in order to pay legal fees associated with the Taiwanese proceedings.
It ought be noted that, if the husband’s assertion regarding the $1.7million is made out (whether in proceedings in Australia or Taiwan) all of the moneys deposited in the various term deposits are owed to the husband’s mother. The net result would be that all of the property of the parties, excluding the bond with the Queensland Treasury Corporation, would be in Taiwan.
The parties appear to accept that matrimonial law in Taiwan is a fault based system with “fault grounds” forming the foundation for an application for a divorce.
The husband argues that the domestic violence proceedings in Taiwan were part of a plan by the wife to establish the requisite ground (presumably “cruelty” or something similar). In that respect he points to the fact that, within a week of the dismissal of the wife’s appeal against the dismissal of her domestic violence application, the wife asserted desertion as a (new) ground for the divorce.
Importantly, it is accepted as a fact as between the parties, that in the absence of a divorce decree in Taiwan, the Taiwanese Court would merely declare existing ownership rights with respect to property – that is, the Court would not effect any alteration of those rights.
The wife argues that this is a crucial matter; in the absence of a divorce decree, the wife asserts that she is precluded from the equivalent of Australian orders with respect to settlement of property in Taiwan. She argues that this is a central matter pertaining to this Court exercising its discretion to permit a continuation of the property proceedings in this country.
At the commencement of the proceedings before me, the wife’s counsel sought to give an undertaking on behalf of her client (who was in Taiwan) that the wife would take all necessary steps to discontinue the current proceedings in Taiwan.
The wife’s proceedings have been on foot in this country since June of 2011. She amended her Initiating Application a month later and filed, at the same time, an Application in a Case (when proceedings were in the Federal Magistrates Court) for interim orders, including orders for partial property settlement (“Hogan Order”) and interim spousal maintenance. The husband filed a Response to that Application which forms the basis of the current proceedings seeking a permanent stay of the proceedings in this country and costs. Subsequent to the transfer of the proceedings to this Court, procedural orders were made requiring the parties to file affidavits and outlines of argument.
At no time during the currency of the proceedings has the wife raised any suggestion of the undertaking just referred to. The husband had not received
notice of any such intention, or the terms of any such undertaking, until the morning of the hearing before me.
In an similar vein, the husband through his counsel gave undertakings as follows:
In the event that this Honourable Court permanently Stays the Wife’s Application for a Property Settlement in Australia (upon the expiration of any rights of Appeal that the Wife may have in Australia) I hereby undertake and agree to be bound until excused by this Honourable Court as follows:
So far as it is in my power, to abide by any decision, declaration or order of the Family Court, Taouyuan District Court of Taiwan (subject to any rights of Appeal I have may have) that relates to any property or monies in Australia (including but not limited to the Government Bond monies and the AU$1,700,000.00 investment monies) and to do all such acts or things as may be necessary on my part to be done to carry any such decision, declaration or order into effect; and
To do all acts and things including signing all documents (together with my Wife) so as to release the sum of $50,000.00 to myself and the sum of $50,000.00 to my Wife (from the Government Bond investment proceeds and interest) when they become available for the use of my Wife and I for the necessary living expenses and legal costs in relation to the Taiwanese proceedings.
However, in contrast to the undertakings given on behalf of the husband, the undertaking purportedly given on behalf of the wife does not on its face relate to matters wholly within the power of the wife. In particular, there is no evidence of the local requirements in Taiwan as to what may or may not be done with respect to discontinuance or withdrawal of the proceedings in circumstances where proceedings have been heard and a decision of the court is reserved.
Certainly, the withdrawal of the proceedings would not be with the consent of the husband. The husband’s position with respect to the divorce is that he is desirous of the parties effecting a reconciliation.
As will emerge, the undertakings of both parties do not ultimately weigh significantly in the exercise of discretion.
WHAT PRINCIPLES GOVERN THE RESULT?
The majority in Henry
, in reaffirming the test set out in Voth
, held (at 587):
… 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”. 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
of relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance”. 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’”. [Footnotes removed]
In referring to the post-Voth
decision of the Full Court of this Court in Gilmore & Gilmore
(1993) FLC 92-353, the plurality in Henry
went on to hold (at 589-591):
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”. 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 …
There appears to be an assumption in Gilmore
that the duplication of proceedings in another country is not, of itself, relevant to the question of whether Australia is a clearly inappropriate forum …
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 for the factual issues to be determined in the other jurisdiction. 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.
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”,
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. 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, 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.
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.
