Henry v Henry S47/1995 [1995] HCATrans 218 (22 June 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S47 of 1995

B e t w e e n -

GERDA GERTRUD HENRY

Applicant

and

BARRY WALTER HENRY

Respondent

Application for special leave to appeal

BRENNAN CJ

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 1995, AT 10.40 AM

Copyright in the High Court of Australia

MR M.D. BROUN, QC: If the Court pleases, in this matter I appear with MS J.C. GIBSON for the applicant for special leave. (instructed by Schweizer & Co)

MR B.W. RAYMENT, QC: May it please your Honours, I appear with my learned friend, MR R.G. LETHBRIDGE, for the respondent. (instructed by Marshall Marks Kennedy)

BRENNAN CJ: Yes, Mr Broun.

MR BROUN: Your Honours, our submissions have been largely covered in our statement in support of the application and in the written submissions. Just to summarise them on the domicile question, we say that the trial judge and the Full Court looked through the wrong end of the telescope. Instead of adopting the traditional approach of looking at the facts and trying to assess or determine the intention from the assessment of the facts, the court looked first of all at the question of intention as deposed to by the husband, indeed from what we have called a self-serving way, and put, as it were, the background facts very much into the background, receding in their importance.

Perhaps this is the result of a misreading of section 10 of the Domicile Act which is quoted by the Full Court at page 90, that the intention a person must have in order to acquire domicile of choice in a country is the intention to make his home indefinitely in that country. Now that certainly focuses, as traditionally always did, on intention. But what has happened, it would seem, in this present case is, as we have set out in the written submissions and in the material in support of the application, the evidence of husband himself about his intention quite overrode or displaced any consideration - - -

GAUDRON J: He was accepted as a witness of truth. That, surely, was the end of the matter. One might well have come to the conclusion that he was not, but once you accept that he was a witness of truth, surely everything else is beside the point.

MR BROUN: We would submit that the assessment there none the less is still required to examine the facts because he was also a witness of truth about the number of days he had been in Australia prior to the commencement of the proceedings, 15 days, and indeed he left Australia before the proceedings had commenced and he verified his application in the United States. So all the facts also came from this witness of truth. We would submit that, really, the whole thing has been looked at from the wrong direction.

BRENNAN CJ: It is a hard road to hoe to get special leave to appeal on a finding of fact.

MR BROUN: Your Honour, yes, certainly, I concede that is my great problem here but, essentially, we suggest that there has been a wrong approach to assessing those facts. The matter has been looked at through the wrong end of the telescope, is the easy way to put it.

BRENNAN CJ: I know that is the easy way to put it, but it does not sound in terms of principle of law.

MR BROUN: Your Honour, the way I put it in terms of principle of law is that the Full Court has not followed the traditional approach of examining the facts and inferring intention from that, rather than looking at the evidence of the person himself as to his intention. He may perfectly truly have, in his own mind, that intention but there is still the method to look at the facts as to what has happened and what he has been doing as to what his real intention is, as distinct from what he has in mind as his intention. This was the case of a man who has lived in the United States of America more than anywhere else but he is very much a man circling the globe because of the, as the evidence revealed extensively, the considerable tax advantages derived by doing so.

My next point was the dissolution question. There, essentially, curiously the trial judge did not accept the husband on the question of what the position was as to his attitude to the continuation of the marriage and the trial judge concluded from the correspondence in the material that in fact the husband did not have the requisite intention to be separated during the period of the 12 months of separation that the husband relied on. He did not have a lot to spare, there were only days in addition to the 12 month period. So that the date of the breakdown of the marriage or the separation for the purposes of the Act was crucial. Now, the trial judge did not accept him on that, yet the Full Court replaced the trial judge's assessment of a conversation in October of the year in which the separation was alleged to have occurred for the trial judge's assessment of it, the trial judge having seen the husband in the witness box over two days and having overall formed conclusions about his credit and his believability in all other respects, but did not accept that one.

