Family Law Hub

ER v BF [2018] EWFC 18

In a tweet: Test in Re A (children) [2013] UKSC 60 was used to assess whether the parties were habitually resident in England

  • Neutral citation number: [2018] EWFC 18

    Ref. RS1D12421

    IN THE FAMILY COURT

    Royal Courts of Justice

    Strand

    London

    Date: 23rd February 2018

    Before

    THE HONOURABLE MR JUSTICE BAKER

    ______________

    IN THE MATTER OF THE MATRIMONIAL CAUSES ACT 1973

    BETWEEN:

    ER (Petitioner)

    - and -

    BF (Respondent)

    ______________

    TINA VILLAROSA appeared on behalf of the Applicant

    RICHARD NORMAN appeared on behalf of the Respondent

    ______________

    JUDGMENT (AS APPROVED)

    ______________

    This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

    MR JUSTICE BAKER:

    1. Last Friday, 16th February 2018, I refused an application by the husband for an order staying divorce proceedings made by his wife in the Family Court which had been filed in the regional divorce unit at Southampton. This judgment sets out the reasons for that decision.

    Summary of facts

    2. The background is as follows. The parties were born and raised in New Zealand. The husband was born in 1961 and is therefore now aged 57. The wife was born in 1964 and is therefore now aged 53. They were married in Wellington, New Zealand on 16th April 1990. They have three children, all daughters, now aged 25, 22 and 19 respectively.

    3. The wife is a nurse specialising in caring for patients with infectious diseases. The husband is an economist and, for much of his working life, was employed by the Asian Development Bank. Until 1994, he worked in New Zealand, but in that year, he was posted abroad and has not lived or worked in New Zealand since then. Thereafter, he worked in a number of other countries and was accompanied by the family. Between 1995 and 1999, they lived in England and the youngest child was born here, the older two having been born in New Zealand. A property was purchased in Twickenham in which the family lived. In 1999, they moved to Sydney, Australia and the Twickenham property was sold and the parties purchased a flat in Knightsbridge as a rental property, subsequently selling it a few years later.

    4. In 2008, the husband was posted to Manila in the Philippines and, again, the family moved with him. In 2011, the wife and children returned to New Zealand. By that point, one of the children had significant health problems and this was one reason for the wife's decision to return to New Zealand at that stage. In addition, however, the marriage was in difficulties. In 2013, the parties instructed lawyers in New Zealand and started negotiations about a divorce and a financial settlement.

    5. In 2014, the wife, who had started a relationship with another man, moved with the two younger children to live with her new partner in France. This arrangement was, however, short lived. The relationship broke down and a few months later that year, the wife and the youngest child moved to Bristol. At that time, the circumstances of this move were discussed in email exchanges between the wife and husband which demonstrate that they were still on reasonably good terms. The parties agreed on the sale of the former matrimonial home in New Zealand and the investment of funds in a new property for the wife and youngest child in Bristol.

    6. In May 2015, the wife sent an email to the husband in which she suggested a reconciliation, expressing regret about the breakdown of their relationship. By that point, all three girls were in Europe. The wife said in her email that she was sorry the girls were over here and he, the husband, over there. She therefore suggested:

    "Why don't you come over to Europe and try to get a job here? I realise the visa may be an issue. You could use us as a base. We have two large bedrooms, plus the day bed in the lounge so we have space. I realise you don't particularly want to be with me, but to be able to have a more constant relationship with your daughters would really help them."

    7. The husband had already been thinking about taking this step and in February 2016, he left his employment and moved to England to work for the European Reconstruction and Development Bank, renting a flat in London. Thereafter, the parties spent time together with the husband visiting Bristol for weekends and the wife and the two younger children visiting his flat in London. The extent to which there was any reconciliation between them is a matter of dispute between the parties which it has not been necessary for this court to resolve for the purposes of this application.

