FEDERAL CIRCUIT COURT OF AUSTRALIA
Anand & Goda [2021] FCCA 12
File number(s): NCC 2206 of 2018 Judgment of: JUDGE BETTS Date of judgment: 25 January 2021 Catchwords: FAMILY LAW – divorce proceedings – parties born and married in India – they later relocate to Australia – wife returns to India after their child is born and remains living there – husband remains in Australia and institutes family law proceedings in India including divorce proceedings – Indian proceedings are delayed – husband then institutes concurrent divorce proceedings in Australia - wife contends that this court should not entertain the husband’s divorce application – wife ultimately does not attend hearing – consideration of “clearly inappropriate forum” test - divorce order made. Legislation: Dowry Prohibition Act (India)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Protection of Women Act (India)
Protection of Women from Domestic Violence Act (India).
Special Marriages Act 1954 (India)Cases cited: Dane & Kabrig [2013] FamCAFC 113
Henry v Henry (1996) 185 CLR 571
Jasmit & Jasmit [2014] FCCA 972
Malik & Joshi [2019] FCCA 1360
Navarro v Jurado (2010) 44 Fam LR 310
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491
Talwar & Sarai [2018] FamCAFC 152
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Union Steamship Co of New Zealand Ltd v The Caradale [1937] HCA 1Number of paragraphs: 68 Date of hearing: 11 September 2020 Place: Newcastle Counsel for the Applicant: Mr Duane Solicitor for the Applicant: NLS Law Solicitor for the Respondent: The Respondent did not appear ORDERS
NCC 2206 of 2018 BETWEEN: MR ANAND
Applicant
AND: MS GODA
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
25 JANUARY 2021
THE COURT ORDERS THAT:
1.A divorce order be made, to take effect on 26 February 2021, being one (1) month and one (1) day after handing down of this judgment.
2.The husband is ordered to provide a copy of these reasons and sealed orders to the District and Sessions Judges Court in City B, Region C, India, within twenty-one (21) days and to file an affidavit in this court deposing to same within twenty-eight (28) days.
3.Upon filing of the affidavit referred to in order 2, the proceedings are to be removed from the list of active pending cases.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Anand & Goda is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
Overview:
These are divorce proceedings instituted by the husband and opposed by the wife.
The parties are both Indian by birth and were married there in 2012. In 2014 they relocated to Australia together following successful visa applications. The wife gave birth to their son in Australia just four (4) months…
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CaseChat Overview and Summary
The court was required to determine whether it should exercise its jurisdiction to grant a divorce order, despite concurrent proceedings in India and the wife's submission that Australia was a clearly inappropriate forum. This involved considering the principles established in *Regie Nationale des Usines Renault SA v Zhang* regarding when local proceedings might be considered oppressive or vexatious. The court also had to assess the connections of the divorce proceedings to both countries, the progress of the respective legal actions, the parties' capacities to participate in litigation in each jurisdiction, and the potential for mutual recognition of divorce orders.
Betts J found that while both the Indian and Australian courts had jurisdiction, the Australian proceedings had progressed further towards a final hearing. Although the wife faced some disadvantages in participating in Australian proceedings due to her care responsibilities for the child and lack of local support, the court noted the husband's initial choice to litigate in India and his subsequent pursuit of Australian proceedings. Crucially, the court observed that the Australian Family Law Act 1975 (Cth) operates on the ground of irretrievable breakdown, whereas Indian divorce law, under which the parties married, required proof of matrimonial fault. The husband's counsel did not submit that an Australian divorce order would be recognised in India, and the husband had not provided evidence of Indian law to support such a claim.
Consequently, Betts J made a divorce order, to take effect one month and one day after the judgment was handed down. The husband was ordered to provide a copy of the reasons and sealed orders to the Indian court to ensure transparency and judicial comity, and to file an affidavit of compliance in the Australian court. Upon filing of this affidavit, the Australian proceedings were to be removed from the active list.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. A divorce order be made, to take effect on 26 February 2021, being one (1) month and one (1) day after handing down of this judgment.
2. The husband is ordered to provide a copy of these reasons and sealed orders to the District and Sessions Judges Court in City B, Region C, India, within twenty-one (21) days and to file an affidavit in this court deposing to same within twenty-eight (28) days.
3. Upon filing of the affidavit referred to in order 2, the proceedings are to be removed from the list of active pending cases.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Citing the High Court decision in Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, the Full Court in Talwar emphasised that the applicant for a stay bears the onus of establishing that the local proceedings would be “oppressive in the sense of being seriously and unfairly burdensome, prejudicial or damaging, or vexatious in the sense of productive of serious and unjustified trouble and harassment.”Consideration of the relevant issues in this case: Both the Indian Court and the Federal Circuit Court have jurisdiction in respect of divorce proceedings. The divorce proceedings have a connection to both countries. The Indian proceedings have been on foot since September 2017. They remain at a preliminary “reconciliation” stage. The husband has been seeking their withdrawal. The Australian proceedings have been on foot since July 2018 and they have already proceeded to a final hearing in September 2020. Inferentially, the parties have incurred legal costs in the Indian proceedings as each has had representation. I have no evidence as to the amount of those costs. Inferentially, the husband has incurred legal costs in the Australian proceedings given that he has engaged a solicitor and counsel. The wife would not appear to have incurred legal costs as she has been self-represented throughout. As to their respective capacities to participate in the litigation, I have no evidence as to the parties’ resources beyond noting that each is a professional and each has travelled between the two countries - the husband more often than the wife. No language barriers are evident for either party in either location. That said, I do not consider that each party can participate in the Australian proceedings on an entirely equal footing. The wife is at something of a disadvantage. While she can appear by telephone in Australia – and has done so earlier in the proceedings – it would have been more difficult for her to attend this court in person than for the husband to attend the Indian Court in person given the wife’s full-time care of their son, who has high needs. There is also no evidence that the wife has any family in Australia that she could stay with. In contrast, the husband has family in India who he visits and presumably he either stays with them or in his unit (assuming that he still owns it.) Moreover, having initially chosen to litigate in India I would infer that the husband considered his participation there to be reasonably practicable. As to mutual recognition of orders, the parties were married under the Special Marriages Act 1954 (India) and the husband’s counsel conceded that divorce petitions under the relevant Indian law require proof of matrimonial fault. The Australian Family Law Act 1975 (Cth) abolished Australia’s previous fault-based divorce system and instead introduced “irretrievable breakdown” as the only ground for a divorce. At the hearing the husband’s counsel did not try to submit that an Australian divorce order would be recognised in India, properly observing that expert evidence on the point would be necessary. Nor did the husband tender the relevant Indian legislation or case law which he could have done pursuant to ss 174 & 175 of the Evidence Act 1995 (Cth). This was presumably a forensic decision on his part.