Now, your Honours, the essential point of law here is the ground itself. What does one have to do to be separated for 12 months? We submit that the proper approach is to say that where you have people who, in the ordinary course of the way that they conduct their shared life together, are living apart physically, regularly, and frequently and for long periods each year - and that appeared to be clearly the case here - that the mere fact of physical separation clearly cannot be enough. Physical separation does not point to the end of the marriage. What the husband pointed to here was a conversation he had by telephone with himself in the United States, the wife in Monaco, in effect, saying, "Where is this marriage going?", and discussing the consequences.

The trial judge formed a view about that. The Full Court formed a different view. It is just a matter of, again, the determination of the witnesses, the conclusion to be drawn from a conversation.

Then there was the correspondence in February and March of the following year in which the husband talks about resuming cohabitation with the wife and living in Australia in the future. The trial judge saw that as pointing to an intention or the animus of the continuation of the matrimonial relationship, and the Full Court displaced the trial judge's decision. So, we say that here there is the question of the structure of the ground. What has to be shown. Is it in fact a matter of the intention to be apart as well as physical apartness and, secondly, was the Full Court justified in just simply reversing the trial judge's finding of fact on those two matters.

The third question, your Honours, which perhaps is the most important to the long term of the lot is this forum non conveniens question. I appreciate that this Court has considered that in a number of matters but we have the special problem in husband and wife matters where they are not really separate parties and they are both, as it were, litigating out of the one fund.

GAUDRON J: But why do you call it a forum non conveniens question in a case like this? Why is it not a vexatious or oppressive, an abuse of process question?

MR BROUN: Your Honour, indeed. I have used that phrase, perhaps, just to put it into traditional categories, inaccurately.

GAUDRON J: Well, not into traditional categories, perhaps, but to put it into more modern categories.

MR BROUN: Yes. If we look at Voth v Manildra Four Mills, the Court there seems to have - - -

GUMMOW J: There is no lis pendens in that case, you see. You have that in your favour here.

MR BROUN: Yes, indeed, we had litigation going in Monaco for 12 months before. But the Full Court seems to have adopted the position following Voth v Manildra Flour Mills that it had to be clearly inappropriate to continue in Australia and, for the reasons we have advanced in our material, we do submit that in a husband and wife situation where you have a case already going in another country that has been going for 12 months, that the Full Court has just misapplied the principles or, if the principles were properly applied then, in our submission, there ought to be some qualification to the principles.

GAUDRON J: Was it put that the question was whether the commencement of proceedings in Australia when proceedings were already on foot in Monaco was a straight abuse of process?

MR BROUN: Indeed, your Honour. It was what we were emphasising all the way along, the existence of the proceeding.

GAUDRON J: Why is it discussed in terms of forum non conveniens which is a more limited concept of abuse of process?

MR BROUN: Your Honour, I have used that phrase in our submissions. Before the Full Court our emphasis was on the Monaco proceedings. The husband in fact commenced them there first; then the wife, and they had been progressing on steadily in Monaco ever since.

BRENNAN CJ: There are two questions, are there not, here. One is what is the appropriate response of the Family Court of Australia when there is a question of proceedings pending in another jurisdiction. The second is does this objection to the exercise of the jurisdiction of the Family Court extend to all aspects of the proceedings between the parties or only to the property aspects? In other words, can the dissolution proceedings advance and that the property matters be stayed?

MR BROUN: Your Honour, at this stage the only matter that has so far arisen is the dissolution proceedings, and I have to accept that, but at this stage the question of what happens about the property proceedings has not been determined, whether it is to be litigated in Australia or Monaco. So that it is only the divorce proceedings and the Full Court of the Family Court, in effect, said, "Well, we've been doing divorce proceedings in these sort of circumstances for some time but there was the previous decision of Horton v Horton from the Full Court which referred to the fact that once you have a proceeding for dissolution going in another court" - that was Hong Kong - "one does not push forward the Australian dissolution proceedings and let us then await the outcome of the proceedings already commenced elsewhere". But here the Full Court focused on the apparently understanding of Voth v Manildra Flour Mills which they had applied in Gilmore v Gilmore of saying where it is not a custody matter - and Gilmore was not a custody issue - where we are dealing with questions of other kinds, one has then the clearly inappropriate forum test, and that was the one that was applied by the Full Court in Gilmore and applied again in this one. In our submission, it just does not work in a matrimonial situation.

