Alobi & March

Case [2025] FedCFamC1F 216

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Alobi & March [2025] FedCFamC1F 216

File number: SYC 2606 of 2024
Judgment of: ALDRIDGE J
Date of judgment: 3 April 2025
Catchwords: FAMILY LAW – JURISDICTION – Where the husband contends Australia is an inappropriate forum for the hearing of the wife’s parenting and property applications – Where the parties have involved themselves in many proceedings in India – Application of principles – Where all the major assets are in Australia – Where there is no evidence that an Indian court would make orders in relation to property in Australia – No property proceedings presently on foot in India – Where the child is in India – Where there are custody proceedings on foot in India – Australia is not a clearly inappropriate forum for the property dispute – Australia is a clearly inappropriate forum for the parenting dispute whilst the child remains in India – Stay of parenting proceedings whilst the child is in India.
Legislation: Hindu Marriage Act 1955 (India) ss 25, 27
Cases cited: Talwar & Sarai (2018) FLC 93-855; [2018] FamCAFC 152
Division: Division 1 First Instance
Number of paragraphs: 54
Date of hearing: 10 March 2025
Place: Sydney
Solicitor for the Applicant: Guardian Family Law
Counsel for the Respondent: Mr Connor
Solicitor for the Respondent: Pannu Lawyers

ORDERS

SYC 2606 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ALOBI

Applicant
AND:

MR MARCH

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

3 APRIL 2025

THE COURT ORDERS THAT:

1.The parenting proceedings are stayed pending either:

(a)The return of the child to Australia; or

(b)The filing of an application for orders to facilitate the child’s return to Australia.

2.The parties and any lawyers on the record shall personally attend a Conciliation Conference with a Registrar at 9.00 am on Thursday 10 April 2025.

3.The parties are to confer and file a draft joint balance sheet and proposed minutes of order by 4.30 pm on Wednesday 9 April 2025.

4.The matter is listed for directions in person before Justice Aldridge on Monday 14 April 2025 at 9.30am.

5.The parties are to provide minutes of proposed orders in relation to the directions necessary to progress the property dispute to a final hearing by email to the chambers of Justice Aldridge by 4.30 pm on Friday 11 April 2025.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or…

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Alobi & March [2025] FedCFamC1F 216
Case
[2025] FedCFamC1F 216
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CaseChat Overview and Summary

The matter before the Court involves a dispute between Ms Alobi and Mr March, who were married in India in 2018 and have a child born in 2022. The wife and child moved to India in late 2022 and have not returned. The husband filed a petition in India in early 2024 seeking divorce and various orders, including custody of the child. The wife filed an application in Australia on 8 April 2024 seeking parenting and property orders. The husband filed an application in India seeking orders restraining the wife from continuing her proceedings in Australia, which was dismissed. The husband also filed an appeal in the High Court in India against the dismissal, which is yet to be heard and is listed for early 2025.

The primary legal issues before the Court were whether Australia was an appropriate forum for the hearing of the wife’s parenting and property applications, and if so, whether the proceedings should be stayed pending resolution of the Indian proceedings. The Court considered the principles established in *Re Mark* and *Re Colin*, which provide that Australia is not a clearly inappropriate forum to hear a matter if the applicant has significant ties to Australia, if all or substantially all of the major assets are in Australia, or if there is no evidence that a court in another country would make orders in relation to property in Australia. The Court also considered whether the child’s welfare would be best served by staying the Australian proceedings pending resolution of the Indian proceedings.

The Court found that Australia was not a clearly inappropriate forum for the property dispute as all the major assets were in Australia. However, the Court found that Australia was a clearly inappropriate forum for the parenting dispute while the child remained in India. The Court noted that the child had been residing with the wife in India since she was an infant, and that there were ongoing custody proceedings in India. The Court concluded that it would be in the best interests of the child for the Australian parenting proceedings to be stayed until the child returned to Australia or an application was made to facilitate the child’s return. The Court ordered that the parenting proceedings be stayed pending either the return of the child to Australia or the filing of an application for orders to facilitate the child’s return. The Court also made orders in relation to the property dispute and the progression of the matter.