    8. In October 2016, the wife was diagnosed with breast cancer and was off work for a period. It is her evidence that the husband continued to visit the family in Bristol regularly during this period and she describes him as being of great support to her during this difficult time.

    9. During 2017, however, their relationship finally broke down. According to the wife, on 4th August 2017, she told the husband she wanted a divorce. On 25th August 2017, the wife filed a petition in the Southampton regional divorce unit under s.1(2)(b) of the Matrimonial Causes Act 1973. In the petition, she asserted that the courts of England and Wales had jurisdiction by reason of the fact that she had been habitually resident in this jurisdiction for a year prior to the presentation of the petition.

    10. On 4th September 2017, the wife filed an application for financial remedies, Form A.

    11. On 11th September 2017, the husband filed proceedings in New Zealand for the dissolution of the marriage (divorce no longer existing in that jurisdiction), on the grounds of two years' separation, asserting that the New Zealand courts had jurisdiction because both parties were domiciled in that country.

    12. On 12th September 2017, a discretionary trust was created in New Zealand and a number of assets transferred into the trust by the husband. The ultimate beneficiaries of the trust are the parties' three children. The husband's case is that all or at least most of the assets which have been transferred into the trust derive from an inheritance he received from his late father who had died in 2013.

    13. On 15th September, the husband filed an application for financial proceedings in the New Zealand court in a separate process from the dissolution proceedings. On the same day, he filed an answer to the wife's petition in this jurisdiction, asserting as follows. "(1) The parties are New Zealand citizens. They resided in New Zealand on the day of separation. They retain their domicile in New Zealand. (2) The parties retained New Zealand lawyers and conducted negotiations prior to the petitioner departing New Zealand to reside in France. (3) New Zealand is the proper and convenient forum for any proceedings in respect of the marriage."

    14. On 9th November 2017, pursuant to FPR 2010 rule 7.27, District Judge Cope made an order by consent dispensing with a formal application by the husband for a stay of these proceedings and giving directions for the filing of statements addressing the question of the appropriate forum.

    15. On 16th November 2017, the wife filed an application in the New Zealand proceedings ("an appearance under protest to jurisdiction") objecting to the jurisdiction of the New Zealand courts with regard to the financial proceedings.

    16. On 6th December 2017, the New Zealand court registrar, in accordance with what I am told is normal procedure, made an order dissolving the parties' marriage to take effect from 7th January 2018 unless either party requested a hearing.

    17. On 15th December 2017, the husband filed an application in the New Zealand proceedings to set aside the wife's protest as to jurisdiction in respect of the financial proceedings.

    18. On 3rd January 2018, the wife, who had by this point instructed different solicitors in New Zealand, together with leading counsel, filed a request for a hearing asking the court to rescind the order for dissolution of the marriage on the grounds that the parties had not been separated for two years prior to the filing of the husband's application for dissolution of the marriage in New Zealand. On her case, they lived together from February 2016 until August 2017 shortly before she filed her petition for divorce in this country. As a result, on 10th January 2018, a judge in New Zealand listed a hearing to determine whether or not the dissolution order should remain final. That hearing was originally listed for 26th February 2018, but the husband has now asked for it to be adjourned.

    19. On 24th January 2018, the husband filed, in New Zealand, a notice of defence to the wife's application to rescind the order of 6th December 2017 dissolving the marriage, coupled with a request that the dissolution and the financial proceedings be heard concurrently.

    20. The husband's application for a stay of these proceedings was listed on 18th January 2018 before HH Judge Rutherford, but he concluded that the matter should be determined by a judge of the High Court and it was therefore reallocated to me. The earliest date on which I was able to accommodate it in my list was last Friday, 16th February, in Plymouth. Directions in respect of the financial proceedings were, in effect, adjourned pending the hearing of the stay application.

    The law

    21. The parties' counsel are substantially agreed concerning the law to be applied when determining this application for a stay.

