Anwal & Kohri
[2024] FedCFamC2F 1446
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Anwal & Kohri [2024] FedCFamC2F 1446
File number(s): MLC 6837 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 18 October 2024 Catchwords: FAMILY LAW – Opposed divorce application – whether there is an extant marriage – recognition of overseas divorce in Australia – where the parties were married in Country B – where the parties migrated to Australia – where the parties have resided in Australia until 2023 – where the respondent returned to Country B in 2023 to visit family and while there retained lawyer for a divorce application – where the respondent filed for divorce in Country B – residence or domicile or last place of cohabitation qualifications of section 104(3) not satisfied – whether common law rules of private international law of recognition of overseas divorce satisfied – whether applicant for Australian divorce “appeared” in overseas divorce proceedings – where the fact of overseas law required to be proved by admissible evidence – matter requiring expert evidence – where there was no admissible evidence – where not in the interests of justice for court to call expert evidence – apparent anomaly of overseas divorce does not activate section 44(3) time period-section 55A declaration where children not seeing one parent – where none of section 104(3) or common law recognition of overseas divorce conditions satisfied – divorce order made. Legislation: Family Law Act 1975 (Cth) ss 39, 44(3), 48, 49, 53, 55, 55A and 104
Marriage Act 1961 (Cth) s 88C & s 88D
Cases cited: Anderson & McIntosh (2013) FLC 93-568
Dornom and Dornom (1984) FLC 91-556
El Queik v El Queik (1977) 3 Fam LR; FLC 90-224
Henry v Henry (1996) 20 Fam LR 17
Indyka v Indyka (1969) A.C. 33
Mustafa & Mustafa (1981) FLC 91-112
Peters & Peters [1968] P 275
Voth v Manildra Flour Mills Proprietary Limited [1990] 171 CLR 538
Division: Division 2 Family Law Number of paragraphs: 63 Date of hearing: 26 July 2024 Place: Melbourne The Applicant: In Person The Respondent: No Appearance ORDERS
MLC 6837 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ANWAL
Applicant
AND: MS KOHRI
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.A divorce order be made in the marriage of MR ANWAL and MS KOHRI, such divorce to take effect and thereby terminate that marriage one month and one day from the date of these orders.
2.Pursuant to section 55A of the Family Law Act 1975 (Cth) (‘the Act’), IT IS DECLARED THAT proper arrangements in all the circumstances have been made for the care, welfare and development of the children of the marriage, X born in 2007 and Y born in 2012.
AND THE COURT NOTES THAT:
A.The court will email this order for divorce to both parties.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY:
Introduction
The matter of Mr Anwal (‘the Husband’), and Ms Kohri, (‘the Wife’), came before me on 26 July 2024 after being fixed for a one-day final hearing of the Husband's application for a divorce and the Wife's opposition to that divorce. The Wife opposed the Husband’s application for divorce on the ground that the parties have already been divorced in the Court of Country B. The Wife applied for a divorce in Country B in early 2023 and obtained an order for divorce in mid-2024 (‘the Country B divorce’). If the law of the Commonwealth of Australia recognises the Country B divorce, then it appears there would be no extant marriage to dissolve, or end, by an order for divorce in Australia[1] and this could arguably preclude a subsequent divorce order in Australia. This issue shadows this case.[2]
[1] And see Baker J in Mustafa & Mustafa (1981) FLC 91-112 (‘Mustafa’) at 76,837: “As the marriage between the parties has been dissolved by a foreign decree of dissolution which decree is recognised in this country, I therefore dismiss the husband’s application for dissolution of the marriage.”
[2] That would be the case notwithstanding the, on one view, potential anomaly discussed in Anderson & McIntosh (2013) FLC 93-568 (Anderson & McIntosh), where an overseas divorce does not trigger the section 44(3) of the Act time limit, but an Australian divorce does. However, the documents of the Australian divorce would bring the time limit to the attention of the parties, but the documents of the overseas divorce would not.
The Husband appeared in person and the Wife filed documents and appeared at directions hearings but did not appear at the final hearing before me. The Husband issued the current application for divorce on 22 June 2023, and I am satisfied that that has been served upon the Wife. The Wife filed a response to that application on 7 July 2023 and filed affidavits opposing the divorce on 30 January 2024 and 3 June 2024.
After hearing from the Husband and considering the documents in evidence I commenced an ex tempore judgment that day. I dealt with the relevant legislative provisions of the Family Law Act 1975 (Cth) (‘the Act’), which govern divorce in Australia. Those provisions incorporate the common law principles of recognition of a foreign divorce. As I was delivering my reasons, [3] and before I had made any decree or order, I found that my understanding of the common law rules of private international law relating to the recognition of a foreign divorce were not adequate to deal with the matter ex tempore and that I needed the assistance of the precedent cases that dealt with those rules. I then reserved my decision and further reasons. This is my decision and these are my reasons for that decision.
[3] The settled transcript of the attempt at an ex tempore judgment takes up most of these reasons.
Documents considered
I have taken into account this day the following documents:
(1)the affidavit of the Husband filed 15 February 2024;
(2)the affidavit of the Husband filed 11 June 2024;
(3)the family report dated 1 September 2022 that relates to this family (but relates to parenting proceedings and not directly to this contested application for a divorce order);
(4)the Wife’s response and affidavits filed 30 January 2024 and 3 June 2024;
(5)the Child Inclusive Memorandum dated 6 August 2021 arising from interviews of a family consultant at the Federal Circuit Court of Australia (as it then was) on that day;
(6)the Court orders on the Court file;
(7)the application for a divorce of the husband and the response to that divorce filed by the wife; and
(8)various other documents filed by the wife or those solicitors acting on her behalf, including notices of ceasing to act and emails from my associate to the parties.
