Anand & Goda
[2021] FCCA 12
•25 JANUARY 2021
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 later in 2014.
In mid 2014, the wife returned to India with their son. The parties dispute why, but it is common ground that their marriage was still on foot.
In the period between mid 2014 and late 2014, the parties maintained some communication. In late 2014 the husband travelled to India, staying with his own family rather than the wife. He had difficulty arranging to see their son and from his perspective the marriage was at an end by late 2014 when he left India and returned to Australia.
The wife disagrees that the marriage was over at that time.
The parties remained in touch by telephone.
In early 2015 the wife and their son visited Australia briefly, but the husband only found out about the visit after they had already returned to India. The wife and their son have remained living in India ever since. The husband has remained living in Australia and gone on to become an Australian citizen, although he still visits India from time to time.
The husband again spent time with the wife when he travelled to India in for a short period in late 2015. The wife and their son stayed with the husband in his unit on this occasion. There is dispute as to the exact nature of the parties’ relationship during that visit but, whatever the true state of affairs, it is common ground that this was the last time that the parties physically spent any time together.
They still maintained telephone contact up until May 2017 at which time all forms of communication between them broke down.
On 6 September 2017, the husband filed family law proceedings against the wife in the District and Sessions Judges Court in City B, Region C, India (“the Indian Court”). In those proceedings he sought a divorce petition, together with parenting orders permitting him to be able to spend time with their son in India each December.
The wife filed response material in which she opposed the divorce application.
On 20 July 2018, while the Indian proceedings were still on foot, the husband filed the present Application for Divorce in this court. This is the only relief he seeks; he is not pursuing any other matrimonial relief in Australia.
After being served with the husband’s Australian divorce application, the wife filed response material in this court opposing the application. Her position is that this court should not entertain the divorce application at all, on the basis that India is the appropriate forum. She contends that in filing his application the husband was displaying contempt of the Indian Court process. Moreover, she seems to be seeking (or is at least open to) a marriage reconciliation, notwithstanding that her material filed in these proceedings, and in the Indian proceedings, casts in in a most unflattering light. She asserts amongst other things that the husband only married her for the purposes of successfully getting a Visa into Australia, that he was persistently cruel and insensitive towards her, at times physically violent and generally neglectful of, and disinterested in, their son.
The husband deposes that he has no intention of reconciling with the wife. He simply wants to divorce and get on with his life in Australia. His case is that the wife is motivated by spite; that the marriage has long been over and that the wife has been wilfully sabotaging any chance for him to have a relationship with his son which is all he had wanted.
Faced with the wife’s jurisdictional argument in this court, the husband took active steps to discontinue the Indian proceedings. But despite instructing his solicitors in India in May 2019 to prepare an appropriate application for withdrawal, the Indian proceedings still remain “live”. The proceedings, and his application to withdraw, were adjourned on a number of occasions before ultimately being adjourned to “a date to be advised” apparently as a result of the severe impact of COVID–19 on the operation of the Indian Court. The husband’s latest legal advice is that the Indian proceedings will be re-listed next month.
Material relied upon:
At the hearing the husband relied upon:
(a)his Application for Divorce filed 20 July 2018;
(b)his affidavit filed 18 January 2019;
(c)his affidavit filed 6 September 2019; and
(d)his affidavit filed 7 September 2020.
The wife did not appear at the hearing; she has not participated since 2019 despite consistently being given leave to appear by telephone. Notwithstanding this, the husband’s counsel submitted that out of an abundance of caution I should still have regard to her filed material given that the wife had raised a forum issue.
I therefore had regard to:
(a)the Wife’s “Response” to the husband’s application filed 5 September 2018;
(b)the wife’s affidavit filed 1 March 2019; and
(c)the wife’s affidavit filed 10 October 2019.
The husband did not object to the wife’s “Response” being in an incorrect form, nor to her affidavit of 10 October 2019 having apparently been signed without being witnessed by a Notary Public (or at all.)
I have also had regard to the orders that have previously been made in these proceedings.