    22. There are two possible statutory sources of an English court's jurisdiction to stay matrimonial proceedings: (1) under the Domicile and Matrimonial Proceedings Act 1973 ("DMPA 1973") and/or (2) under the inherent jurisdiction, by virtue of the Senior Courts Act 1981 s.49(3).

    23. The power to stay proceedings may be restricted where the jurisdictional rules are governed by European regulation, for example, Council Regulation 2201/2003 (Brussels IIA), but, as the Court of Appeal confirmed in Mittal v Mittal [2013] EWCA Civ 1255 [2014] 1FLR 1514, any such restrictions do not apply where one jurisdiction is not a signatory to the Brussels IIA regulation as is the case here.

    24. S.5(6) of DMPA 1973 provides: "Schedule 1 to this Act shall have effect as to the cases in which matrimonial proceedings in England and Wales are to be, or may be, stayed by the court where there are concurrent proceedings elsewhere in respect of the same marriage, and as to other matters dealt with in that schedule, but nothing in that schedule (a) requires or authorises a stay of proceedings which are pending when this section comes into force or (b) prejudices any power to stay proceedings which is exercisable by the court apart from the Schedule."

    25. Schedule 1, paragraph 9 of DMPA 1973 provides:

    "(1) Where before the beginning of the trial or first trial in any matrimonial proceedings other than proceedings governed by the council regulation which are continuing in the court, it appears to the court

    (a) that any proceedings in respect of the marriage in question or capable of affecting its validity or subsistence are continuing in another jurisdiction and

    (b) that the balance of fairness, including convenience, as between the parties to the marriage is such that it is appropriate for the proceedings in that jurisdiction to be disposed of before further steps are taken in the proceedings in the court or in those proceedings so far as they consist of a particular kind of matrimonial proceedings, the court may then, if it thinks fit, order that the proceedings in the court be stayed or as the case may be, those proceedings be stayed so far as they consist of proceedings of that kind.

    (2) In considering the balance of fairness and convenience for the purposes of subparagraph 1(b) above, the court shall have regard to all the factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed or not being stayed."

    26. S. 49(3) of the Senior Courts Act 1981 provides:

    "Nothing in this Act shall affect the power of the Court of Appeal or the High Court to stay any proceedings before it where it thinks fit to do so, either of its own motion or on the application of any person whether or not a party to these proceedings."

    27. The development of the power under the inherent jurisdiction to order a stay of proceedings on grounds of forum non conveniens derived from longstanding Scottish legal principles, crystallised in the decision of the House of Lords in Spiliada Maritime Corporation v Consulex Ltd (The Spiliada) [1987] AC 460. The principles derived from the Spiliada case above as set out in the speech of Lord Goff of Chieveley, chiefly at pages 476-8, can be summarised as follows:

    (1) A stay will only be granted on the grounds of forum non conveniens when the court is satisfied that there is some other available forum having competent jurisdiction which is the appropriate forum for the trial of the action, i.e. where the case may be tried more suitably in the interests of all the parties and the ends of justice.

    (2) In general, the burden of proof rests on the party applying for a stay to persuade the court to exercise its discretion to grant a stay, although it is of importance to remember that each party will seek to establish the existence of certain matters which will assist him in persuading the court to exercise its discretion in his favour and that in respect of any such matter, the evidential burden will rest on the party who asserts its existence. If the court is satisfied that there is another available forum which is prima facie the appropriate forum for a trial of the action, the burden will then shift to the claimant to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country.

    (3) The natural forum is that with which the action has the most real substantial connection. The connecting factors in this sense will include not only factors affecting convenience or expense (such as availability of witnesses) but also practice, such as the law governing the relevant transaction and the places where the parties respectively reside and carry on their business.

    (4) If there is no other available forum which is clearly more appropriate for the trial of the action, the court should ordinarily refuse a stay.

    (5) If there is some other available forum which is prima facie more appropriate, the court will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted.

    (6) The mere fact that one party has an advantage in proceedings in England cannot be decisive. The underlying principle requires that regard must be had to the interests of all the parties and the ends of justice.