Background
The background to the matter is not controversial. It is undisputed that in 2005 the Husband and the Wife were married in Country B. It is undisputed that the Husband and the Wife, together with their daughter X, born in 2007, migrated to permanently live in the Commonwealth of Australia in 2011. The second child of the Husband and the Wife, Y, was born in Australia in 2012. It is undisputed that the Husband, the Wife and their children have lived here continuously since 2007. It is undisputed that the Husband and the parties’ two children, (‘the children’), are Australian citizens and the Wife a permanent resident.
It is undisputed that in October 2019 the Husband and Wife separated after living unhappily together in the same house for some time. It is undisputed that soon after separation, a protection order was made in the Victorian Children's Court sitting at Melbourne that had the effect of placing the children in the care of the Husband. [4] It also common ground that save for a meeting at a public event and two occasions when the Wife attended the children's school, the Wife has been unable to spend any time or company with the children since that protection order was made.
[4] The individual states of the Commonwealth of Australia retain and exercise the jurisdiction of protecting children from harm and in the state of Victoria that is exercised by the Children’s Court.
It is clear that the Wife attributes responsibility for the breakdown in her relationship with the children to the Husband. For the purposes of this divorce application, it is unnecessary and inappropriate that I determine that controversy.
Proceed in absence of the Respondent Wife
The first question I determined was whether to proceed in the absence of the Wife. The Husband appears as a litigant in person this day before me, and there is no appearance by the Wife. This matter is listed in the publicly available lists where any person can ascertain that the matter of Anwal & Kohri is listed for trial before me this day. My Associate has called the Wife outside of the courtroom in the event that she was waiting outside. There was no response to that call. Although not necessary, I had my Associate attempt to telephone the Wife on the mobile phone number that she had provided on her own notice of address for service filed on or about 13 April 2024, being a mobile phone number ending in #.... There was no response to that call.
Not only did the Wife file a response to this application for a divorce order, which satisfies me that she is aware of the proceedings, the Wife has filed two affidavits opposing the Husband's application for a divorce order. The Wife filed documents on 30 January 2024 and 3 June 2024. As stated, I take the contents of those documents into account. The matter has been before the Court just regarding the divorce application on many occasions – and far too many.
The divorce application filed 22 June 2023 first returned to Court on 22 August 2023 and the matter was adjourned to 19 September 2023. The Wife's response to the application had been filed prior to the first return date on 7 July 2023. The matter was adjourned 19 September 2023, and orders were made by a Deputy Registrar of the Court on that day, directing the Husband to file and serve an affidavit to respond to the grounds raised by the Wife in contesting the application for divorce. Those orders included the notation as follows:
A. The contested nature of this matter relates to issues of forum. The applicant husband seeks that this Court hear and determine his application for divorce. However, the respondent wife asserts that this Court is a clearly inappropriate forum to determine this application.
The matter was adjourned for fixing of the final hearing, but it was also adjourned to a compliance and readiness check. I observe in passing that the Court's notation characterising the Wife's application, where she appeared on her own behalf by telephone, is generous. The response filed by the Wife complained of a number of matters but acknowledged receiving the papers for divorce and complained that there had previously been a divorce application lodged and withdrawn. The Wife's responds within her affidavit filed 30 January 2024 set out her chronology of events.
2.[In] 2005, the Applicant and I got married in [Country B] in a traditional [religious] marriage. I am religious and consider myself to be a devout [religious person].
3.[In] 2006, we purchased a joint property in [Country B]. It is an apartment block, located at [C Street, Suburb D]. Annexed to this affidavit and marked with the letters “[MSK]-1” is a copy of flat information. We purchased this apartment together and most of the deposit came from my savings as I had worked before I got married. We lived in this apartment before we migrated to Melbourne.
4.[In late] 2011, the Applicant, our [daughter], [X] and I moved to live in Melbourne. We have resided in Melbourne since.
5.[In] 2012, I gave birth to our daughter, [Y].
6.[In] October 2019, the Applicant and I separated.
7.[In] November 2019, the Applicant filed an application for divorce but later withdrew this application.
8.On 12 January 2021, the Applicant initiated parenting proceedings in the Federal Circuit and Family Court of Australia (FCFCOA). The final hearing in relation to the parenting is listed for a three-day hearing on 26 February 2024.
9.[In early] 2023, I filed a divorce application at [Country B Court].
10.On 22 June 2023, the Applicant initiated this divorce application before the FCFCOA.
11.I am an Australian resident. I am a citizen of [Country B].
12.All my family including my parents and siblings are still living in [Country B] and because of this, I consider myself to still have close ties and connections to [Country B].
Divorce proceedings in [Country B]
13.[In] 2022, I went back to visit my family in [Country B] and engaged a lawyer, [Ms E], to assist me with applying for a divorce in [Country B Court]. To date, I have spent around $7,000 in relation to these divorce proceedings in [Country B]. This is a significant sum of money for me.
14.[In early] 2023, I filed the divorce application. Annexed to this affidavit and [MSK]-2, filed at [Country B Court].
15.The next pre-trial conference will be [in early] 2024. A hearing or trial date will be fixed at the upcoming pre-trial conference. To date, we have had about three court hearings in relation to the divorce proceedings. This is because the Applicant has refused to participate in the proceedings. My lawyer has informed me that the divorce is probably going to be concluded soon, somewhere between [early] 2024 to [mid] 2024.
16.I initiated the divorce proceedings in [Country B] because I am a [religious person] and it is important to me for the [Country B] Court, as the [religious] Court, to pronounce the divorce…
(emphasis added)
The highlighted passages were not challenged or contradicted by the Husband. I accept that evidence. The temporary nature of the Wife “visiting” Country B is significant when I deal with recognition pursuant to section 104(3) of the Act and the common law rules of private international law later in these reasons.
