ANKH & BANOS
[2010] FMCAfam 114
•12 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ANKH & BANOS | [2010] FMCAfam 114 |
| FAMILY LAW – Divorce – defended – jurisdiction. FAMILY LAW – Divorce – defended – whether ground for divorce made out. |
| Family Law Act 1975, ss.39(3), 48(1), 48(2) |
| Akbarali v Brent London Borough Council [1983] 2 AC 309 Woodhead & Woodhead (1997) 23 Fam LR 559 |
| Applicant: | MR ANKH |
| Respondent: | MS BANOS |
| File Number: | BRC 11506 of 2008 |
| Judgment of: | Jarrett FM |
| Hearing date: | 1 June 2009 |
| Date of Last Submission: | 16 June 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 12 February 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Frew |
| Solicitors for the Applicant: | Anthony Black Family Law |
| The Respondent appeared in person by telephone link from Cairo. |
ORDERS
I grant a divorce order in the usual terms.
IT IS NOTED that publication of this judgment under the pseudonym Ankh & Banos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 11506 of 2008
| MR ANKH |
Applicant
And
| MS BANOS |
Respondent
REASONS FOR JUDGMENT
Mr Ankh and Ms Banos married in Cairo, Egypt in November, 1999. Mr Ankh alleges that he and his wife separated soon thereafter. Ms Banos does not accept that. She says that the marriage still subsists and that, although the parties have lived apart geographically, there has never been the requisite intention on the part of either of them to separate.
I am satisfied of the following facts:
a)[In] November, 1999 Ms Banos and Mr Ankh married in Cairo, Egypt.
b)On 30 November, 1999 Mr Ankh travelled to Saudi Arabia for work but Ms Banos refused to accompany him.
c)
On 27 September, 2000 Ms Banos submitted a case against
Mr Ankh in the courts in Egypt seeking spousal maintenance from him.
d)On 29 October, 2000 Mr Ankh responded to Ms Banos’ application claiming that Ms Banos was disobedient in not travelling with him to Saudi Arabia.
e)On 18 February, 2001 Mr Ankh submitted documents to the Egyptian court seeking a divorce from Ms Banos.
f)On 3 December, 2001 Mr Ankh returned from Saudi Arabia to Egypt to visit his family
g)
On 4 March, 2002 the Egyptian court ordered on a temporary basis that Ms Banos should receive spousal maintenance from
Mr Ankh.
h)On 20 March, 2002 Mr Ankh returned to Saudi Arabia for work.
i)On 13 May, 2002 whilst Mr Ankh was in Saudi Arabia Ms Banos’ maintenance case was finalised in her favour.
j)On 29 March, 2003 Mr Ankh returned to Cairo where he remained for a period of time (other than 2 trips to Ireland for professional reasons).
k)On 27 March, 2004 Mr Ankh’s application for divorce was granted in Egypt.
l)On 17 April, 2004 Mr Ankh travelled to Malaysia to commence a 3 year work contract.
m)On 22 June, 2005 Ms Banos’ application for spousal maintenance to be paid was finalised.
n)Between 8 - 15 January, 2006 Mr Ankh returned to Egypt for a visit to family and thereafter returned to Malaysia.
o)On 13 December, 2006 Mr Ankh returned to Egypt to pay the spousal maintenance to the Wife and to the Court.
p)On 17 December 2006 Mr Ankh returned to Malaysia.
q)In November, 2007 Ms Banos’ appealed the divorce order based upon religious grounds.
r)On 7 December, 2007 Mr Ankh relocated to Australia to commence a one year work contract. He has remained living in Australia ever since.
s)Sometime in early 2008 (as best as I can tell) Mr Ankh applied to the Egyptian court’s to have the maintenance order in favour of Ms Banos discharged.
t)
That application appears to have been finalised on 13 January, 2009 in Mr Ankh’s favour – the orders were discharged and
Ms Banos ordered to repay the maintenance that she had received.
Since December, 2007 Mr Ankh has travelled to Malaysia to visit friends but on each occasion he has returned to Australia. He resides permanently in Australia.
In paragraph 14 of his Application for Divorce Mr Ankh swears that the date of separation was 18 February, 2001. His evidence, however, is that he believed that he and Ms Banos had separated on 30 November, 1999 only 17 days after their marriage. He now swears that he chose to put the latter date in the application for divorce because that was the date that he filed for divorce in Egypt. I accept his evidence about that.
Mr Ankh swears that each time he returned to Egypt since marrying Ms Banos he has not stayed in the same house as Ms Banos, nor had sexual relations with her or acted in any way as if he considered the marriage to be other than finished. I accept his evidence about that.
