Part II: Hypothetical problem section
You must answer all subquestions. This part of the paper is worth a maximum of 45 marks. The suggested maximum length is 1,875 words.
NB The facts are deliberately incomplete. You will need further facts and information to answer the question fully. Indicate the facts or information that you need to fully answer the questions where that is relevant; and explain the relevance of those facts or information. Where the facts or information are not complete, you will need to make assumptions in answering the questions –indicate the assumptions you’re making where that is relevant.
Assume that the laws of foreign legal systems are as stated in the questions. You are not expected to conduct research into foreign law.
Nicholas Hill is a British citizen who moved to Sydney in 2002. He visited England occasionally to visit his family but much preferred the climate and lifestyle in Australia. In 2015, he began a job which required him to travel to London from time to time. Between 2015 and 2020, he travelled there for work eight times altogether. Those trips were irregular in their timing and duration. While he was working in London he stayed in a townhouse he owned there, with a friend who was renting the townhouse from Nicholas. He also owns a house in England.
In June 2016, Nicholas met Jane Evans, a New Zealand citizen who was visiting friends in Australia. Soon after they met, she moved into Nicholas’ house in Sydney. She told her parents she was living with a friend, but did not tell them she was living with Nicholas. Her parents thought Nicholas was too old for Jane (he is 28 years older than her) and strongly disapproved of their relationship. Jane worked part-time since she moved to Australia but she lost her job in March 2020.
Jane was born in the United Kingdom. She moved to New Zealand with her family when she was 12 years old. Jane’s parents loved living in New Zealand but they missed their family and friends in the United Kingdom. They encouraged Jane to go to university in the United Kingdom but she wanted to stay in New Zealand. When she met Nicholas she was in her first year at university in New Zealand. In July 2016, she deferred her enrolment, indicating in her application to defer her studies that she intended to return to study at that university in future. Jane’s parents returned to the United Kingdom in 2017, planning to stay there at least for a few years and perhaps indefinitely. They kept their house in New Zealand, in case they changed their mind. In June 2020, they decided to return permanently to New Zealand to be closer to Jane and her sister (who lives in New Zealand) but have not been able to get a flight back yet.
In August 2016, Jane found out she was pregnant. She told Nicholas that if he did not marry her, she would kill herself because her parents were very strict and they would be extremely angry with her if she had a child when she was not married. Although Nicholas was vehemently opposed to marrying anyone, including Jane, he took her threat seriously. Very reluctantly, he agreed and they were married in Fiji in September 2016. Jane was 18 years old. The marriage is formally valid under Fijian law. The minimum age for marriage in Fiji is 21, but a person under that age can marry if they have the approval of their parents. The wedding planner forgot to ask Jane to provide written approval of the marriage from her parents, and the wedding registry did not check that this had been provided. The minimum age for marriage in New Zealand and the United Kingdom is 18. Assume that the marriage would otherwise be regarded as essentially valid under the law of New Zealand and the United Kingdom.
After their marriage, Jane and Nicholas lived in Sydney. Nicholas continued to travel to London several times a year for work. Jane gave birth to a daughter, Nina, in January 2017. Jane has always been Nina’s primary carer. She felt isolated in Sydney. Neither of them had any family in Australia, so Jane suggested that they should think about moving to the United Kingdom, to be closer to Jane’s parents and Nicholas’ family. Although Nicholas was not enthusiastic about that suggestion, he agreed that Jane could put Nina’s name down to attend a school in England. In October 2017, Jane left Nicholas, taking Nina with her. She told Nicholas that she had married him only for his money and that Nina was not his child. Nicholas was hurt by that allegation, but he had formed a strong bond to Nina and continues to treat her as his child. Although Nina lived with Jane, she also spent time regularly with Nicholas. There were no formal parenting plans or parenting orders.
In February 2020, Nicholas agreed that Jane could take Nina to England to visit her parents. Nicholas was in London for work during that visit. Jane agreed that Nina could stay with Nicholas in England for two days after Jane returned to Australia, so they could attend his mother’s 90th birthday. Jane returned to Sydney in March 2020 but Nicholas and Nina did not return as agreed. They are still in London. Nina is attending kindergarten in London. Nicholas wants to remain in the United Kingdom with Nina. Jane wants Nina to return to live with her. She is thinking of moving to New Zealand after her parents are settled back there so she can resume her studies.
Jane contacted the Australian Central Authority to notify them that Nicholas had kept Nina in the United Kingdom. The Central Authority is taking steps to have Nina returned and advised Jane to apply to the Australian courts for parenting orders.
Jane commenced proceedings in the Family Court of Australia in June 2020 for an annulment of her marriage to Nicholas, or for a divorce. She has also applied for property orders and parenting orders. Nicholas has applied for the Australian proceedings to be stayed.
1. Does the Family Court of Australia have jurisdiction to hear applications by Jane to annul her marriage to Nicholas and in the alternative for a divorce order; for property orders; and for parenting orders?
2. Assuming that the court has jurisdiction, will it stay those proceedings?
3. Assuming that the court is competent and will not stay those proceedings:
a. Will it annul Jane and Nicholas’ marriage?
b. What law will it apply to determine what parenting orders to make?
4. If an English court granted a divorce in September 2020 on Nicholas’ application, on the basis that Nicholas was domiciled and habitually resident in England, would the English decree of divorce be recognised in Australia?