In addition, the Wife's response complained of the Husband's role in interfering with her relationship with the children. She asserted:
16.I initiated the divorce proceedings in [Country B] because I am a [religious person] and it is important to me for the [Country B] Court, to pronounce the divorce. Annexed to this affidavit and marked … is a copy of an email from my solicitor in [Country B] explaining the divorce process. As set out in her email, the Court has the power to order the Applicant to pay [an allowance to] me, which is basically maintenance by the Applicant to me during the [time] period of [divorce]. The Court also has the power to order the Applicant to pay [monies]. Finally, the Court has the power to order for the division of matrimonial home and other matrimonial assets.
17.As stated above, the Applicant and I own an apartment in [Country B] and I am seeking for a property settlement. Currently, the apartment is empty and I don’t even have the keys. I still have some of my personal belongings in the apartment, which has been empty since early 2020.
18.The Applicant and I are not on talking terms and have not spoken since we separated. We are not able to negotiate a property settlement in relation to the [Country B] apartment. I have attempted to serve the documents on the Applicant and he has refused to accept service and has refused to engage in the divorce proceedings in [Country B].
19.I respectfully request the Honourable Court dismiss the divorce application of the Applicant.
On 19 September 2023, the Wife, being a litigant in person, would have been assisted by the Judicial Registrar as to Court procedures. Out of that process fell the allegation that this Court was a clearly inappropriate forum. In fact, the Wife’s explicit and stated position was that this Court lacks jurisdiction because the parties’ marriage took place in Country B and so the parties’ marriage was governed by religious law.
The matter was next before the Court on 9 January 2024 when the matter was adjourned to a compliance and readiness hearing before the Chief Judge on 1 March 2024. I note that on that order, the Wife’s address was stated to be F Street, Suburb G (a suburb near Melbourne), Victoria. On 1 March 2024, the matter was adjourned for a further compliance and readiness hearing on the 4 June 2024, again before the Chief Judge. On 4 June 2024, the Husband and the Wife appeared before the Chief Judge both in person. On that day, the matter was listed before me for a hearing estimated to be of one day’s duration on 14 June 2024. That order included the following notation:
A.The Respondent filed an affidavit on 3 June 2024, which indicates that the Applicant and the Respondent were divorced in [Country B] and a decree of dissolution took effect [in mid] 2024. Notwithstanding, the Applicant seeks to continue these proceedings and seeks a divorce order in Australia.
To further elongate the matter, I was unable to accommodate the matter on the date fixed by those orders, that is, 14 June 2024. My Associate advised the parties by email that the matter would not proceed on 14 June 2024 but would proceed before me on 26 July 2024 at 10.00am. That email was sent to the email address that the Wife had provided on her notice of address for service, and that email address is referred to in various documents before the court. I am satisfied that the advice of the hearing being on 24 July 2024 was, in fact, emailed to the Wife.
Further, there were further emails then sent by the Husband to my Associate regarding the hearing before me, and those emails were “cc’d” (which once upon a time stood for “carbon copy”, and the custom continues of referring to documents sent contemporaneously by electronic communication to more than one email address) to the Wife. None of those emails “bounced back” to the court.
Further, whenever the Husband has emailed a document to the court or to my Associate, he has “cc’d” the document to the Wife’s known email address. He gave evidence before me today that none of those emails that he has “cc’d” to the Wife have “bounced back” to him, and, of course, I note that the Wife appeared in person before the Chief Judge on 4 June 2023. Hence, I am satisfied of two things:
(a)The Wife is aware of the proceedings, and has had an opportunity to participate in these divorce proceedings; and
(b)the Wife has been made aware of the hearing this day.
Hence, I found that it was appropriate to proceed in the absence of the Wife on the day fixed for final hearing.
The legislation about divorce
I now turn to the application for a divorce. An application for a divorce order is governed by Part VI of the Act, that is, sections 39 and 48 through to sections 60, and those relevant provisions are as follows:
Section 39 Jurisdiction in matrimonial causes
(1) Subject to this Part, a matrimonial cause may be instituted under this Act:
(a) in the Federal Circuit and Family Court of Australia (Division 2); or
(b) in the Supreme Court of a State or a Territory.
…
(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.
…
Section 48 Divorce
(1) In application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
(2)Subject to subsection (3), in a proceeding instituted by such an application, the 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.
(3)A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
Section 49Meaning of separation
(1)The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
(2)The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
…
Section 53Circumstances occurring before commencement of Act of outside Australia
A decree may be made, or refused, under this Part by reason of facts and circumstances notwithstanding that those facts and circumstances, or some of them, took place before the commencement of this Act or outside Australia.
…
Section 55 When divorce order takes effect
(1)Subject to this section, a divorce order made under this Act takes effect by force of this section:
(a)at the expiration of a period of 1 month from the making of the order; or
(b) from the making of an order under section 55A;
whichever is the later.
…
Section 55A Divorce order where children
(1)A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:
(a)that there are no children of the marriage who have not attained 18 years of age; or
(b)that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:
(i)proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
(ii)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.
(2)Where, in proceedings for a divorce order in relation to a marriage, the court doubts whether the arrangements made for the care, welfare and development of a child of the marriage are proper in all the circumstances, the court may adjourn the proceedings until a report has been obtained from a family consultant regarding those arrangements.