    28. Shortly after the Spiliada case was decided, the applicability of the principle forum non conveniens in matrimonial proceedings was considered by the House of Lords in a further case, De Dampierre v De Dampierre [1988] AC 92. In that case, Lord Goff stated:

    "The courts in this case have been concerned with the question of whether a stay of proceedings should be granted in the exercise of a discretion confirmed by statute viz the Act of 1973. That statute was enacted before the recent development of the court's inherent jurisdiction to order a stay of proceedings on the grounds of forum non conveniens…[which] did not reach its present form until decision of your Lordships' in [the Spiliada case] ….

    How far is this approach relevant in cases where a stay is sought under paragraph 9(1) of Schedule 1 to the Act of 1973? That paragraph requires the court to assess the balance of fairness as between the parties in order to consider whether it is appropriate for a stay to be granted. These are not precisely the words used to describe the principle of forum non conveniens, but, since the latter principle is concerned to establish where the case can appropriately be tried 'for the interests of the parties and for the ends of justice', I find it very difficult to conclude that the underlying purposes of that principle and of the statutory provision are materially different ….

    For these reasons, anxious though I am not to fetter in any way the broad discretion conferred by the statute, it appears to me inherently desirable that judges at first instance should approach their task in cases under the statute in the same way as they now do in cases of forum non conveniens where there is a lis alibi pendens."

    29. In Butler v. Butler [1997] 2 FLR 311, Sir Stephen Brown P, having cited the passages just quoted from De Dampierre added at page 833:

    "It is clear that Lord Goff is providing guidance based on the degree of assimilation that has occurred, but he is not seeking to restrict the discretion of the statute. Nowhere does he use language which requires 'a clear preponderance' of advantage. He expressly recognises that the statutory criterion is 'the balance of fairness.'"

    30. In Tan v. Choy [2014] EWCA Civ 251, [2014] 1FLR 492, Aikens LJ at paragraph 39 summarised the principle as follows:

    "As Lord Goff of Chieveley pointed out in the De Dampierre case at page 107 C to D, there are two conditions that have to be fulfilled before a court can grant a stay pursuant to s.5(6) and paragraph 9 of Schedule 1 of the DMPA 1973. First, there have to be proceedings in respect of the marriage that exist in another jurisdiction, although it does not matter whether they were started before or after the original proceedings. Secondly, the balance of fairness (including convenience) has to be such that it is appropriate for the proceedings in the former jurisdiction to be first disposed of, which means there must be an assessment by the English court of that balance. Only if those prerequisites are fulfilled will the English court, if it thinks fit, order a stay of the English proceedings."

    The parties' evidence and submissions

    31. In his statement in support of his application, the husband advanced the following principal points.

    32. First, he relied on the fact that both parties are domiciled in New Zealand, having been born and brought up in that country.

    33. Secondly, both parties have real and substantive connections to New Zealand. The husband asserts that, in contrast, their connections to the UK are temporary, the wife having been here since October 2014 and the husband since February 2016. The husband asserts that he has no permanent right to reside in this country and no intention to stay here in the long term. His plan is to return to New Zealand where he has retained links and where his siblings, most of his friends and relatives all reside. Although he acknowledges that their children may settle in different parts of the world, he thinks they would regard New Zealand as their home and believes there is a good chance that it will once again become the centre of their family ties.

    34. Thirdly, he relies on the fact that initial and substantive negotiations regarding the resolution of matrimonial finance issues were started in New Zealand between the parties' respective lawyers between 2013 and 2015. He therefore asserts that the original intention was for New Zealand law to apply. He states that the wife filed her petition in this jurisdiction without any prior notice. He says he was outraged when he received the petition and believed that his cooperation and acquiescence during the earlier negotiations had been taken advantage of. He asserts that the wife's conduct amounts to forum shopping. The husband refers to a proposal he has put to the wife that he would have no objections to the divorce proceeding in this country provided that she undertakes not to seek financial relief here and to allow the New Zealand courts to deal with that aspect. The fact that she had declined his offer reinforces his belief that this has been an exercise in forum shopping.

