Henry v Henry [1996] HCA 51

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

ORDER

1. Appeal allowed with costs.

2. 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.

3. 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.

Cur adv vult

The following written judgments were delivered:—

17 April 1996 Brennan CJ.

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?