…
Marriage is governed by the Marriage Act 1961 (Cth). Relevant provisions include:
Section 88C Application of Part
(1)This Part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where:
(a)under the local law, the marriage was, at the time when it was solemnised, recognised as valid; or
(b)if the marriage was solemnised by or in the presence of a diplomatic or consular officer of another foreign country:
(i)under the law of that other foreign country, the marriage was, at the time when it was solemnised, recognised as valid; and
(ii)at the time when it was solemnised, the solemnisation of the marriage was not prohibited by the local law.
(2)Where a marriage (not being a marriage referred to in subsection (1)) that was solemnised, whether before or after the commencement of this Part, in a foreign country:
(a)is, at any time in relation to which the validity of the marriage falls to be determined, recognised as valid under the local law; or
(b)if the marriage was solemnised by or in the presence of a diplomatic or consular officer of another foreign country and, at the time when it was solemnised, the solemnisation of the marriage was not prohibited by the local law--is, at any time in relation to which the validity of the marriage falls to be determined, recognised as valid under the law of that other foreign country;
this Part applies to and in relation to the marriage from and including that time.
Section 88D Validity of marriages
(1)Subject to this section, a marriage to which this Part applies shall be recognised in Australia as valid.
(2)A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if:
(a)either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last - mentioned marriage was, at that time, recognised in Australia as valid;
(b)where one of the parties was, at the time of the marriage, domiciled in Australia--either of the parties was not of marriageable age within the meaning of Part II;
(c)the parties are within a prohibited relationship within the meaning of section 23B; or
(d)the consent of either of the parties was not a real consent for a reason set out in subparagraph 23B(1)(d)(i), (ii) or (iii).
…
To summarise those matters, to obtain a divorce order, the starting necessary position is there must be a valid marriage, and a valid marriage recognised by Australian law. The long and the short of it is that the law of Australia recognises marriages that took place in foreign or overseas lands provided that under the local law, that is, the place of the foreign marriage, the parties were married in accordance with the law of the country where the marriage took place unless there was some invalidating circumstance.
Those invalidating provisions include the ordinary common sense matters of, according to Australian law, bigamous marriage or that the parties or either of them were not of marriageable age, or that the parties were in a prohibited relationship of consanguinity, or that the consent to marriage was not real consent. In this case it's common ground that the marriage in Country B in 2005 was a valid and proper marriage: hence the law of Australia unequivocally recognises that marriage.
When the Husband filed his application for divorce, he filed a document headed Certificate of Marriage and it bore the copy entry number #... and the date 2005. It is undisputed that that is the certificate of the marriage between the Husband and the Wife. The only ground for a divorce order in the Commonwealth of Australia is that the marriage has broken down irretrievably. The only evidence that the marriage has broken down irretrievably (that will be accepted to demonstrate that fact), is that the parties had been separated, in the sense of not having a marriage relationship and thereafter live separately and apart, for a period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order. [5]
[5] Section 50(1) permits a resumption of cohabitation for up to 3 months with a further separation where a total period of at least 12 months prior to the filing of the application to encourage attempts at reconciliation of the marriage.
In this case, it is common ground that the parties lived separately and apart since separation in October 2019. That date can be reliably and readily ascertained because it is recorded in contemporaneous records of police records and State of Victoria Child Protection Authority records. The Husband filed his current application for a divorce order on 22 June 2023. At that time the parties had been separated for more than three years.
I am satisfied that the parties had lived separately and apart for a continuous period of more than 12 months immediately prior to 22 June 2023. That is common ground. I will shortly turn to the issue of section 55A, that is, whether there are proper arrangements for the two children of the marriage, who are below the age of 18 years.
First duty to ensure jurisdiction
The first duty of a court is to ensure or determine whether or not there is jurisdiction. I need to determine that in this case, because the Wife, despite her absence from court this day, has in a formal response asserted that the Court did not have jurisdiction. The court order of 19 June 2024 referred to “inappropriate forum”. There is a difference between an inappropriate forum, and whether or not there is jurisdiction. Where there are competing forums for the hearing of the same application, the law in Australia is settled, and was settled by the decision of the High Court of Australia in the matter called Voth v Manildra Flour Mills Proprietary Limited [1990] 171 CLR 538.
In the context of a party seeking a stay of proceedings, the Court determined that there would be a stay of proceedings only if the Australian forum was the “clearly inappropriate forum”. That was because such a test articulated the injustice of proceedings in an Australian court being oppressive in the sense of being seriously and unfairly burdensome, prejudicial, or damaging, or vexatious in the sense of being productive of serious and unjustifiable trouble and harassment that would warrant the proceedings not being determined by the Australian Court.
In Henry v Henry (1996) 20 Fam LR 178 (‘Henry v Henry’), the High Court dealt with the principle, again, in the context of proceedings under the Family Law Act. The High Court in Henry v Henry qualified the observation that there was not necessarily a prima facie right to proceed, and such issue depended upon the facts of the case at hand, but confirmed in proceedings under the Act that the clearly inappropriate forum test applied.
Is there jurisdiction?
Before I get to the clearly inappropriate forum test, in the circumstances where that has been raised by an officer of the court based on the Wife’s allegations, I must determine whether there is jurisdiction. It is undisputed that the Husband is a citizen and resident of Australia. As a citizen and/or a resident of Australia, he is entitled to apply for a divorce order of his marriage, regardless of whether the marriage took place in Australia or in Country B, or anywhere else, provided that marriage in a foreign jurisdiction was not disqualified by the provision of section 88C or 88D of the Marriage Act. There is no suggestion in this case that any of the provisions of section 88D disqualified the marriage as a proper marriage.
I am satisfied that this court jurisdiction to hear the application of the Husband for a divorce order.
