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Kornfeld & Wehinger [2023] FedCFamC1F 817 (26 September 2023)

Tuesday 28th November 2023

By: Thomas Jenkins

Both parties were British Citizens

Kornfeld & Wehinger [2023] FedCFamC1F 817 (26 September 2023)

In this Family Court Judgment, Williams J determined Australia was the clearly inappropriate jurisdiction to determine financial and divorce proceedings between the parties. This case highlights a significant jurisdictional dilemma; the Wife’s position was that divorce and property matters should be conducted in England and that parenting matters should be decided in Australia. The Husband contended that all issues should be determined by the Federal Circuit and Family Court of Australia.

Both parties were British Citizens.

The Husband was born in England and was residing there at the time of the hearing. The Wife was a British and Australian Citizen, having been born in England but raised in Australia. The parties had lived in both jurisdictions at different stages of their lives. There were two children of the relationship, aged 11 years and 9 years. Since 2016, the Wife had lived in Australia with the two children and it was common ground that the children would continue living in Australia. Williams J noted the irony that neither party sought for the proceedings to take place where they lived.

The majority of the matrimonial asset pool was located in the United Kingdom, which included two properties, one of which is the former matrimonial home, pension entitlements of the Husband and the Husband’s interest as a beneficiary in the M Trust.

It was agreed that both the UK and Australia had jurisdiction to deal with divorce and property applications. It was also agreed (at the commencement of the trial) that the parenting proceeding should take place in Australia.

Proceedings were initiated in Australia and the United Kingdom as follows:

  1. February 1, 2023: The Wife filed for divorce in the English Court and indicated she would also seek financial settlement orders there. It is useful to note that unlike in Australia, applications for financial remedies are ancillary to and when sought, included within the overarching divorce proceeding in the United Kingdom.   
  2. February 15, 2023: The Wife's lawyer in England served the Husband with the English Divorce Application.  
  3. March 1, 2023: The Husband filed his response to divorce in the English Court. This document accepted the English Court had jurisdiction for divorce. He filed his Australian Initiating Application the same day seeking parenting and property orders as well as a restraint on the Wife from commencing, prosecuting, or progressing any suit, claim or proceeding to divide their property in any jurisdiction other than Australia.
  4. April 6, 2023: The Wife filed her Response in the Australian Court, seeking the Husband’s proceeding in the Australian Court be stayed pending the determination of her divorce and financial application in England.
  5. April 26, 2023: The Husband filed an Application for Divorce in Australia.

Prior to hearing this matter, the Husband applied to the English Family Court for an interim stay of the English Proceeding. The interim stay application was dismissed and a further Court date in that jurisdiction was pending at the time of hearing.

The test to be determined by Williams J was whether the Australian Court is a clearly inappropriate forum to hear the parties divorce and financial applications as per the case of Voth & Manildra Flour Mills Pty Ltd [1990] HCA. A court is clearly an inappropriate forum 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 determined by the Australian Court that Australia was the clearly inappropriate forum based on the following reasons:

  1. The parenting dispute to be heard before the Australian Court was limited in scope. The Husband’s application related to the children spending time with him both in Australia and the UK, which was inherently limited by the children’s schooling commitments and ability to travel to the UK only during Australian school holidays. The parties had managed this since 2016 without Court intervention.
  2. The parties engaged a single expert to provide evidence of the enforcement of Australian Financial Orders, including lump sum payments, maintenance and pension splitting in the United Kingdom. This evidence and the evidence of the parties’ English solicitors indicated only a lump sum payment would be readily enforceable, while orders relating to property transfer, maintenance and pension splitting would require a further application in the UK to implement; this would likely be expensive and time consuming for the Wife.
  3. Although Counsel for the Husband submitted it was desirable for one court to effectively provide for complete resolution of all matters involved in the parties’ controversy following the breakdown of their marriage, in consideration of the difficulty of enforcing financial orders in the UK, no jurisdiction could provide a complete resolution.
  4. The granting of the Husband’s application for divorce in Australia, would impact the Wife’s ability to apply for financial orders in the United Kingdom. Furthermore, the Husband had accepted the English Court had jurisdiction in relation to divorce on 1 March 2023 and did not file his Application for Divorce in Australia until 26 April 2023. It was never explained by the Husband why he applied for Divorce in Australia or the reason for his delay in ultimately doing so.

Consequently, Justice Williams stated “the continuation of financial and divorce proceedings in this court would clearly be ‘oppressive, in the sense of seriously and unfairly burdensome... and vexatious in the sense of productive of serious and unjustified trouble’ for the wife to conduct proceedings in Australia about assets located in the UK”

Kornfeld & Wehinger provides useful authority for those dealing with jurisdictional contests between the Australian and English Family Courts. Practitioners should be particularly cognisant of the Court’s willingness to segregate parenting and financial proceedings between the two countries if the circumstances require it.

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