A & G
[2000] FMCAfam 55
•30 October 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A & G | [2000] FMCAfam 55 |
| FAMILY LAW – Dissolution of marriage – stay of proceedings – jurisdiction – forum non-conveniens. Family Law Act 1975 Voth v Manildra Flour Mills (1990) 171 CLR 538 |
| Applicant: | G A |
| Respondent: | B G |
| File number: | ZP 2034 of 2000 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 October 2000 |
| Delivered at: | Parramatta |
| Delivered on: | 30 October 2000 |
REPRESENTATION
| Counsel for the Applicant: | Mr Straing |
| Solicitors for the Applicant: | Messrs Michael Brown Solicitors, Liverpool |
| Counsel for the Respondent: | Mr Dura |
| Solicitors for the Respondent: | Messrs Beswick Solicitors, Sydney |
ORDERS
The wife’s application for a stay of the Application for Divorce is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 2034 of 2000
| G A |
Applicant
And
| B G |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the wife for an order staying the hearing of the husband’s application to dissolve the marriage between the parties. Whilst the wife concedes that this court has jurisdiction because of the provisions of section 39(3) of the Family Law Act 1975 and because of the respondent’s residence, she claims that this court is a “clearly inappropriate forum” and that this court should decline to exercise its jurisdiction.
Background
The parties were born in India and were married at [omitted] in India [in] 1978. They have two adult children, both of whom reside in Australia. They own real property in India but not in Australia.
The parties resided in India from the date of their marriage. On 10 June 1995 the husband obtained a visa allowing him to become a permanent resident of Australia. He travelled to Australia in February 1996, leaving the wife and the children in India. He returned to India about 6 weeks later. In December 1997, the husband, wife and children travelled to Australia and commenced to reside here. The wife had also obtained a visa allowing her to become a permanent resident of Australia on
10 June 1995. The two children became Australian citizens.The relationship between the parties deteriorated, and the husband returned to India on 15 June 1998, seeking employment. He was unsuccessful and returned to Australia about a month later. He left Australia again, on 12 October 1998, and remained in India for about 6 months. He returned to Australia in April 1999 and remained until November. He again returned to Australia in March of this year and remained until July. It is his intention to reside in India permanently.
The wife resides in Australia but intends to return to India.
Forum non conveniens
The wife opposes the granting of the divorce. She seeks a stay, asking that this court should not exercise the jurisdiction it undoubtedly has. She relies on the decisions of the High Court of Australia in Voth v Manildra Flour Mills (1990) 171 CLR 538 and Henry & Henry (1996) FLC 92-685 (or (1996) 20 Fam LR 171).
The wife relies on the proposition stated by Brennan CJ in Henry:
“Before proceedings instituted under section 39(3) of the Family Law Act are stayed, two conditions must be satisfied: first, that the Family Court is a clearly inappropriate forum in which to determine proceedings for a decree of dissolution of the marriage in question; secondly, that there is some forum in another country which has and can exercise jurisdiction in proceedings for a decree of dissolution of marriage” (at 83, 116).
The High Court said in Voth at 558 that “The availability of relief in a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one”.
The husband argues that the application for divorce is genuine as the parties have had a substantial connection with Australia and, indeed, the wife is a permanent resident of this country.
Availability of relief in India
There is no doubt that there is a forum in India which can exercise jurisdiction in proceedings for a decree of dissolution of marriage. Under Section 13 of the Hindu Marriage Act 1955 (India), a court may dissolve a marriage on a petition presented by a husband or wife. The grounds for divorce include adultery, cruelty, desertion for a period of not less than two years, ceasing to be a Hindu, being incurably of unsound mind, suffering from leprosy, suffering from venereal disease, renouncing the world by entering any religious order, or not having been heard of as alive for seven years.
Section 19 gives jurisdiction to the District Court where the marriage was solemnised, where the respondent resides, where the parties last resided, or where the petitioner resides in a case where the respondent resides outside the jurisdiction or has not been heard of as alive for at least seven years.
It would be open to the husband to resume his residence in Bangalore, where the marriage was solemnised, and commence proceedings in the District Court. The wife would have the right under s.27 of the Act to commence property proceedings in that same court.
It is not clear, however, that either party would be able to show a ground for divorce under Section 13 of the Hindu Marriage Act sufficient to obtain a decree. The husband, in his Application for Divorce in this Court, claims that the marriage has irretrievably broken down, as evidenced by a period of 12 months separation. This is the only ground for divorce in Australia (Family Law Act 1975, s.48). It is a ground not available under the Hindu Marriage Act.
There is no evidence before this court that would enable either party to satisfy a court that any of the grounds for divorce had been made out. How could the husband obtain relief from an Indian Court? There is no evidence to show that the wife has deserted the husband for two years, ceased to be a Hindu, is incurably of unsound mind, suffers from leprosy or a venereal disease, has renounced the world by entering a religious order, or has not been seen alive for seven years. If the husband wishes to obtain a divorce in India, he must either show that his wife has had voluntary sexual intercourse with a person other than himself or that she has treated him with cruelty (Hindu Marriage Act, s.13[1]( i) and (i– a)).
Similarly, the wife is in no better position. She claims that she and the husband have not been separated for 12 months, let alone two years. It would not be open to her to commence divorce proceedings in India at this stage, unless she could prove adultery or cruelty.
The decision in Voth is relevant in that it shows that the court must consider the availability of relief in a foreign forum. What should be remembered in this case is that the relief sought is not a property application, but, as Brennan CJ said in Henry:
“proceedings for a decree of dissolution of marriage”.
I am not satisfied that there has been shown evidence that either party could obtain relief by way of a petition for divorce in the District Court in India.
No relevant connection of any substance
In Henry, Brennan CJ held that there was no real connection between the marriage and Australia. In that case, the parties had married in Germany and resided together in Germany and Monaco. They had last cohabited in Monaco, where the wife had commenced a petition for divorce. The parties spent no part of their married life in Australia and had no property in Australia. The only connection between the marriage and Australia was that the husband was an Australian citizen who had returned to reside in Australia.
The fact situation here is somewhat different. Both parties have been granted permanent resident status in Australia, although the husband no longer wishes to avail himself of that status. They came to Australia for the benefit of the children, to obtain an Australian education. The children, now adults, have become Australian citizens. The wife says that she only intends to stay in Australia long enough to see that the children were settled in Australia. The wife still resides and works in Australia.
I am satisfied that this case can be distinguished from Henry in that:
a)The parties’ marriage has a real connection with Australia; and
b)There is no relief presently available in another forum in respect of a dissolution of the marriage.
The wife’s application for a stay of the Application for Divorce is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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