The circumstances of the Country B divorce, pursuant to the law in Country B, requires some careful consideration. As a general rule, the courts of Australia recognise and pay appropriate respect to the decisions of the courts of Country B. If the parties are already divorced in accordance with Australian law, it is not appropriate, and not sensible, that I attempt to make a divorce order in regard to a marriage that, under Australian law, no longer exists.[6] In this case, because I ultimately determine, for the reasons given, that this Country B divorce is not recognised according to the law of Australia, it is unnecessary that I determine, or confirm, the proposition that a second divorce is precluded if the prior overseas divorce is recognised by the law of Australia.
[6] And see the statement of Baker J in Mustafa cited at the first footnote to these reasons.
It is undisputed that by the time this Court came to deal, eventually, after many court appearances, with the Husband’s application that the Wife had obtained a divorce order from the court in Country B. I am satisfied that that divorce order in Country B Court was regularly obtained, in the sense that it is clear that the Husband had notice of the proceedings and had an opportunity to participate. Indeed, he filed a defence to the application of the Wife. He has deposed that, as a matter of financial circumstances, and being the father with the caring responsibility of the two children of the parties, he was practically prevented from travelling to Country B to participate in those proceedings. He has also announced an intention to appeal the divorce order.
The Husband’s position of why he seeks a divorce according to the law of Australia, rather than a divorce order pursuant to the law of Country B, is straightforward. He is an Australian citizen, has resided in Australia since 2011, has raised his family of the children (citizens of Australia) in Australia, he lives and works in Australia, and he seeks a divorce order in accordance with the law of the land where he is a citizen and where he lives. I am satisfied that the provisions of section 39 of the Act are satisfied and, hence, that there is jurisdiction. So far, so good.
Foreign divorces are recognised in Australia: section 104
The Family Law Act provisions carefully consider what foreign divorce orders should be regarded as recognised, or valid, in Australia. Those matters were previously dealt with according to the common law relating to the conflicts of law between jurisdictions. The Act deals with that matter in Part XII at section 104. Section 104 is headed “Overseas Decrees”. I recite relevant parts.
Section 104 Overseas decrees
(1) In this section:
“applicant”, in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means:
(a)the party at whose instance the divorce, annulment or legal separation was effected; or
(b)where the divorce, annulment or legal separation was effected at the instance of both the parties--each of the parties.
“marriage” includes a purported marriage that is void.
“relevant date”, in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means the date of the institution of the proceedings that resulted in the divorce, annulment or legal separation.
“respondent”, in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means a party to the marriage, not being a party at whose instance the divorce, annulment or legal separation was effected.
(2)For the purposes of this section, a person who is a national of a country of which an overseas jurisdiction forms part shall be deemed to be a national of that overseas jurisdiction.
(3)A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, effected in accordance with the law of an overseas jurisdiction shall be recognised as valid in Australia where:
(a)the respondent was ordinarily resident in the overseas jurisdiction at the relevant date;
(b)the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was ordinarily resident in the overseas jurisdiction at the relevant date and either:
(i)the ordinary residence of the applicant or of that applicant, as the case may be, had continued for not less than 1 year immediately before the relevant date; or
(ii)the last place of cohabitation of the parties to the marriage was in that jurisdiction;
(c)the applicant or the respondent or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was domiciled in the overseas jurisdiction at the relevant date;
(d)the respondent was a national of the overseas jurisdiction at the relevant date;
(e)the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was a national of the overseas jurisdiction at the relevant date and either:
(i)the applicant or that applicant, as the case may be, was ordinarily resident in that jurisdiction at that date; or
(ii)the applicant or that applicant, as the case may be, had been ordinarily resident in that jurisdiction for a continuous period of 1 year falling, at least in part, within the period of 2 years immediately before the relevant date; or
(f)the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was a national of, and present in, the overseas jurisdiction at the relevant date and the last place of cohabitation of the parties to the marriage was an overseas jurisdiction the law of which, at the relevant date, did not provide for divorce, the annulment of marriage or the legal separation of the parties to a marriage, as the case may be.
(4)A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, shall not be recognised as valid by virtue of subsection (3) where:
(a)under the common law rules of private international law, recognition of its validity would be refused on the ground that a party to the marriage had been denied natural justice; or
(b) recognition would manifestly be contrary to public policy.[7]
[7] A denial of natural justice is not alleged in this case and it is not alleged that the common law potentially disqualifying circumstance of public policy of a petitioner resorting to the foreign jurisdiction solely for the purpose of obtaining the decree applies here nor do I find that applies; See El Queik v El Queik (1977) 3 Fam LR, FLC 90-224, Peters & Peters [1968] P 275 and the discussion in Lexis Nexis Family LAW Commentary at [s 104.6].
(5)Any divorce or any annulment of a marriage, or any legal separation of the parties to a marriage, that would be recognised as valid under the common law rules of private international law but to which none of the preceding provisions of this section applies shall be recognised as valid in Australia, and the operation of this subsection shall not be limited by any implication from those provisions.
(6)Notwithstanding anything contained in this section, the annulment in accordance with the law of an overseas jurisdiction of a marriage solemnized under Part V of the Marriage Act 1961, being an annulment on the ground only of non - compliance with the formalities prescribed by the law of the jurisdiction in which the marriage was solemnized, shall not be recognised as valid in Australia.
(7)For the purposes of this section, a court in Australia, in considering the validity of a divorce or an annulment of a marriage, or a legal separation of the parties to a marriage, effected under a law of an overseas jurisdiction:
(a)where the respondent appeared in the proceedings for the divorce, annulment or separation:
(i)is bound by the findings of fact on the basis of which a court of the overseas jurisdiction assumed jurisdiction to grant the divorce, annulment or separation; and
(ii)may treat as proved any other facts found by a court of the overseas jurisdiction or otherwise established for the purposes of the law of the overseas jurisdiction; or
(b)where the respondent did not appear in the proceedings for the divorce, annulment or separation--may treat as proved any facts found by a court of the overseas jurisdiction or otherwise established for the purposes of the law of the overseas jurisdiction.
