Agusalim and Agusalim

[2007] FamCA 211

FAMILY COURT OF AUSTRALIA

AGUSALIM & AGUSALIM [2007] FamCA 211

FAMILY LAW - COSTS - Between parties

APPLICANT: Mrs Agusalim

RESPONDENT: Mr Agusalim

FILE NUMBER: SYF 4333 of 2007

DATE DELIVERED: 9 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 9 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maurice

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Foster

SOLICITOR FOR THE RESPONDENT: Lewis Blyth and Hooper

Orders

1. That the husband pay 25 per cent of the wife's costs as assessed or taxed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4333  of 2007

Mrs Agusalim

Applicant

And

Mr Agusalim

Respondent

REASONS FOR JUDGMENT

Ex -Tempore

1. In this matter the wife seeks costs in relation to an application for divorce which was filed on 2 June 2005 in the Federal Magistrates Court and was transferred to this Court and has been granted by consent today by me. 

2. The parties separated in October 1995.  The husband then asserted that the parties had become divorced in December 1995 by a religious Court in Indonesia.  In fact, there is a letter before me which I shall mark exhibit A, which is from that religious Court.  It is dated November 2005 and it asserts in response to a letter written by the husband's Indonesian lawyer that there is a divorce certificate which evidences a divorce in December 1995.  However, that divorce certificate was not found in the registry of East Jakarta Religious Court and the process of the divorce had not been finalised.  It seems that for a divorce to be completed or finalised it must, in Indonesia, be registered civilly even though it is a religious divorce.

3. The letter makes it clear that the supposed certificate which evidences the divorce came from the husband's attorney rather than from the registry, because, as I have said, it was not found in the registry.  Therefore in November 2005, it must have been clear that the situation in Indonesia was that the husband through his attorney was asserting that he had been divorced and had provided a certificate which seems to make that claim but that the claim was not accepted by the Religious Court as actually amounting to a proper divorce.  It would be easier to accept that because of the way the letter is drafted, at least the interpreted copy of it was drafted, that anyone reading it would be uncertain about whether or not the husband and wife had been divorced in Indonesia by the Religious Court, or whether or not the divorce was valid civilly.

4. However, in March 1996 when the wife applied for consent orders in property matters, she asserted that the marriage has not been dissolved. The husband's response was to the effect of the matters stated in the application. However, it would be a very technical approach to simply tie the husband to having admitted that there was no divorce by this means.  It is quite possible that any lawyer who might have advised the husband or the husband himself might have overlooked the implication of what he said in relation to the divorce because he was referring to all the other matters as well.

5. In June 2005 the wife made an application for divorce in the Federal Magistrates Court and in July that year the husband's response was for the application to be dismissed on the ground that the parties have already been divorced in Indonesia in September 1995.  There were then proceedings and inquiries made in Indonesia.

6. In August 2005, the wife's lawyers were advised by the secretary to the relevant Religious Court in Indonesia again that the December 1995 certificate was not registered in the Religious Court.  In October 2005 the husband did something which seems to me to be an admission that there was no divorce as stated in the original certificate because he filed another application for a divorce in which he said he had never been divorced.

7. The proceedings apparently were the divorce application the husband made. These proceedings were listed in November 2005 in the relevant Religious Court in Indonesia, however the wife first obtained notification of this in December 2005. The same day, the Religious Court granted the divorce in the wife's absence.

8. In May 2006 the wife filed a counterclaim, in effect appealing the decision of  December 2005 in Indonesia on the basis that she had not received proper notification and in August 2006 the East Jakarta Religious Court upheld the wife's counterclaim and rejected the divorce.  This left the situation as one where, on the wife's application before me, there was only the possibility that the wife might have been divorced in Indonesia in December 1995.  There is no suggestion that the wife had ever been informed of this divorce nor any suggestion that she had notes of the application before it was granted, if it ever was granted by the Religious Court.

9. It was right in those circumstances for Mr Foster on behalf of the husband to take the view that an Australian Court was likely not to recognise the divorce if it did take place. Thus it was right of him to permit the divorce application of the wife to become undefended.  But, overall, although the original document is not said to have been forged by the husband or fraudulent, the evidence is silent on that. The husband took steps in Indonesia which indicated that he knew it was not valid and those steps resulted in delay of the current divorce proceedings that I have just granted and in the wife incurring costs which she should not have incurred in the ultimate result, because the divorce should have been undefended in the first place.

10. Each time the matter came before this Court, and it did on a number of occasions pending the outcome of the various things that occurred that I have related, she incurred costs.  It seems to me that this is a case where the circumstances are such that an order for costs might be made, bearing in mind s.117(2)(a).

11. The only relevant matter to be considered so far as the facts which are before me permit is the conduct of the husband to the proceedings and the fact that ultimately he was wholly unsuccessful, which I find that he was.  In fact the husband's conduct to the proceedings that is relevant was that he defended them when he should not have because it should have been accepted from the beginning that either he was not divorced or the divorce was granted in circumstances that would not be recognised in Australia.

12. However, overall, it is my view that the circumstances do not warrant an order that the husband pay all the wife's costs because there is nothing before me to suggest that the husband was responsible for the original misleading certificate.  Despite the fact that he should have understood that there was real uncertainty and that the circumstances were such that the divorce, if it did exist, would not be recognised, there is some basis for him taking the view that the parties might really have been divorced and therefore in defending the application by the wife until at least the issue of his divorce was cleared up and Indonesian divorce was cleared up.  In all of the circumstances, I think that the husband should pay 25 per cent of the wife's costs as agreed or taxed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as AGUSALIM & AGUSALIM