    35. Fourth, he submits that it would be difficult for the English courts to resolve issues about, and make orders in respect of, the parties' assets in New Zealand, in particular, those held in the family trust. Resolution of those matters will involve obtaining information from New Zealand, valuation of assets in that country, and consideration of New Zealand trust law. Furthermore, he has pension assets in New Zealand and elsewhere, but not in England. He asserts that the English court would have no jurisdiction to make a pension sharing order in this case. In contrast, the assets held by the parties in this country are, in the husband's phrase, entirely uncomplicated, consisting of only bank accounts and the jointly owned property in Bristol. There is nothing of complexity about those assets which would cause problems for a New Zealand court considering the financial remedies' dispute.

    36. Finally, the husband asserts that neither party would be put to any significantly greater time or expense if the proceedings are heard in New Zealand. Any oral evidence from witnesses based in this country could be given by video link.

    37. In reply, the wife asserts that England is the place where, for the last two and a half years, she and her husband have been permanently living and that the English family court is the more convenient forum. It is her case that she settled here permanently in May 2015. Later that year, she and the husband agreed to reconcile and he moved to this country as her spouse on her right of abode visa to look for a job close to the family. It is the wife's case that, for a time, she and the husband resumed cohabitation. The family home was purchased in Bristol following the sale of the home in New Zealand. She now wishes to remain here for the rest of her life and has recently been granted British citizenship to which she was entitled as a result of her mother's nationality.

    38. The wife claims that she has strong connections with Bristol where her mother was born. She has close family and friends in the area whom she sees regularly. She is now working as a specialist nurse in a local hospital and says she loves her job. She asserts that, for the first time, she feels settled and does not want to move again. Throughout the marriage, she and the husband lived in eight different cities and, as a result, she feels exhausted. All her personal possessions are in this country in Bristol. In the course of the hearing, the husband confirmed that the majority of his personal possessions are also now in this country, either in his flat in London or in storage.

    39. The parties' eldest daughter is living and working in London. Their youngest daughter is at university in London. The middle daughter is currently studying in New York, but, according to the wife, intends to return to this country when she graduates. The wife asserts that none of the children feel a special connection with New Zealand.

    40. Secondly, the wife asserts that the parties have had limited connections with New Zealand since the family left that country in 1994. In the intervening 23 years, the husband has not lived there at all, only visiting occasionally. The wife lived there for two and three quarter years between 2011 and 2014 when she was supporting the parties' older daughter. Save for that period, she too has only visited occasionally. She asserts that, in contrast, in the 23-year period, the family lived in England for a total of seven and a half years. During the 23 years, the parties owned a house in New Zealand for a period of nine years, eight months and have owned a property in this country for seven years, six months. The wife says she now has no financial ties to New Zealand.

    41. Thirdly, the wife relies on the physical difficulties which would arise were she required to litigate in New Zealand. Given her limited income as a nurse, she would find it difficult to meet the expenditure involved in travelling to that country, compounded by the fact that the proceedings have been issued in a relatively remote part of the country where her husband was born. The number of hearings which would be required in New Zealand is unclear, depending to some extent on whether there is a contested dissolution hearing. It is the wife's case that, were she and the husband required to attend three hearings in a court in New Zealand, their combined costs for travel and accommodation would exceed £10,000. Furthermore, she asserts that the total travel time would take four to five days for the return journey. She says that she is required to give her employer between two and six months' notice of leave and, therefore, there is the risk of having to take an unauthorised leave of absence to attend the hearing unless she is given plenty of notice by the New Zealand court.