(8)For the purposes of the preceding provisions of this section but without limiting the operation of those provisions, a divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, shall be deemed to have been effected in accordance with the law of an overseas jurisdiction if it was effected in another overseas jurisdiction in circumstances in which, at the relevant date, it would have been recognised as valid by the law of the first - mentioned overseas jurisdiction.
(9)Where a divorce or the annulment of a marriage is to be recognised as valid in accordance with this section, the capacity of a party to that marriage to remarry in accordance with the law of Australia is not affected by the fact that the validity of the divorce or annulment is not recognised under the law of some other jurisdiction.
(10)The preceding provisions of this section apply in relation to divorces, annulments and legal separations effected whether by decree, legislation or otherwise, whether before or after the commencement of this Act, and, for the purposes of this section, any decree, legislation or other process by which it is established that a purported marriage was or is to become void shall be deemed to be an annulment of the marriage.
(emphasis added and addressed later in these reasons)
The provisions are in mandatory terms: “A divorce …shall be recognised as valid in Australia where…. (any of the following provisions apply)”. It is not a matter of discretion.
It is clear enough that the law of Country B does provide for divorce and so section 104(3)(f) of the Act is not engaged.
Hence, for this divorce in Country B to be recognised pursuant to section 104(3) in Australia;
(1)the applicant[8] for divorce must be ordinarily a resident of Country B; or
(2)the applicant for divorce must have been ordinarily resident in Country B for not less than 1 year before the day of the filing of the application for divorce;[9] or
(3)the applicant for divorce must have been ordinarily resident in Country B for a continuous 12 month period falling within 2 years immediately prior to the filing of the application; or
(4)the last place of cohabitation of the Husband and Wife was in Country B; or
(5)the application of the common law rules of private international law recognises the Country B divorce as valid in Australia.
[8] Or if a joint application, one of the applicants.
[9] The relevant date is the date of the application being made in the foreign land.
The Wife did not assert that she was ordinarily a resident of Country B. She asserted she was ordinarily a resident of Melbourne, Australia, and I accept that unchallenged assertion. The Wife vigorously participated in the Australian Family Law Act proceedings about the children’s living arrangements (‘the children’s proceedings). I infer that she did so on the basis that she lived in Australia and lived or resided nearby to where the children lived with the Husband. The addresses that she has provided as her address, or where she lived throughout the children’s proceedings, were all in Australia and in or around Melbourne.
The Wife’s application (an originating motion) for the Country B divorce, dated early 2023, included the assertions that:
This originating Summons is taken out by the abovenamed Plaintiff who resides at:
Location [Country B]
Postal Code […]
Level No […]
House No. […]
Street Name […]
Building Name […]
Overseas Address
The Wife’s affidavit filed 30 January 2024 at annexure MSK-3 annexes an email of advice from her solicitor. The solicitor’s address, and I infer usual professional address, is the same address.
Save for this assertion of residence, I was unable to find any evidence of the Wife residing in Country B at any time, ever, since migrating to Australia. The Wife asserted, and I accept, that at all times since migration that, “we have resided in Melbourne since [migrating to Australia]”[10]. It is apparent that the Wife was present in Country B and attended the hearing on the day of the Country B divorce order.
[10] See [4] of the Wife’s affidavit filed 30 January 2024 in opposition to the Husband’s application for divorce in Australia.
The Wife’s assertions of considering herself to have close ties to Country B were not challenged and I accept that is how she felt at relevant times. I accept that, although a resident of Australia since late 2011, the Wife was and is a citizen of Country B and is a devout religious person and that it is important to her for “the [Country B] Court, as the [Religious] Court, to pronounce the divorce”.[11] I accept that the Wife owns property in Country B and has family there.
[11] At [16] of the Wife’s affidavit filed 30 January 2024.
However, I am satisfied that at all material times the Wife lived in, that is resided in, and was domiciled in Australia: not Country B.
The last address of the Wife known to the Husband was an address in Suburb G, Victoria. At the hearing before me, the Husband stated that he was unaware of the Wife’s current address. However, service on the Wife of the application for divorce and the accompanying documents had been successfully effected at that Suburb G address in mid-2023.[12] On the evidence before me I am satisfied that the Wife was residing in Australia for the relevant time period. I am so satisfied on the basis of the following information:
[12] According to the affidavit of service by hand of Mr L filed in 2023.
•The Wife’s assertion at [4] of her affidavit filed 30 January 2024.
•Interim intervention order dated [late] 2022:[13] lists Wife’s address as [H Street, Suburb J];
[13] Exhibited and marked ‘H1’.
•Wife’s response to divorce filed [mid] 2023: signed and witnessed at the Magistrates’ Court;
•Wife’s response to divorce filed [mid] 2023: lists [Suburb G] (a suburb near Melbourne) address as address for service;
•Family Report dated 21 August 2023: states ‘[Ms Kohri] rents a room from a family living in [Suburb G] (a suburb near Melbourne)’ and ‘works casually as a [an educator][…] 4 to 5 days each week …’;[14]
•Orders dated 19 September 2023: list Wife’s [Suburb G] (a suburb near Melbourne) address;
•Affidavit of family contact services worker dated 22 February 2024: sets out supervised contact sessions at [Suburb K Shopping Centre] (a suburb near Melbourne) attended by the Wife on 26 October 2023 and 23 November 2023;
•Orders dated 9 January 2024: list Wife’s [Suburb G] (a suburb near Melbourne) address;
•Wife’s affidavit filed 30 January 2024: signed and witnessed in Melbourne;
•Wife’s notice of address for service filed [early] 2024: PO Box […], [Suburb K Shopping Centre], (a suburb near Melbourne);
•Wife’s affidavit filed 3 June 2024: signed and witnessed at [Suburb K] (a suburb near Melbourne), Victoria.