The Court’s decision was based on the principles established in *Re Mark* and *Re Colin*, as well as considerations of the child’s welfare and the ongoing proceedings in India. The Court found that the Australian proceedings were not a clearly inappropriate forum for the property dispute, but that they were a clearly inappropriate forum for the parenting dispute while the child remained in India. The Court’s orders reflect this finding and provide for the stay of the parenting proceedings pending resolution of the Indian proceedings. The Court also made orders in relation to the progression of the property dispute.

Orders

Orders of the court

SYC 2606 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ALOBI

Applicant

AND:

MR MARCH

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

3 APRIL 2025

THE COURT ORDERS THAT:

1. The parenting proceedings are stayed pending either:

(a) The return of the child to Australia; or

(b) The filing of an application for orders to facilitate the child’s return to Australia.

2. The parties and any lawyers on the record shall personally attend a Conciliation Conference with a Registrar at 9.00 am on Thursday 10 April 2025.

3. The parties are to confer and file a draft joint balance sheet and proposed minutes of order by 4.30 pm on Wednesday 9 April 2025.

4. The matter is listed for directions in person before Justice Aldridge on Monday 14 April 2025 at 9.30am.

5. The parties are to provide minutes of proposed orders in relation to the directions necessary to progress the property dispute to a final hearing by email to the chambers of Justice Aldridge by 4.30 pm on Friday 11 April 2025.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The proceedings were transferred to Division 1 on 27 May 2024.BACKGROUND Despite a short relationship of less than four years, and the absence of significant wealth, the parties have involved themselves in many proceedings in India as the following makes clear. The husband arrived in Australia in 2013. He was granted permanent residency in 2017 and became an Australian citizen in 2019. The husband purchased an apartment in Suburb B in 2017. The parties’ relationship began in 2018. They were married in City C, India in late 2018. Shortly after the wedding, the husband returned to Australia. He returned to India for the parties’ traditional Indian wedding which took place in 2019. The wife came to live in Australia in 2019. The parties’ child, X was born in 2022. In late 2022 the wife and the child went to India and have not returned. The husband filed a petition in India in early 2024 seeking a divorce and other such order the court might make. The wife filed her application in Australia on 8 April 2024. In mid-2024, the husband filed a custody application in India seeking “custody” of the child as well as the following orders:(i)to pass an order in favour of the petitioner thereby directing the respondent to handover the interim custody of the minor child [X] aged about 2 years […] during the pendency of the present petition,(ii)pass a direction to the Respondent to give access to the child over phone calls and video calls and also share the day to day development of the female child, medical report and coordinate for the future of the girl child [X];(iii)to pass a direction to the respondent for visitation right when the petitioner comes to India from Australia on daily basis,(iv)pass necessary orders for allowing the petitioner to have unhindered and unsupervised access to the daughter and to bring him to his house and/or any other place,(v)pass necessary orders granting the Petitioner un-supervised visitation with the minor daughter by way of video conferencing twice a week(vi)grant regular and exclusive overnight visitation rights of minor daughter [X] to the Petitioner,(vii)direct the Respondent to not to remove minor girl child [X] from the jurisdiction of this Hon’ble Court.(viii)Any other or further Order(s), which this Hon’ble Court may deems fit may kindly be passed in favour of the petitioner and against the respondent. (Annexure “G” to the husband’s affidavit filed 3 March 2025, application for interim custody in the Family Court in [City C]) The application was brought by the husband’s aunt, Ms D, to whom he had granted a special power of attorney. In mid-2024, the husband filed an application in the Family Court in City C, India, seeking orders restraining the wife from continuing her proceedings in Australia. This was dismissed on the same day. The husband filed an appeal in the High Court in India in late 2024. The appeal is yet to be heard and is listed for early 2025. In mid-2024, the wife laid a complaint with the police in City C against both the husband and a number of his relatives “on account of cruelty, harassment, misappropriation of the stridhan under the relevant provisions of Indian penal Code and other Laws” (Annexure “O” to the husband’s affidavit filed 3 March 2025, letter from the wife dated 10 April 2024). It was agreed at the hearing before me, that stridhan is property received by a woman during her lifetime over which she retains an absolute right of ownership.