    42. The wife asserts that these difficulties have been compounded by her health problems. She states that she is particularly vulnerable to the increased physical toll following her cancer diagnosis. She says that she is already finding the stress of this litigation extremely difficult to deal with and does not know how she will be able to cope with the long journey and financial burdens. The medical report exhibited to her statement describes how the combination of the cancer diagnosis and the acrimonious divorce have created a highly stressful situation resulting in her being affected by significant anxiety and low mood. Her GP is concerned about the stability of her mental health were she required to travel to and from New Zealand. He recommended that this should only be considered once she has been stable in her mental health for at least three months.

    43. Fourthly, the wife relies on the fact that this court has wider powers to make property adjustment and lump sum orders than are available in the New Zealand court. I did not have any expert evidence on this issue, but it is the wife's assertion that she has been advised that inherited property is not taken into account by the New Zealand court considering an application for financial remedies and that, since the service of her petition, the husband has been disposing of assets into the discretionary trust on the basis that they are inherited assets and, therefore, to be excluded from consideration. The wife also asserts that the New Zealand court will not be able to make any orders in respect of any immovable assets in another jurisdiction so that, if the financial proceedings initially continue in that country, it may still be necessary for her to continue with the application in this country in order to secure an order in respect of the property in Bristol.

    44. Finally, it is the wife's intention to contest the dissolution proceedings in New Zealand on the grounds that the parties were not separated as a matter of fact in the two years prior to the presentation of the husband's petition and that the husband is therefore not entitled to the dissolution order he has claimed. This will, therefore, necessitate an additional hearing in the court in that country. The husband says this point falls away if the wife accepts his suggestion that the divorce proceed in this country on the basis that the New Zealand courts deal with financial remedies.

    45. Subsequently, although the court had not given permission for the filing of further statements, the husband filed a short statement in reply stating inter alia: "My wife's assertion that we had not separated until very recently came as a complete surprise to me. I do not propose to dispute my wife's statement on that aspect in detail because of the need to keep the statement short and to the point, but my wife's allegation is entirely denied by me."

    Submissions

    46. In his clear and comprehensive submissions, Mr Norman on behalf of the husband reiterates all the points made by the husband in his written statement and advances a number of additional arguments. He stresses that both parties are domiciled in New Zealand and any connection with this jurisdiction is short-lived. He draws attention to the fact that the wife's move to this country came after another short-lived move to France. He asserts that she has 'flitted between jurisdictions since leaving New Zealand.' He reiterates the point that the majority of the parties' assets remain in New Zealand, including property held within a family trust of which the husband is only one of the trustees. He submits that, while the court in this jurisdiction can readily make orders in respect of the Bristol property, it is hard to see how it can deal with a complex trust for a foreign property of which the legal ownership is held by more than one party in a way that is both fair and enforceable. He also reiterates the husband's evidence that the parties have been engaged in negotiations for some time in New Zealand and asserts that, in seeking to begin everything again from scratch in a different jurisdiction with different lawyers who are unacquainted with the law of New Zealand, with the possibility of expert evidence being required from that jurisdiction, the wife is causing unnecessary delay and increasing the costs of both parties. He submits that the wife is wrong to assert that the New Zealand court will not take into account the Bristol property. Although it cannot make orders in respect of that property, the existence of the property can be taken into account when determining what financial remedies should be granted. He asserts that, in the event that the Bristol property is not included in any financial order made by the New Zealand court, it could properly be dealt with through the Trustees of Land and Appointments of Trustees Act 1996 or Part III of the Matrimonial and Family Proceedings Act 1984. In any event, he submits that the assertion that the wife may receive a lesser award in New Zealand than she might receive in this jurisdiction is neither accepted nor a matter which this court can determine in the absence of expert evidence.

    47. In response to the wife's assertion about the difficulties of litigating in New Zealand, Mr Norman points out that both parties have legal teams in that country, that travel to New Zealand is not particularly onerous, and that, in any event, the husband has offered to pay the wife's costs of travel and accommodation.