An Egyptian court granted Mr Ankh’s application for divorce as I have set out earlier. But as he explains in his affidavit filed on 21 May, 2009:
5. … However the Divorce decree was reversed based on religious grounds. At the time that the Wife and I were married we were both members of the Coptic Orthodox Catholic Church and under that religion divorce could only be applied for and granted on the grounds of adultery. Before I applied for my divorce in February 2001 t I changed my religious denomination from Coptic Orthodox to Maronite Catholic. It was after this change that my divorce was granted. However the Wife was successful in overturning the Divorce Decree on the grounds that the Maronite Catholic religion did not permit divorce in Egypt.
Against that background, the issues raised by Ms Banos in opposition to the grant of a divorce order appear to be:
a)That the court is without jurisdiction to deal with the application because Ms Banos has never resided in Australia;
b)That because the Mr Ankh and Ms Banos are Christian and belong to an Orthodox sect which does not permit divorce except in certain circumstances, the court should not entertain the application.
c)That under Egyptian Family Law Islamic Law should be applied if one party changes their religion and that Mr Ankh’s change of religion was not accepted by the Egyptian Court and consequently the first divorce Order in Egypt was overturned.
d)That Mr Ankh had not formed an intention to separate prior to the application being filed.
Jurisdiction
Section 39(3) of the family Law Act 1975 provides:
39 Jurisdiction in matrimonial causes
…
(3) Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order is filed in a court, either party to the marriage:
(a) is an Australian citizen;
(b) is domiciled in Australia; or
(c) is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.
Mr Ankh is not an Australian citizen. He is present in this country pursuant to a temporary resident visa of some indeterminate description. He swears that he intends to obtain a permanent residency visa and intends to remain in Australia.
Mr Ankh has lived here since December, 2007. He is employed in Australia and has been so since his arrival. In my view it is of little moment that his present visa is temporary. As I have pointed out, he intends to reside in Australia indefinitely, subject to obtaining a permanent residency visa.
In Akbarali v Brent London Borough Council [1983] 2 AC 309 Lord Scarman, with whom all of the Law Lords agreed, said of the phrase “ordinarily resident”:
Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.
His Lordships words were followed in Woodhead & Woodhead (1997) 23 Fam LR 559 a decision which deals with the meaning of the phrase “ordinarily resident” in s.39(3) of the Act. I, too, propose to follow them.
In my view Mr Ankh’s circumstances fall squarely within that statement. I am satisfied that he came to Australia voluntarily and for a settled purpose – namely employment – as part of the regular order of his life for the time being. I am satisfied that he is ordinarily resident in Australia and was in the one year immediately preceding the filing of his divorce application.
I am satisfied that I have jurisdiction in this application.
No grounds for divorce
In Australia, an application for a divorce order in relation to a marriage may only be based on the ground that the marriage has broken down irretrievably (s.48(1) of the Act). That ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order (s.48(2) of the Act).
The matters raised by Ms Banos concerning the religious aspects of the parties’ marriage are not to the point. I am satisfied that the parties have been separated and have lived separately and apart since at least Mr Ankh’s application for divorce in Egypt (2001).
Ms Banos points to Mr Ankh’s recent application concerning maintenance to show that the parties are not really separated. As I apprehend her argument, for Mr Ankh to have succeeded in his case, he had to evince an intention to have her return to the matrimonial home. Her failure to do that – her “recalcitrance” – as it is described in the material was an element in Mr Ankh’s success against her.
Having regard to the history of the matter set out above, I am not satisfied that any statement by Mr Ankh for the purposes of his most recent proceedings in Egypt should be seen as an affirmation by him that the parties in this case were not separated in the relevant sense. Indeed, the very nature of the proceedings against Ms Banos tend to indicate that the parties were not in a relationship such that Mr Ankh felt obliged to continue to maintain her.
Conclusion
I am satisfied that I have jurisdiction in this matter.
I am satisfied that the parties have separated and have lived separately and apart for the requisite period prior to the filing of this application.
I am satisfied that the marriage has broken down irretrievably.
The parties have no children in respect of whom I need to be concerned.
I grant a divorce order in the usual terms.
Costs
Mr Ankh seeks and order for his costs of this application.
The issue is whether there are circumstances by reason of which the general rule set out in s.117(1) in the Family Law Act 1975 (“the Act”) should not apply. Having regard to s.117(2A) of the Act, Mr Ankh contends that this is an appropriate case where the general rule should not apply. He argues that the Court should exercise its discretion to make another order as to costs (namely that sought by him) pursuant to s.117(2) of the Act.
Apart from the assertion that Ms Banos should pay his costs of the application, Mr Ankh makes no other submissions in support of his costs application.
In my view there is nothing in the facts of the matter that would indicate that a departure from the usual rule set out in s.117(1) of the Act is warranted.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Jarrett FM delivered on 12 February, 2010 at Brisbane.
Associate: S. Haysom
Date: 12 February 2010
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