In my view, what emerges is that there is nothing as a matter of principle
that prevents the bifurcation of proceedings emanating from a single controversy with part of the proceedings being heard in one country and another part in another country, assuming that doing so causes no offence to international comity.
Frequently, though, there can, as a matter of discretion,
be seen to be strong reasons for preventing the bifurcation of proceedings in such a manner. In the exercise of the discretion, an important consideration is the nature of each of those differing aspects of the same controversy and the remedies sought and available in respect of each. The evidence needed in support of those differing aspects of the controversy, and the availability of mutual recognition of each Court’s orders in each respect are, as the High Court has made clear, relevant matters.
Is Australia a Clearly Inappropriate Forum?
The non-exhaustive list of matters relevant to the application of the “clearly inappropriate forum test” identified in Henry
(at 592-293) is as follows:
Whether each Court will recognise the other’s orders and decrees.
Which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
The order in which the proceedings were instituted.
The stage at which the proceedings have each reached.
The costs that have been incurred by the parties.
The connection with the parties and their marriage with each of the jurisdictions.
The issues on which relief might depend in each of the jurisdictions.
The resources of the parties and their understanding of language enabling the parties to participate in the respective proceedings on an equal footing.
In emphasising the non-exhaustive nature of those matters, the majority held that “ … 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” (at 594).
As the High Court has made plain, the relevant factors should not be weighed against each other; a trial judge’s focus should be “upon the inappropriateness of the local court and not the appropriateness of the suggested foreign forum” (Voth
at 565; see also Puttick (As Executor of the Estate of Puttick) v Tenon Ltd (Formerly Called Fletcher Challenge Forests Ltd)
(2008) 238 CLR 265at ). The process is not to weigh the factors which point to the making of a stay against the factors which point away from such action; rather, the objective is to consider whether there are sufficient factors to indicate that the forum is clearly inappropriate, in which case proceedings in that forum should be stayed.
In terms of whether any Orders made by this Court with respect to the parties’ property would be recognised by the Taiwanese Court, the husband’s Taiwanese lawyer, Mr Chen, deposes that:
Taiwan as a country has the territorial right over its citizens to make Judgment for its citizens. This territorial right is not taken lightly. I cannot say that an order made by this Honourable Court will be recognized by a Court in Taiwan.
The Husband has told me that the majority of the matrimonial assets is situated in Taiwan and was acquired prior to the marriage. I am therefore of the opinion that the Taiwanese Court will not recognize any Judgment made by this Court which is contrary to the laws in Taiwan governing matrimonial matters.
Whilst counsel for the wife submits that there is “no evidence” to support the contention that Orders made by this Court will not be recognised by the Taiwanese Court, the wife does not offer any evidence contrary to that provided by Mr Chen and indeed, did not challenge Mr Chen’s expertise or, otherwise, his evidence.
The parties, and in particular the wife, have a significant connection with Taiwan. The wife has spent a total of only 8 months in Australia and has not returned to Australia since she left with the parties’ children in August 2010.
The wife works in Taiwan and is living in a home she purchased following her return in late-2010.
Neither the husband, nor the wife (or any of their children) are Australian citizens. The wife deposes to the fact that, upon travelling to Australia, she “had to leave my parents, my relatives and my friends…”. The husband has continued to make trips to Australia although he maintains several properties, bank accounts and a motor vehicle in Taiwan and records his place of residence as the former matrimonial home in Taiwan. Neither party speaks English proficiently; each has requested translators for these proceedings.
There is a suggestion by the wife that she intends to return to Australia with the parties’ children. The evidence points against this: the wife owns a home in Taiwan; works in Taiwan; the children attend school and day-care in Taiwan; the wife has, having returned to Taiwan, contravened the requirements of her visa; and, the wife has informed the Taiwanese Court that she does not intend to return to Australia.
It is submitted on behalf of the husband that “[s]hould property proceedings be heard by the Taiwanese Court subsequent to a Divorce Order being granted, it is my opinion that on average the costs of property proceedings until settlement is approximately…AUD $4,285.00 – AUD$5,714.00…”. In contrast, the husband’s Australian solicitor deposes that the husband’s “further legal costs for a final property trial in Australia would be between $130,000 and $140,000.”
Those costs factor in “the need to translate documents, evidence of witnesses and transcripts (eg) of the Taiwan proceedings…”. The husband deposes to having obtained an estimate of $15,762 for translating into English all of the Taiwan legal documents. Those expenses would obviously not be necessary if the proceedings occurred in Taiwan.