Key issues to be decided:
The key issues in this case are:
·the forum issue;
and in the event the court decides to hear the matter:
·whether or not there has been an “irretrievable breakdown” of the marriage; and
·whether there are proper arrangements in place for the parties’ son, or alternatively whether the circumstances are such that a divorce order should be made even though the court is not satisfied that there are proper arrangements in place.
The forum issue was the real focus.
Forum non conveniens – the law:
A court is ordinarily obliged to exercise the jurisdiction conferred upon it by statute, where regularly invoked. But if the local forum is a “clearly inappropriate forum” for the dispute then the court must stay the proceedings: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (High Court).
A stay will be appropriate where the Australian proceedings are shown to be oppressive, vexatious or an abuse of process. In Henry v Henry (1996) 185 CLR 571 the High Court held that the question is whether, having regard to the controversy as a whole, the Australian proceedings are “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging”. If so then they are vexatious or oppressive in the Voth sense.
In Henry v Henry the majority observed that:
Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia. In Union Steamship Co of New Zealand Ltd v The Caradale, Dixon J observed of that latter situation that “[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration”. From the parties’ point of view, there is no less - perhaps, considerably more - inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.
It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy, is highly relevant to the question whether the local proceedings are oppressive in the sense of “seriously and unfairly burdensome, prejudicial or damaging” or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. And it follows that courts should strive, to the extent that Voth permits, to avoid that situation.
…
Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.[1][1] These extracts appear at pages 590 – 593 of the judgment
In Talwar & Sarai [2018] FamCAFC 152 the Full Court (Ainslie-Wallace, Ryan and Aldridge JJ) observed at paragraph 24 of their Honours’ reasons that the key issues are whether the controversy between the parties is the same in both jurisdictions, whether or not complete relief is available in the local jurisdiction and whether there is nothing to be gained in the overseas proceedings or whether, on the other hand, the overseas proceedings will give rise to additional or other remedies.
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.
Nor for that matter did the wife file any evidence or submissions suggesting that an Australian divorce order would not be recognised in India.
Absent evidence I am unable to find that an Australian divorce order would, or would not, be recognised in India. As to whether an Indian divorce order would be recognised in Australia, it would seem likely that this is so but again I have no evidence one way or the other. The question may ultimately revolve around the basis for the Indian divorce order.
India does appear to me to be the forum that could more effectively provide for the complete resolution of the parties’ controversy, particularly given that there is presently a parenting dispute still on foot in the Indian Court. The husband’s counsel submitted that this was not an obstacle to the divorce, because:
(a)in the Australian proceedings the husband was only seeking a divorce simpliciter;
(b)the husband is formally withdrawing the Indian proceedings and has no intention of continuing to prosecute any application to spend time with his son in the Indian Court;
(c)the husband otherwise has no intention of trying to use an Australian divorce order to in any way advance his “matrimonial law” position in India. To show his bona fides his counsel volunteered that, if a divorce order is granted, the court could add a notation to that effect.
The husband’s counsel directed me specifically to the Full Court’s decision in Talwar referred to earlier.
The facts of that case bear some similarity to the present. It involved an Indian couple, with concurrent family law proceedings in both India and Australia. The wife had commenced the Indian proceedings first, seeking return of wedding gifts under the Dowry Prohibition Act (India), maintenance and relief under the Protection of Women Act (India). She had not however applied for a divorce.
The relevant court in India made an order positively restraining the husband from litigating the parties’ family law issues in Australia. The husband nonetheless instituted divorce proceedings in the Federal Circuit Court in breach of that injunction.
The wife contended that an Australian divorce order would not be binding in India, that such an order would leave her married in India while divorced under Australian law. The trial judge considered that an unfortunate situation but nonetheless granted the divorce.
In allowing the wife’s appeal, the Full Court said:
64.We turn then to the effect of her Honour’s findings, which is that the husband will be divorced in Australia but that the wife will not be divorced in India. The primary judge described this as “an unfortunate outcome for the wife” but considered that “it alone is not determinative of the matter” (at [66]).