BRENNAN CJ: What would be the situation if the Monaco proceedings were to proceed to a decree of dissolution? What would be the position of the recognition of that decree by Australian law?

MR BROUN: It would certainly be recognised because the Australian law recognises a decree pronounced in any court where either of the parties was domiciled or, indeed, ordinarily resident. So that, undoubtedly, my client, the wife - - -

BRENNAN CJ: What is that pursuant to, the common law?

MR BROUN: No, pursuant to the Family Law Act. There is a specific provision for recognition of decrees.

BRENNAN CJ: What is the provision that deals with it?

MR BROUN: Your Honour, that is section 103 or 104, if your Honours would just pardon me while I just check which one that is.

BRENNAN CJ: Section 104 seems to deal with overseas decrees..

MR BROUN: Yes. The applicant - "ordinary residence" - last place of cohabitation of the parties. So it comes in under both: "ordinary residence" and "last place of cohabitation".

GUMMOW J: And what about in the other direction? Is there any material to indicate what would happen in Monaco?

MR BROUN: It is not clear from the material before the Court, your Honours, and unfortunately, the trouble is, Monaco has an extra problem, that it does not have a separate set of law of its own. It applies, and we understand it will apply in this case, German law but not French law. It applies whatever the law is of the particular people who are before it. The bulk of the cohabitation of these parties was in Germany and a brief period in Switzerland and then to Monaco. So, we understand the applicable law to be applied in Monaco will be the relevant German law.

Your Honour, I am not in a position to say that there was evidence before the court as to what the Monegasque understanding of German law would be as to recognition. But, your Honours, certainly, everybody seems to have been proceeding in this "race for jurisdiction", as it has been called by a number of comentators, of trying to get their decree first.

GUMMOW J: German law might be better than the Monaco.. All sorts of things are possible.

MR BROUN: Yes, indeed. So, your Honours, in our submission, the last question of what one does in a situation like this and the way the Full Court has approached the matter both in Gilmore and in this present case - and Gilmore perhaps is the fuller discussion - does call for a review by this Court.

BRENNAN CJ: We are concerned only with the proceedings for dissolution at this stage, are we not?

MR BROUN: That is so.

BRENNAN CJ: Not with the property proceedings.

MR BROUN: Not the property proceedings, only the dissolution proceedings.

GAUDRON J: Can I inquire a bit further in that regard. The application does extend, does it not, to property matters, the application before the Court?

MR BROUN: The procedure, of course, in the Family Court, they are two separate applications. They are always divided. We have had great difficulty explaining that to the European lawyers where they are always combined.

GAUDRON J: So, there is no application with respect to property at this stage?

MR BROUN: No, the husband filed a property application at exactly the same time, or a day after, I think, as the dissolution application.

GAUDRON J: And one would treat the rulings and decisions here as applying to both applications, would one?

MR BROUN: I would expect so, your Honour. There may be some different argument that has not yet occurred to me or that my friends may have that I am not yet aware of as to why the property question should be approached separately or differently. But, in our expectation, we hope that this decision on forum will decide the lot but it may not be so. There may be a separate argument to be advanced. I should tell your Honours there have been directions in the Family Court, pending this application, that we make an application if we wished to in the property proceedings for those to be stayed and I understand that that has to be done within some limited number of days after your Honours have determined the matter here. So that there is a direction, in effect, presently existing in the Family Court for us to make our application about the property proceedings there.

GUMMOW J: Are they two separate proceedings?

MR BROUN: They are two separate - they are even instituted by different documents. Indeed, they cannot be heard together under the ordinary court practice. They are entirely separated, which presents a great problem.

GUMMOW J: When you say "practice", is that practice in the literal sense or does it follow from the rules?

MR BROUN: The rules prescribe how a dissolution application is to be dealt with. There is a form of application which does not deal with any other relief. There is a form of answer prescribed and a method - - -

GUMMOW J: They get filed together, do they not?

MR BROUN: Which, your Honour, the - - -?

GUMMOW J: The property application and the dissolution?