There is nothing to suggest that these expenses and inconveniences are counterbalanced by similar expenses and inconveniences if the proceedings were to proceed in Taiwan; the majority of the relevant witnesses and documentary evidence are located in Taiwan and any evidence required from Australia would, ostensibly, be documentary in nature (pertaining to the amount of the bond and the NAB account) and simple to obtain (see e.g., Mineral Commodities Ltd v Promet Engineers (Africa) Pty Ltd
 FCA 30).
It is accepted between the parties that if the wife is not granted a divorce by the Taiwanese Court and the wife was to subsequently seek property orders, the Taiwanese Court would merely declare existing ownership rights with respect to the parties’ property. If the wife is successful in obtaining a divorce, it is accepted that Taiwanese law provides that, as a general rule, the property of the parties will be equally distributed between them.
That factor is certainly relevant to a consideration of whether Australia is a clearly inappropriate forum. But, the fact that a party to proceedings can obtain a better result in this country as opposed to another is not, in and of itself, determinative of the forum non conveniens
issue (see e.g., Henry
There have already been significant proceedings in Taiwan. The wife commenced proceedings in Taiwan for domestic violence, said to have occurred in Australia, in mid-2010. Following the dismissal of those proceedings (including the dismissal of an appeal by the wife), the wife commenced proceedings in Taiwan for divorce, custody and maintenance. Those proceedings have, on the unchallenged evidence of Mr Chen, involved five separate hearings, the filing of multiple documents and the giving of evidence by various witnesses. Significantly, judgment in respect of those proceedings is presently reserved.
The wife commenced proceedings for property settlement in this Court, whilst proceedings commenced by her
were pending in Taiwan. (In that respect, reference is again made to the statements of the plurality in Voth
It is submitted on behalf of the wife that the property proceedings in this Court have little nexus with the proceedings in Taiwan; that is, these proceedings are not “with respect to the matter in issue” in the Taiwanese Court. There is, it is submitted, no issue of international comity or potential for embarrassment if the orders sought by the wife were to be made by this Court “because…the [Taiwanese Court] is only asked to divorce and consider parenting and not property issues. There is no possibility of a conflicting judgment.”
Counsel for the husband contends to the contrary that, “the matter in controversy [in each jurisdiction] is the breakdown of the matrimonial relationship.” In support of this contention, counsel refers to Henry
(at 579 – 580):
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.
In my view, the proceedings for property settlement in this Court and the proceedings in Taiwan are part of the same controversy. The evidence plainly demonstrates that the proceedings in each country “arise out of the same substratum of fact” (CSR Ltd v Cigna Insurance Australia Ltd
(1997) 189 CLR 324 at 401).
As the plurality in Henry
observed, such a finding renders the proceedings in this Court prima facie “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’”. In support of the contention that these proceedings are vexatious and oppressive, counsel for the husband points to the unchallenged evidence that the wife sought and obtained an order for “non-party discovery of information regarding the husband’s financial affairs” in the Taiwanese Court, and has relied on the information obtained pursuant to those orders in these proceedings.
Further, the wife has, it is submitted, “put [the allegations of domestic violence] in issue in the Australian proceedings” notwithstanding the fact that the Taiwanese Court has made a determination in respect of the wife’s allegations, and an appeal against that determination by the wife was unsuccessful.
The $1.7million earlier referred to is subject to significant dispute between the parties and the evidence of the husband’s mother, who lives in Taiwan, is undoubtedly highly relevant to any determination of that dispute. In that respect, Mr Chen’s unchallenged evidence is that the Taiwanese Court has already heard evidence from the wife, the husband and his mother regarding that sum. Further, Mr Chen deposes to the wife having filed written submissions in the Taiwanese Court on 24 August 2011 “regarding the treatment of the [$1.7million].”
It is submitted on behalf of the wife that “[e]vidence of a similar nature can be raised for a variety of purposes…The fact that there may be some similar evidence does not make Australia an inappropriate forum.” So much might, of itself, be accepted. But, that is far from the position here.
I am of the view that the proceedings in this Court 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’”. I am satisfied that this Court is a clearly inappropriate forum to hear the wife’s
property proceedings and that a permanent stay of these proceedings is in the interests of justice.
An order for costs is sought in the husband’s Response.
It might be thought that the evidence of the parties’ financial circumstances before the Court and the fact that the wife can be seen to have been wholly unsuccessful might point to an order that the wife pay the husband’s costs.
However, as I said at the hearing of the wife’s Application in a Case, I consider I ought give the parties the opportunity to be heard on that issue if they cannot agree. Each agreed at that time that this could occur through written submissions and a consideration of the issue in chambers.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the
reasons for judgment of the Honourable Justice Murphy delivered on 20 March
Date: 20 March 2012
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