Evidence

Evidence Before The Court

It is possible that there can be different outcomes as to the parenting and financial issues raised.The expert evidence A registrar of the court directed the parties to appoint a single expert to advise on Indian law. Whilst they were able to agree on the expert, the parties, most unhelpfully, were not able to agree on the questions to be asked. They then separately sought the opinion of the expert on their own questions, some of which (particularly those of the wife) were asked in inappropriate and leading terms. The expert provided two reports. This led to the unhappy submission made by the wife that parts of the expert’s opinion not favourable to her should not be accepted. As to whether or not parenting orders made in Australia would be recognised in India, the expert said the following in his report to the wife:6. Is it fair to write that precedents in Indian family law recognise foreign country’s primary jurisdiction in cases where a child, who is a foreign citizen, and mother have established permanent residency and significant ties to that country while the father is a foreign citizen permanently residing in that country including Australia?Yes, it is fair to state that precedents in Indian family law recognize the primary jurisdiction of a foreign country in cases where a child, who is a foreign citizen, and the mother have established permanent residency and significant ties to that country. This is particularly relevant when both parents are foreign citizens, and the father resides permanently in that country. Indian courts, while considering the child’s nationality and the country of residence, prioritize the welfare of the child as the paramount concern. In situations where both parents are citizens of a foreign country and the child has substantial connections to that country, such as citizenship, residence, or familial ties, Indian courts may acknowledge the jurisdiction of that foreign country to resolve matters related to custody, parenting, and other pertinent issues. This aligns with international family law principles that emphasize the child’s best interests and the consistency of jurisdictional decisions regarding the child’s upbringing. (Emphasis in original)(Annexure “C” to the single expert’s affidavit filed 6 March 2025, p.9–10 of the report in response to the wife’s letter of instruction) In answer to the husband’s question the expert said:3.Enforceability of Orders made in the Federal Circuit and Family Court of Australia:1.Would the Indian Court recognize and/or consider valid the decision of the Australian Court, if the Australian Court:3.1.Were to find that Australia is not a clearly inappropriate forum to hear the Mother’s application for parenting, property and spousal maintenance issues?If the Australian Court finds that Australia is not a clearly inappropriate forum to hear the Mother’s application for parenting, property, and spousal maintenance issues, the Indian Court would generally recognize and consider the decision valid, provided it meets certain criteria under the Indian legal framework.Under the Code of Civil Procedure, 1908 (CPC), specifically Section 13, a foreign judgment is recognized as conclusive unless it falls under specific exceptions. These exceptions include:a)The judgment was not pronounced by a court of competent jurisdiction.b)The judgment was not given on the merits of the case.c)The judgment is founded on an incorrect view of international law or a refusal to recognize Indian law.d)The proceedings were not in consonance with the principles of natural justice.e) The judgment was obtained by fraud.f) The judgment is in violation of Indian law.If the Australian Court’s decision does not fall under any of these exceptions, the Indian Court is likely to recognize and enforce the decision. The principle of comity and respect of foreign judgments would generally apply, especially if the Australian Court is deemed competent and the proceedings were fair and just. Therefore, if the Australian Court’s decision meets the criteria set out in Section 13 of the CPC, the Indian Court would likely recognize and consider it valid.Moreover, it is important to consider that the child has been residing with her mother in India since she was [an infant]. This prolonged stay in India is significant in determining the child’s welfare and may influence the Indian Court’s approach to recognizing or enforcing foreign orders related to child custody and maintenance. Additionally, the marriage was solemnized in India, which gives Indian Courts jurisdiction over family matters, including divorce, custody, and maintenance. These factors further support the potential for Indian courts to respect and enforce a foreign judgment, provided it aligns with Indian legal standards and international principles.(Annexure “B” to the single expert’s affidavit filed 7 March 2025, p.13–14 of the report in response to the husband’s letter of instruction)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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