MR BROUN: Normally not, and in this case I think they were a day or so apart. Sometimes the property application is first. Normally, the dissolution application goes on when it is convenient to file it or when the time is expired. The property application again depends upon when it is convenient to file. The only limitation is that the application about property has to be filed within 12 months of the decree of dissolution of marriage unless leave is given. But leave is fairly readily given. There is one reported case where leave was given 35 years after the decree, so it is fairly liberally given.

GUMMOW J: We do not have the property application in these papers, do we?

MR BROUN: No, your Honour, although it was before the Full Court - - -

GUMMOW J: That is what I was wondering.

MR BROUN: - - - because it was actually on the file. It was referred to before the trial judge and I believe it was in the appeal papers before the Full Court.

BRENNAN CJ: If the Court were against you in relation to the first two grounds on which you are seeking special leave to appeal, but for you on the third, would you accept a grant of special leave limited to the third ground but binding yourself for that purpose to accept the findings of the Full Court in relation to all matters of fact relative to domicile and to dissolution?

MR BROUN: That would necessarily follow, your Honours, we would accept that. Thank you, your Honours.

BRENNAN CJ: Yes, Mr Rayment.

MR RAYMENT: Your Honour, should I deal with all three matters nevertheless?

BRENNAN CJ: I would have thought not. Not the first two, Mr Rayment.

MR RAYMENT: May it please your Honour. Your Honours, the state of the proceedings between these parties is as follows. Subject to this application, the proceedings with respect to dissolution are finished. The property application is set down to be dealt with and a preliminary point is being taken before the Family Court on the question whether the Family Court ought to proceed with the matter and my learned friend has raised, framed as a forum non conveniens, a preliminary point that the property application should be proceeded with overseas so that there will be quite separately dealt with before the Family Court that question, and it has been set down for argument.

The way in which the matter proceeded at all levels before the Judicial Registrar, the judge and the Full Court was that the wife sought to put forward very general propositions, framed as a forum non conveniens submission, without calling any evidence such as might possibly satisfy the Court that there was any inappropriateness about this forum and, in particular, there was no evidence called, for example, that an Australian decree would not be recognised where she proposed to reside, which is perhaps one of the ways in which one might suggest either the proceedings are vexatious or that there is some other appropriate forum. There was simply no evidence about the matter. The absence of evidence is referred to at all levels in the case.

GAUDRON J: But there was evidence that there were proceedings afoot?

MR RAYMENT: There was evidence that what was on foot at the time of the filing of the application for divorce here was the wife's application for, what was called.separation judiciaire, that is, judicial separation, which could be converted into but did not have to be converted into a proceeding for divorce.

GAUDRON J: Which were preliminary to any divorce proceedings.

MR RAYMENT: They were potentially divorce proceedings but no more than potentially.

GAUDRON J: But they were essential, also, to divorce proceedings, were they not?

MR RAYMENT: I assume so. No, it is not so, I am told. The husband had sought divorce and withdrawn it. She had sought separation judiaciaire which could, with the leave of the court, apparently, be amended so as to become a divorce proceeding. So, they were not pending.

BRENNAN CJ: She sought that under German law?

MR RAYMENT: No, under Monegasque law.

BRENNAN CJ: That was what I was wondering. The terms seemed to be French rather than German though we are told that German law was applied in Monaco.

MR RAYMENT: No, German law was not relevant to the case. Each party, when they proceeded - the husband, initially, and the wife later - proceeded under the law of Monaco which is French law but a particular French law.

GUMMOW J: We were told that Monaco courts pick up the personal law - - -

MR RAYMENT: In relation to property but not in relation to dissolution matters. You need to prove a fault question, for example, in Monaco, that you do not need to prove here.

BRENNAN CJ: You said that the proceedings, so far as dissolution were concerned, were complete. Is that so?

MR RAYMENT: So far as dissolution is concerned, if this Court refuses special leave, tomorrow these parties are divorced. That is the result of the stay order which was made in - the decree becomes absolute tomorrow if this special leave application is refused. But the property application is yet to start so far as hearings are concerned. It has been filed and it is - - -

GUMMOW J: That is one of the Mr Broun's complaints because he says it is likely to go forward with what he says is the misconceived view of what the applicable principles of law are as to the lis pendens problem.