65.In Navarro v Jurado (2010) 44 Fam LR 310 (“Navarro”) at 360, Ryan J took a different view. Her Honour said:
271.The focus of the husband’s submission appeared to be upon the preliminary finding required before a divorce order in Costa Rica may issue. In my view, it is the complete effect of the application to which attention should be drawn. That is, an Australian divorce order would change the parties’ status in Australia from married spouses to being divorced. Because the Australian divorce order would not be recognised in Costa Rica, the wife would remain married to the husband while he was, as he said he would, in all likelihood simultaneously to be married to his Australian wife. This situation would continue until the wife’s application for divorce in Costa Rica was granted. Such an outcome would be productive of serious mischief. Even if the husband chose not to remarry, that he would be divorced and the wife remain married to him until her divorce application was granted is equally seriously mischievous. This was compelling evidence of injustice to the wife in the Voth sense.
66.In a separate judgment, Thackray J regarded this as a significant matter (at [85] and [86]).
67.Counsel for the husband submitted that the finding of the primary judge was supported by authority and referred us to Dane & Kabrig [2013] FamCAFC 113 (“Dane”). In that case, Strickland J found that the fact that an Australian divorce would not be recognised in India was not sufficient to prevent the Australian divorce proceedings from continuing. However, the facts there were very different. The parties had arrived in Australia in 2004 as a couple. Both had become Australian citizens and neither had any plans to return to India.
68.In the present case, the wife was living in, and would continue to live in, India. There was no prospect of her coming to live in Australia and no reason for her to do so. The lack of a divorce in India would have a significant and adverse impact on her life. That was not the position in Dane.
69.The outcome of being divorced in Australia but not in India where the wife lives is, in our opinion, such an inappropriate result when there are proceedings on foot in India which avoid that dichotomy. As a factor to be taken into account it supports a finding that the Australian proceedings are “productive of serious and unjustified trouble and harassment” and “seriously and unfairly burdensome, prejudicial or damaging” (Oceanic at 247).[2] It cannot be dismissed as merely unfortunate.
[2] A reference to Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 (High Court)
In Talwar the Full Court also considered that the wife’s other claims against the husband in the Indian proceedings were also significant as they demonstrated that the court in India could provide more effectively for complete resolution of the matter:
72.…All of the issues before the parties could be resolved in India but only the divorce, and possibly maintenance, could be resolved in Australia.
…
89.In Henry, the majority clearly regarded disputes with respect to property, maintenance and the custody of children to be “ordinarily…aspects of an underlying controversy with respect to the marital relationship (at [37]). As there were proceedings already on foot in India as to aspects of the marital relationship, we consider that this passage supports the wife’s contention that the Australian proceedings are vexatious and oppressive.
I was also referred to Jasmit & Jasmit [2014] FCCA 972, an earlier decision of his Honour Judge Riethmuller. In that case, his Honour found that Australia was not a “clearly inappropriate forum” and proceeded to grant a divorce on the husband’s application notwithstanding that the wife had earlier instituted proceedings against the husband in India for the restitution of conjugal rights and the payment of maintenance which proceedings remained on foot.
In so finding, his Honour said:
21.…Ordinarily a refusal by a foreign jurisdiction to recognise a divorce order granted by an Australian court would not be of such significance as to the lead the Australian court to refuse to grant relief by way of a divorce. If the law were otherwise, many Australian citizens (particularly the thousands of Indian Hindus who have emigrated to Australia) would be denied benefits and protections of Australian law simply because they happened to marry in another country…
It does not however appear that his Honour Judge Riethmuller was referred to the Full Court’s earlier decision in Navarro. His Honour’s decision also pre-dates the Full Court’s observations in Talwar.