The conundrum of section 104(7): “bound by findings of fact”
[14] At paragraph 4 and 5.
I refer to and repeat the recitation of section 104(7) of the Act, above, in these reasons. The CCH commentary on the Family Law Act 1975 opines:
Proof of facts [¶3-360]
An Australian court may treat as proved any facts found by an overseas court or otherwise established for the purposes of the overseas law where the respondent did not appear in the overseas proceedings (s 104(7), Family Law Act 1975 (Cth)).
Where the respondent did appear in the overseas proceedings, s 104(7) provides that the Australian court is bound by the findings of fact on the basis of which the overseas court assumed jurisdiction to grant the overseas decree. The Australian court can treat as proved any other facts found by the overseas court.
When dealing with section 104 and the recognition of foreign divorces in Australia, if the Husband “appeared in the proceedings” I am bound by the facts that are the basis for the overseas court assuming jurisdiction. That would appear to be so, even if those facts (as found by the overseas court as the basis for jurisdiction) are entirely contradicted by the evidence before the Australian court, or in this case as found by me.
The Husband filed a “memorandum of defence” in the Country B proceedings. Otherwise, he did not participate in the Country B divorce proceedings and refused to do so. I do not infer that his “defence” was qualified in any way such as would permit an inference of an assertion of lack of jurisdiction or that it was the equivalent of an appearance with a denial of, or without acceptance of, or submission to, the jurisdiction.
Hence, I am satisfied that the Husband did “appear” in the Country B proceedings.
Law of foreign jurisdiction to be proven by expert evidence
But by what findings of fact am I bound so bound by section 104(7)? The settled law of Australia, or at least of the Australian Family Law Act courts, is that the law of a foreign or overseas country is to be proved as a matter of fact and one requiring expert evidence. It is settled law that a Judge, or his or her Associate, is not to inform him or herself, of the law of a foreign country by a private study or investigation of the law of the overseas or foreign country, no matter how thoroughly that may be intended to be done or how readily that could be obtained, even in the case of a close neighbouring country with a comparable legal system and not dissimilar legal traditions and practices and a legal system held in high regard by the Australian courts and legal profession.
In this case neither party has provided any evidence of what facts would be assumed by the Country B court in assuming jurisdiction as it did. I have resisted the temptation to have a fossick around in texts and online to attempt to work that out. Notwithstanding that, I am satisfied that the Country B court will have found that there was a valid marriage and that it was appropriate, according to the law of Country B, to grant the Wife’s application for a divorce. However, I am not informed of what other facts, if any, enabled or compelled that court to assume and exercise jurisdiction. I am not informed as to what residence requirements, if any, are required for that court to assume jurisdiction.
I am not satisfied that it is in the interests of justice, in this case, to further adjourn or elongate this matter by this court identifying, obtaining, bringing to the attention of the parties, tendering and then considering expert evidence of those matters when the parties have not done so.
Section 104(7) does not assist this case
Hence section 104(7), in this case, does not assist the determination of the application. I do not, as a matter of statutory interpretation, regard the respondent “appearing” in the overseas divorce application, of itself, as a further or separate ground that enables or compels the recognition of the overseas divorce.
Do any of sections 104(a) to (e) apply?
The Husband was not a Country B national at the time the Wife filed her application for divorce in Country B. Because of that, and because I am satisfied on the evidence that at all material times since migration to Australia in 2011, both parties have lived in, resided in and been domiciled in Australia at or near Melbourne, it is clear that none of the requirements of section 104(3) (a) to (e) are satisfied or apply so as to permit or compel recognition of the Country B divorce in Australia.
Do the common law rules of private international law apply?
Now, having referred to the authority of Nygh’s Conflict of Laws in Australia,[15] and Lexis Nexis Australian Family Law Commentary at s.104.2-104.10 and the decision of Barblett S.J in Dornom and Dornom (1984) FLC 91-556 (‘Dornom’)[16] and other texts, I am satisfied that the common law rules of private international law applicable to the recognition of foreign divorces is as developed and applied by the House of Lords in Indyka v Indyka (1969) A.C. 33 and recited by Barblett S.J in Dornom at 79,504:
[15] 10th Ed., Davies M, Bell A, Brereton P & Douglas M, Lexis Nexis Butterworths, at p 653-664
[16] In contra distinction to the position with a foreign or overseas jurisdiction an Australian family law Act court is expected to know the law of the jurisdiction and is expected to refer to the usual suspects of authorities to be informed of applicable law.
In Indyka v. Indyka (1969) A.C. 33 at pp. 105-106, Lord Wilberforce said:
“In my opinion, it would be in accordance with the developments I have mentioned and with the trend of legislation – mainly our own but also that of other countries with similar social systems – to recognise divorces given to wives by the courts of their residence wherever a real and substantial connection is shown between the petitioner and the country, or territory, exercising jurisdiction. I use these expressions so as to enable the courts, who must decide each case, to consider both the length and quality of the residence and to take into account such other factors as nationality which may reinforce the connection. Equally they would enable the courts (as they habitually do without difficulty) to reject residence of passage or residence, to use the descriptive expression of the older cases, resorted to by person who properly should seek relief here for the purpose of obtaining relief which our courts would not give. I draw support in this from the opinion of Le Mesurier v. Le Mesurier [1985], A.C. 517, 538 where it was said:
‘Bona fide residence is an intelligible expression, if, as their Lordships conceive, it means residence which has not been resorted to for the mere purpose of getting a divorce which was not obtainable in the country of domicile.’