MR RAYMENT: His difficulty about using this as a vehicle to correct any legal principles is that he has not got any evidence on, in our respectful submission, about what the respective laws provide about recognition. All he shows is that some application which might potentially become a divorce hearing has been filed by one of the parties and is pending in the Monaco courts. He does not have a case where a discretion could be exercised, in our respectful submission - not in his favour.

There is no impropriety, in our respectful submission, about bringing forward such a proceeding as this in Australia merely because there is pending in another court a proceeding seeking similar relief. Indeed, there is an international convention to which this country is not a party designed to make provision for the dealing with aspects of property where competing orders are made in courts of different countries. So, it is not at all an unusual state of affairs that there might be pending in two countries a proceeding seeking the same relief.

BRENNAN CJ: What is the state of play so far as the proceedings relating to property are concerned? An application on for property relief by the - - -

MR RAYMENT: Yes. My client has sought the Family Court's orders dividing the property of the parties to the marriage. The wife has said that application should not be brought forward in the Family Court. It is not a convenient forum for the dealing with those questions and they should be brought forward in Monaco. That question has been the subject of evidence on both sides and is set down to be heard or there is a direction for the filing of evidence on both sides on an expedited - at short interval and it is to be set down to be dealt with by the Family Court on those facts.

GAUDRON J: That is one of the problems that seemed to worry me that I found a little curious here. Was there a real opportunity to call evidence? Is there a real opportunity to call evidence if it is dealt with in a shortened way, and was there here?

MR RAYMENT: There was a proceeding before the Judicial Registrar originally - - -

GAUDRON J: On what date did that occur?

MR RAYMENT: The reasons were given in April 1994.

GAUDRON J: February 1994. The divorce petition was filed in November, as I understand it.

MR RAYMENT: November 1993 and it came on before a Judicial Registrar in February 1994 and was the subject of a judgment in April. Now, that was taken up - - -

GAUDRON J: And the respondent, or the wife, was not present in the country.

MR RAYMENT: She was not present in the country and the only order which is not under appeal and never has been under appeal is an order refusing an adjournment to her. My learned friend put some statements in his application for special leave which are not supported by any findings in the appeal book and to which we respectfully object.

The matter having been dealt with by the Judicial Registrar, he took a view first that there was no reason not to allow the application for dissolution to proceed; secondly, that the domicile issue should be determined favourably to the husband, but declined to do anything further because, apparently, that was all that was before him. Then the other side sought to challenge both of those findings before a judge and had a second opportunity to lead such evidence as they wished to before the judge because it was a complete rehearing with the ability for both sides to call further evidence. Indeed, Mr Broun then cross-examined at length the husband, he coming into the matter for the first time before the judge.

The judge gave one judgment, which is in the application book, in October, and then there was a further hearing before his Honour when my client apparently unsuccessfully sought leave to reopen some of the evidence and that is dealt with only in a transcript which is in the application book. So that there has been, in our respectful submission, two opportunities to the wife to put such evidence as she wishes before the Family Court and on neither occasion has she chosen to make a case, based upon evidence, which might touch upon the matters now sought to be the subject of a grant of special leave. So, the Court would not know - - -

GUMMOW J: We know quite a bit, do we not?

MR RAYMENT: You know some things but - - -

GUMMOW J: The nature of the proceeding in Monte Carlo, as Justice Gaudron was suggesting to you, seems to be as she was suggesting, at page 6 of the application book. The procedure is in two stages. The first stage is an attempt of conciliation and then if that fails one goes to the second. One cannot go to the second without the first.....his Honour was suggesting, as far as I can see. It also seems, from page 6, that ex parte relief has been granted.

MR RAYMENT: Ex parte relief relating to property and excluding the husband from the home.

GUMMOW J: Yes, and from operating bank accounts and from the payment of maintenance. So the Monegasque proceedings were a fair way down the road. They had started off in 1992. They were fairly well advanced by November 1993.

MR RAYMENT: But they are based upon fault, a different legal system.