    48. Finally, Mr Norman warns that, if the husband's application for a stay is unsuccessful, it does not follow that the proceedings in New Zealand will cease. He reminds me that the dissolution of financial proceedings are separate in that jurisdiction so that, if a stay is declined, there is still a risk of competing orders being made in two separate jurisdictions, precisely the scenario that the provisions of the 1973 DMPA were intended to avoid.

    49. In reply, Miss Villarosa, on behalf of the wife, also reiterates many of the points put forward in her client's statement, in particular, the fact the wife is now settled in this country, the practical difficulties involved in the litigating in New Zealand, and the additional costs involved in contesting the dissolution proceedings in that country. She further submits that the English family court can deal with all financial issues in one set of proceedings including any application for a property adjustment order in respect of the Bristol house and, also, all matters concerning the assets in New Zealand. It is not accepted that the circumstances surrounding the New Zealand assets presents significant difficulties to the English court.

    Discussion and conclusion

    50. I accept that the parties - certainly the husband and probably the wife - are domiciled in New Zealand; that a proportion of their assets are in that country, although on the husband's case, a significant part of his assets have now been placed in a trust for the benefit of the children; and that the parties were engaged in negotiations in New Zealand for a period before coming to Europe and, at one point, seemingly envisaged that their affairs would be resolved in that jurisdiction. I accept that the wife is seeking to have the divorce and financial remedies claim heard in a jurisdiction where she considers she will achieve a more favourable outcome, although it is plain from the terms of the husband's offer to agree to be divorced in this jurisdiction on condition that the financial claims are determined by the New Zealand courts that he, too, is seeking an outcome that is advantageous to him. These points, and all the matters put before me by the husband in his evidence and by Mr Norman on his behalf are all matters to be taken into account in support of his application for a stay.

    51. Having considered all the relevant matters, however, I have reached the clear conclusion that the balance of fairness, including convenience, comes down in favour of refusing a stay, for the following principal reasons.

    52. First, I find that, at the date on which the wife filed her petition, she had plainly settled permanently in this country. The husband does not challenge her assertion that she has now settled here and wishes to stay here for the rest of her life. She has family and friends in this country and she wishes to be close to her children, all of whom seem to have decided to make their lives in England or at least in the northern hemisphere.

    53. Secondly, although there is no evidence that the husband had made any decision to settle permanently in this country, he had plainly moved to this country for an indefinite period. He had given up his long term employment with the Asian Development Bank, taken a job in England, and agreed to the sale of the parties' property in New Zealand and the investment of the proceeds of sale of that property towards the purchase of the house in Bristol. In his statement in reply, filed without permission, he denies the wife's assertion that they had not separated until very recently. As I understand his case, however, he does not deny that he came to this country to live near the family and spent time in their company. In answer to a question from the court, it was confirmed on his behalf that the bulk of his personal belongings had all been moved to this country. Plainly, at the date the petition was filed, both parties were habitually resident in England and Wales, applying the test identified by the Supreme Court in a series of cases, in particular A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60, [2014] AC 1, both parties having plainly achieved some degree of integration in a social and family environment in this country. In my judgment, both parties had made their home here, the wife permanently, the husband at least for the time being.

    54. Thirdly, although New Zealand remained their country of domicile, neither party had spent much time there in the preceding 23 years. The husband has never lived in that country since 1994 and only visited for a few weeks every year. The wife lived there for just under three years between 2011 and 2014. Although the husband retains some assets there, they were, on his own evidence, to a considerable extent, assets he inherited from his own father. They were assets that originated there as opposed to assets that he had moved there. I accept that, in 2013, the parties started negotiating in New Zealand concerning the terms of a possible settlement, but that was before they moved to this country and became habitually resident here.

    55. Fourthly, it is to my mind unquestionably an advantage that the English family court will be able to resolve all financial issues between the parties in one set of proceedings. If the matrimonial finance claim were to proceed in New Zealand, there is a significant likelihood that there would be residual issues which would have to be litigated at additional cost in this country, either under TOLATA or Part III of the MFPA.