In Nicholson v. Nicholson (1971) 17 F.L.R. 47, Selby J. decided that Indyka should be followed in Australia and the passage of the speech of Lord Wilberforce, quoted above, applied.
…
[Emphasis added]
In Nygh’s Conflict of Laws in Australia at page 654-655 the learned authors opine:
The principle in Indyka v Indyka is that there must be a real and substantive connection between the applicant and the court exercising jurisdiction.[17] The divorce must be ‘genuine’; that is, the applicant must not have resorted to the jurisdiction for the purpose of evading the law under which he or she was living.[18]
In most cases, the real and substantive connection will be amply covered by the provisions of s 104(3). However, there are a few situations in which the Indyka v Indyka principle will operate to allow recognition outside the scope of s 104(3). For instance, a real and substantive connection has been held to exist where an applicant returned to the jurisdiction of her nationality and obtained a divorce after only six months’ residence.[19] If the applicant seeks to rely on the respondent’s nationality and short-term residence in the jurisdiction in which he or she obtained the divorce, that, too, would suffice.[20] It may be that the last common matrimonial home may provide the necessary connection, if it was abandoned relatively shortly before the commencement of proceedings.[21] Residence of the applicant alone for a period of 12 months or more has been held sufficient under the Indyka principle.[22] Since the Indyka principle is not tied to a specific period of time, but focuses on the seriousness and bona fides of the connection, a shorter period of residence might well qualify, provided that the conduct of the applicant, both before and after the granting of the divorce, indicated that the residential connection was both substantial and genuine.[23]
On the other hand, six weeks’ residence in a notorious divorce haven like Nevada is too short,[24] nor will a Mexican divorce by proxy be recognised under this principle.[25] The mere fact that the spouses were married in a particular country is not a basis for recognition of a divorce decree obtained there many years later when both spouses have lost all connection with that country.[26]
[17] [1969] 1 AC 33 at 104 per Lord Wilberforce.
[18] In the Marriage of Barriga (No 2) (1981) 7 Fam LR 909 at 916 per Baker J.
[19] Nicholson v Nicholson [1971] 1 NSWLR 1.
[20] Mayfield v Mayfield [1969] P 119.
[21] Blair v Blair [1968] 3 All ER 639.
[22] Welsby v Welsby [1970] 2 All ER 467; Munt v Munt [1970] 2 All ER 516.
[23] In the Marriage of Dornom [1984] FLC ¶91–556.
[24] Suko v Suko [1971] VR 28.
[25] In the Marriage of Barriga (No 2) (1981) 7 Fam LR 909.
[26] Peters v Peters [1968] P 275.
At common law the real and substantive connection is about residence
Hence it is clear that the “real and substantive connection” required to satisfy the common law rule is a real and substantive connection of residence and what that is, whether more or less than provided at section 104(3), will turn on the facts and circumstances of the particular case.
An affection for the place of birth or place of ethnic origin, or place of marriage, or a religious connection or belief without more, when the applicant actually resides somewhere else, will not, and does not, satisfy the common law “real and substantive connection”.
Conclusion: Country B Divorce not recognised & application for divorce can proceed
In the unusual circumstances of this case, the Country B divorce obtained by the Wife is not recognised by the Family Law Act 1975 and/or the common law rules of private international law. Hence, as a matter of law, and for the purpose of this application, the marriage subsists in Australia and has not been dissolved by, or the subject of, a divorce that is recognised by the law of Australia. This decision should not be taken as reflecting on the courts of Country B or a finding or comment about the validity of the Country B divorce in Country B or for any other purpose.
Factual findings that permit or compel order for divorce
I am satisfied that on the day of the application filed in this Court, both the Husband and Wife resided in and were domiciled in Australia. I am satisfied the Husband is an Australian citizen. I am satisfied this Court has jurisdiction to hear the Husband’s application. I am satisfied the parties were lawfully married in Country B in 2005. I am satisfied that the parties have been separated and have lived separately and apart for more than one year at the time the Husband filed his application for divorce. I am satisfied the intention to separate or live separately and apart was communicated between the parties at the time of separation. I am satisfied the relationship of marriage has irretrievably broken down.
Section 55A declaration
As to section 55A of the Act (recited above), notwithstanding the profoundly sad circumstances of the two children of the marriage under the age of 18 years not having a meaningful relationship or any time at all with their mother, the Wife, I am satisfied that proper arrangements in all the circumstances have been made for the care welfare and development of those children. I am so satisfied because the Victorian child protection authorities and Court Child Experts (also known as Family Consultants) of this Court have been involved in examining the circumstance of these children’s lives and because robust adversarial litigation about the best interests of those children has been pursued and concluded in this court.
Were I not so satisfied, and in any event, I am satisfied that there are circumstances that mean this divorce should be made. Those circumstances are:
·the marriage has irretrievably broken down; and
·the Husband seeks a divorce pursuant to the law of the land where he and his family live; and
·without divorce pursuant to Australian law, the time limitation of section 44(3) of the Act for the bringing of property alteration and/or maintenance proceedings would not begin to run;[27] and
·the entirely legal in Country B divorce is not recognised in Australia because necessary in Australia residence conditions were not satisfied at the time of the application for divorce.
[27] See Anderson & McIntosh at [74] and [75]. With the Australian divorce, if the parties read the documents, the fact of the time limit pursuant to section 44(3) of the Act is brought to their attention, but the documents of the overseas divorce would not bring that standard time limit to the parties’ attention.
Conclusion
I will make a declaration pursuant to section 55A of the Act and make an order for divorce.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 18 October 2024
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