GUMMOW J: Yes, that may be so.

MR RAYMENT: And it would be consistent with that case failing because of absence of proof of fault that an order might nevertheless be made in a court of proper jurisdiction here terminating the same marriage.

GUMMOW J: Yes.

MR RAYMENT: In other words, that court could not proceed on the same ground as this Court could proceed upon.

The absence of evidence that I refer to is absence of evidence about recognition questions in Monaco, if that is where this lady proposes to reside or Germany, for that matter, if she proposes to go back there. So, in our respectful submission, it is an inappropriate vehicle for the grant of special leave to review any such matter. Of course, if there is to be some further look at questions relating to this kind of matter, it ought to be, in our respectful submission, in the case where the evidence is such as would enable the Court to give a - - -

GAUDRON J: Mr Rayment, are you aware of any decisions in other jurisdictions where the matter has been approached on the basis of a lis alibi pendens?

MR RAYMENT: I do not think I have looked at the matter, your Honour, to be able to answer that questions, no.

GAUDRON J: Are you aware of the approach in other jurisdictions on any other approach?

MR RAYMENT: There is a convention which deals, certainly - which assumes that there might be a race to the making of a property order because, obviously, different considerations might affect property in different jurisdictions and the convention, in effect, provides that where the decree is based upon domicile, the court which first makes a property order will be the court whose decree is recognised.

GAUDRON J: What was the common law in this regard?

MR RAYMENT: I do not know, your Honour.

BRENNAN CJ: Do I understand you to say that in Monaco there is no lis pendens for divorce?

MR RAYMENT: It is potentially a proceeding which would lead to a divorce proceeding but it is, as I understand the matter, a proceeding for judicial separation, as we would call it, separation judiciaire, which may lead to the making of a divorce decree but will not necessarily do so.

GAUDRON J: And you do not say it is an essential preliminary step? It depends on the grounds, I suppose. Is it like the old Matrimonial Causes Act?

MR RAYMENT: The husband's application was more directly a divorce application so, presumably, it is not an essential step.

GAUDRON J: One of the difficulties - I mean, I would have thought, in the absence of evidence from your client, the fact that he commenced proceedings in Monaco and when he discontinued thereafter fresh proceedings were brought in Monaco and continued apace, at least, whatever the nature of them should turn out to be, the inference would be that your client's bringing of proceedings here was for some purpose which he ought to explain and which might well be categorised in the absence of explanation or might thought to be in the absence of explanation, an improper purpose that made the proceedings abusive.

MR RAYMENT: But my learned friend has him there for two days and does not put it to him. There are no findings that are sought based upon any answer given by Mr Henry. He had every opportunity, in our respectful submission. The issue was directly there. May it please, your Honours, those are our submissions.

BRENNAN CJ: Mr Broun, do you have anything in reply?

MR BROUN: Not unless your Honours have anything specifically.

BRENNAN CJ: I have one question. Where is the evidence or finding or indication of the lis that is pending in Monaco?

MR BROUN: Your Honours, all of the Monaco documents were before the court and, indeed, they are summarised, unfortunately, only, in the judgment of Judicial Registrar Johnson that your Honour Justice Gummow referred to at page 6. But they were all there - - -

BRENNAN CJ: Page 6 is referring to the husband's application.

MR BROUN: Sorry, your Honours. The wife's applications were also before the court with translations and documents. We were, certainly, in a position where it was not entirely clear what the requirements of the Monaco procedure were.

BRENNAN CJ: Is there any evidence or is there any finding that there is presently pending before the Monaco court proceedings for divorce?

GAUDRON J: There is evidence now but it may not have been before the Judicial Registrar, is there not?

MR BROUN: Your Honour, there is certainly evidence of the commencement of proceedings by the wife for the determination of the marital status of the parties. Certainly, there was the application for, as my friend referred to it, it is a type of judicial separation ,but our understanding was - and I do not know that this is proved by evidence of foreign law - that that was one of the alternative ways that one progressed towards a divorce. There is much continental law which requires parties to explore reconciliation and investigate the marriage prior to actually the step of a dissolution application being filed. So, there is always a preliminary step that has to be taken first.