In the more recent decision of Malik & Joshi [2019] FCCA 1360, her Honour Judge Harland granted the husband a divorce notwithstanding that the wife had earlier instituted proceedings against him in India which included a divorce application, maintenance, relief under both the Dowry Prohibition Act (India) and relief under the Protection of Women from Domestic Violence Act (India). The wife in that case positively contended that the Indian court would not recognise an Australian divorce order. Her Honour Judge Harland observed that the wife carried the onus of proving that Australia was a clearly inappropriate forum and had failed to do so. Citing Talwar, her Honour observed that a party seeking to rely upon a foreign law carries the onus of proving it but her Honour noted that the wife’s evidence as to effect of Indian law was deficient.
Are these proceedings oppressive, vexatious or an abuse of process in a Voth sense so as to make Australia a clearly inappropriate forum?
The facts of the present case are distinguishable from those in Talwar. In the present case the Indian Court has not restrained the husband from bringing these proceedings, so the significant issue of judicial comity in Talwar does not arise. Moreover, the wife does not positively contend that an Australian divorce order would not be recognised in India and neither party has called any evidence on point.
Another important distinction is that, aside from a claim for costs arising out of her defence of the Indian proceedings, the wife has not brought any other substantive matrimonial claims against the husband in the Indian Court. Moreover, the husband is withdrawing the Indian proceedings.
The wife does not contend that her costs application in the Indian court would be in any way affected by an Australian divorce order. It would be surprising if it did. Certainly this court has no jurisdiction to make any order as to the costs of the Indian proceedings.
Thus in a substantive sense, complete relief is available in the present proceedings.
The husband’s institution of divorce proceedings in Australia was prima facie oppressive or vexatious given that there were concurrent divorce proceedings pending in India: Henry. Though there could be said to be only one underlying controversy between the parties (Henry) the husband is withdrawing the substantive Indian application leaving just a bare costs debate on foot in the Indian court.
Ultimately, as the applicant for a stay, the wife has the onus of establishing that Australia is a “clearly inappropriate” forum.
In all the circumstances I am not satisfied that Australia is a “clearly inappropriate forum” in a Voth sense. It follows that I must proceed to determine the husband’s application in accordance with Australian law.
Has the marriage broken down irretrievably?
Section 48 of the Family Law Act requires that spouses be separated for a continuous period of at least twelve (12) months preceding the filing of a divorce application. Here that requirement is easily met.
I am not persuaded that there is any reasonable likelihood of cohabitation being resumed.
Arrangements for the parties’ son:
Where spouses have children under 18 years of age, s 55A of the Family Law Act provides that a divorce order does not take effect unless the court declares that it is satisfied that:
·proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
·there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.
The parties’ son is now six (6) years old. On the evidence before me, the wife and her family have properly provided for him. The child has high needs, having been diagnosed as on the Autism Spectrum Disorder as well as having Attention Deficit Hyperactivity Disorder.
The wife’s evidence is that the child’s health has greatly improved as a result of the quality of care he has been provided.
It is common ground that the husband has not physically spent any time with his son since September 2015, and their communication by telephone has since completely broken down.
The wife’s evidence is that the husband has not provided the child with any support, emotional or financial. The husband does not take issue with that in his material, though to be fair he says that the wife has actively prevented him from having a relationship with his son.
The wife accuses the husband of family violence, which if true would be a relevant consideration in terms of the child’s care, welfare and development.
In short, there are so many unknowns about the child that I cannot be satisfied that proper arrangements have been made in the sense envisaged by s 55A although, to be clear, the evidence does show that the wife and her family have been able to provide for the child’s day-to-day needs to a high standard. I do not understand the husband to dispute that.
The husband’s position is that he simply wants to be able to get on with his life. In my view, a divorce order should take effect even though I cannot presently be satisfied that proper arrangements are in place for the parties’ son. I so declare pursuant to s 55A(1)(b)(ii) of the Family Law Act.
Conclusion:
For these reasons I will grant a divorce order.
I will also order that the husband provide a copy of these reasons and orders to the Indian Court in the interests of transparency, judicial comity and so that the Indian Court is apprised of the husband’s representations and assurances to this court in respect of the Indian proceedings.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 25 January 2021
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