    56. Fifthly, I do not regard the fact that some of the parties' assets are held in New Zealand as a factor which adds significant weight to the husband's argument for a stay. The English family court is used to dealing, day in, day out, with financial remedies claims involving assets held in foreign countries. It is not difficult to obtain valuations of such assets, nor, if necessary, advice as to the relevant foreign law including trust law.

    57. Finally, I accept that the continuation of the proceedings in New Zealand is likely to be burdensome on the wife, particularly given her state of health. I think it unlikely that she will be content to participate via video link. As Miss Villarosa indicated in her submissions, the wife would want to be present in court when her claims are resolved. Notwithstanding the husband's offer to meet her costs, the travel would not be easy for her, given her current problems. Thus, in terms of what have been called trial mechanics, the balance of convenience plainly comes down in favour of the proceedings continuing in this jurisdiction.

    58. For these reasons, I have reached the firm conclusion that the balance of fairness, including convenience, comes down clearly in favour of this court continuing to exercise jurisdiction in respect of both the divorce and matrimonial finance issues. The husband's application for a stay is therefore refused.

    59. In the course of argument, Miss Villarosa raised the question of whether the court should grant a Hemain injunction to restrain the husband from pursuing his proceedings in New Zealand. No application has been made for such an injunction and, as such, it would be wrong for this court to consider making such an order at this stage. Equally, I do not think it appropriate for this court to make any observation as to the course which the New Zealand court might take. No doubt, the parties will inform the New Zealand court of the outcome of this application and it is a matter for the New Zealand court to decide what steps to take with regards to the proceedings in that jurisdiction.

    60. I will order a transcript of this judgment to be expedited and give permission for the parties to disclose a copy of the judgment and the resulting order to the New Zealand court.

    61. At the conclusion of the hearing, the parties agreed to discuss appropriate directions to be given when this judgment was delivered. Subsequently, I received competing drafts of the order. Having considered those drafts, I make an order in the following terms.

    "(1) [The parties names are stated.]

    (2) The application for a stay of proceedings is refused.

    (3) A transcript of the judgment handed down on 23rd February 2018 shall be prepared at the joint expense of the parties, such transcript to be expedited as a matter of urgency; permission to the parties to disclose a copy of the judgment and this order to the court of New Zealand.

    (4) The parties should exchange short statements addressing (a) their means, (b) maintenance pending suit budgets and (c) the need for a legal services order addressing the factors set out in Rubin v. Rubin (2014) EWHC 611 Fam by 4pm on 9th March 2018.

    (5) The respondent's application for maintenance pending suit and a legal services order be listed before HH Judge Wildblood QC or HH Judge Bromilow in Bristol with a time estimate of half a day on the first open date after 16th March 2018 and in any event, before 6th April 2018.

    (6) Both parties shall file and serve forms E and accompanying documentation by 4pm on 16th March 2018.

    (7) Both parties shall file and serve their form G, statement of issues, chronology and questionnaire by 4pm on 30th March 2018.

    (8) This matter be listed for a first appointment before either Judge Wildblood or Judge Bromilow on the first open date after 30th March 2018 with a time estimate of one hour. (9) The parties to file any unavailable dates by 4pm on Monday, 26th February 2018. Correction, by 4pm on 27th February 2018."

    62. Finally, I deal with the question of costs. The wife has made an application for costs which is opposed by the husband. Although I anticipated that all the relevant information concerning that claim would be put before me today, in the event, I have not received an updated schedule for the wife. It is plain from submissions filed by Mr Norman that the husband and his team have seen that document, but it has not been produced before me. Accordingly, I will determine the costs application on paper in due course.


Judgment, published: 06/08/2018

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See also

  • In a tweet: Test in Re A (children) [2013] UKSC 60 was used to assess whether the parties were habitually resident in England Case note, 06/08/2018, members only

Published: 06/08/2018

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