BRENNAN CJ: On page 6 there is a description of what the procedure was for divorce relating to the husband's case.

MR BROUN: The husband's case, yes.

BRENNAN CJ: Now, I would have thought that if there were proceedings for divorce arising on the wife's application, there would be a similar procedure to be followed and that would be susceptible of proof.

MR BROUN: Yes. Your Honour, my learned junior reminds me that there is, in fact, on the court record a complete account of every step that has occurred in the Monaco proceedings. In fact, our understanding is the matter is before the Monaco court today. Well, it is not yet time for the court to have opened there but - - -

BRENNAN CJ: But what is before the Monaco court?

MR BROUN: There is one of the interlocutory steps before the court today. The husband has appealed in every - - -

BRENNAN CJ: Are you not in a position to demonstrate that there is a proceeding for seeking divorce in the Monaco court?

MR BROUN: Your Honour, there is a proceeding seeking divorce. It is in the documents in the court file. It is not in the application book. It was before the Full Court and, indeed, we proceeded before the Full Court on the basis that there was proceedings for dissolution pending in Monaco. I am somewhat surprised that this is an issue now raised because it has always been the basis we have been proceeding that there is a dissolution proceeding pending from the wife.

GAUDRON J: My recollection of reading the judgments is that it was clear that the wife had commenced proceedings, I think, by March 1992 and that the effect of everything, the subsequent steps, the sort of "relating back" operation, as it were, was to the effect that the divorce proceedings will commence not later than 11 August 1993.

MR BROUN: Yes, your Honour.

GAUDRON J: I take that to come from the certificate dated April 28, but I am not too clear whether that was before the Judicial Registrar or the judge at first instance or the Full Court.

MR RAYMENT: It was rejected before the Full Court.

GAUDRON J: It was rejected, the evidence?

MR RAYMENT: Yes.

MR BROUN: Yes, I am obliged to my friend reminding me of that. We did seek to place that additional fact before the Full Court but, nonetheless, before the Full Court we proceeded on the basis that we had contested - proceedings leading to a divorce going on in two countries, though the Full Court then did not see it necessary to accept that further piece of fresh evidence as to exactly where it was up to.

GAUDRON J: Which it might have done if they had been looking at it other than a forum non conveniens.

MR BROUN: Yes.

BRENNAN CJ: And we have not the ruling in the appeal court?

MR BROUN: The ruling on the admission of the fresh evidence?

BRENNAN CJ: Yes.

MR BROUN: Your Honour, it certainly would be in the transcript of the Full Court but your Honours will be aware that this application for special leave has come on somewhat rapidly and, indeed, we only got the judgment just before these application books were filed. Thank you, your Honours.

BRENNAN CJ: The Court will again adjourn for a few minutes to deal with this application.

AT 11.19 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.24 AM:

BRENNAN CJ: The Court is not minded to grant special leave to appeal on either of the first two grounds advanced by counsel for the applicant.

The Court would not be minded to grant special leave to appeal on the third ground unless it appears that there was either a finding by the courts below that there were proceedings instituted by the wife for divorce in the courts of Monaco or that the proceedings were conducted in the court below on the basis that there were such proceedings pending or that evidence of the existence of those proceedings was wrongly rejected when tendered before the courts below.

If the applicant were in a position to establish one or other of those bases of decision, then this Court would be minded to consider the grant of special leave to appeal on the third ground. The material presently before the Court is insufficient to allow the Court to come to a firm conclusion about the proceedings in the courts below. For that reason, we are minded to adjourn the application on the third ground to give you, Mr Broun, an opportunity, if you see fit, to produce material to establish one or other of those three bases on which the court below might have proceeded.

The Court is further minded to extend the time of the stay that has been granted by the Federal Court until the further hearing of this application.

Now, the date for the resumed hearing of the application will be notified to the parties in due course but it will be at the end of July or the beginning of August.

The order that is now made is one which does not impede the consideration of the applications pending in relation to property including, of course, the application that the proceedings relating to property should not proceed in the Family Court.

MR RAYMENT: If the Court pleases.

AT 11.27 AM THE MATTER WAS ADJOURNED