Anand & Goda

In this matter before Betts J of the Federal Circuit Court of Australia, the husband instituted divorce proceedings in Australia, seeking a divorce order. The parties, who were born and married in India, had relocated to Australia. Following the birth of their child, the wife returned to India with the child and remained there, while the husband stayed in Australia. The husband had previously commenced divorce proceedings in India, which were experiencing significant delays. The wife contended that the Australian court should not entertain the husband's application, arguing that Australia was a clearly inappropriate forum.

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.