AYAD and RASHID

[2024] FCWA 83

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: AYAD and RASHID [2024] FCWA 83

CORAM: COHEN J

HEARD: 29 APRIL 2024

DELIVERED : Ex tempore

FILE NO/S: [REDACTED]

BETWEEN: Ms AYAD

Applicant

AND

Mr RASHID

Respondent

Catchwords:

DIVORCE - Review of Registrar's decision - Where Respondent to divorce asserts Registrar erred in finding that proper arrangements for the child have been made - Where the Court was concerned the Respondent or his solicitor were using the Court's processes for immigration purposes - Where Court received new evidence on Review - Where the parties were already divorced pursuant to the law of [Country A] - Where Review allowed, divorce set aside and proceedings dismissed

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Counsel A

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	A Chambers

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ayad and Rashid has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1On 14 November 2023, the applicant wife, [Ms Ayad] ("the wife") filed an application for divorce.

2The respondent husband, [Mr Rashid] ("the husband") filed his response on 19 December 2023 whereby he set out his objection, which is founded on his concern the Court could not be satisfied proper arrangements had been made for the parties' son, [Child A] born 30 August 2022 (also known as [omitted]).

3The divorce application was listed for hearing on 12 January 2024. The husband's solicitor applied for and was granted leave to participate in that hearing by telephone link. In the Court's letter to the husband's solicitor, it was made clear the Court would attempt to contact him on two occasions, and in the event there was no answer, it would be recorded as a non-attendance.

4At the hearing on 12 January 2024, the Court made multiple attempts to contact the husband's solicitor to no avail. The Court proceeded with the divorce hearing and a divorce order was made.

Review application

5On 18 January 2024, the husband's solicitor filed a Form 2 Review ("the review application") seeking to "rescind" the divorce order, citing a miscarriage of justice pursuant to s 58 of the Family Law Act 1975 (Cth) ("the Act").

6Seemingly, the husband's solicitor's office was closed when the divorce hearing was listed, which did not seem to be a relevant consideration noting he was clearly aware of said hearing, having applied for and been granted leave to participate in the same by telephone. Notwithstanding having made such a request, the husband's solicitor elected to drive from [State B Capital City] to [State C Capital City] in circumstances where he did not have reception for a period of approximately three hours. In his affidavit filed in support of the review application, he claimed it would be a miscarriage of justice to deny his client the opportunity to argue his case in respect to the divorce application; in particular, his client's position in respect to Child A's care arrangements.

7Notwithstanding my concern that a solicitor would make a request to attend a divorce hearing by telephone, noting the importance of the same, and then knowingly put himself in a position where he may not have been available to participate in the hearing – for whatever reason, I accepted the review application for filing as the husband should not have been unfairly prejudiced by the actions of his solicitor.

8The proceedings came before me [in] January 2024, whereby I made various procedural orders and extended the time for the divorce order to take effect. The hearing was most unusual and requires a brief explanation of the parties' and Child A's circumstances.

The parties' circumstances

9The wife was born in Australia [in] August 2000; she is currently 23 years old and is a student.

10The husband was born [in] January 1993 in [Country A]; he is currently 31 years old. As I understand it, he is unemployed. Again, as I understand it, the husband immigrated to Australia following the commencement of his relationship with the wife. The husband currently does not have, but has applied for, Permanent Residency. In his response, the husband deposes to struggling with his own visa, although he does not provide any specific evidence as to what this means. At various hearings, the husband's solicitor, who seemingly does immigration work, assured the Court the husband's current visa is not tied to the wife and that his resistance to the wife's divorce application is unrelated to the husband's immigration circumstances.

11The parties were married [in] April 2019 in [City A], Country A. The wife provided the Court with a copy of the parties' marriage certificate.

12Child A was born in Country A [in] August 2022.

13The parties separated [in] September 2022 with both parties returning to Australia at some point thereafter. Child A remained in Country A with the paternal grandmother, the husband's brother and his wife.

14The wife says there is no communication between herself and the husband, nor is there any communication between herself and the paternal family. She does not have nor is she seeking to have a relationship with Child A.

15The husband asserts the wife abandoned Child A in hospital following his birth, and upon being contacted by hospital staff, his family retrieved Child A. According to the husband, he is sending money back to Country A to provide financial support for Child A, who he does not believe is safe in Country A arising from the allegations made by the wife that the husband engaged in "homosexual activity".

16It is the husband's contention that Child A should be cared for by the husband in Australia, which he is unable to facilitate given his immigration status. He says Child A is entitled to Australian citizenship by descent, which can only be applied for by the wife, which she is refusing to facilitate; the wife confirmed the same at a subsequent hearing.

17At the hearing [in] January 2024, the wife made reference to the parties having been divorced in Country A, which was a circumstance to which neither party had previously deposed. The wife also advised the Court that the parties had entered into a formal custody agreement in Country A whereby she agreed to the husband assuming full care and responsibility for Child A.

18In compliance with my orders made on that date, the wife provided the Court with the original and translated copies of both documents, which both the husband's solicitor and I have had an opportunity to review.

19At today's hearing, the husband's solicitor submitted the wife had not provided any meaningful information about Child A to the Court, that she had done so intentionally, and he appeared to invite the Court to make an inference as to why. He also submitted the wife was not accepting of her responsibilities as Child A's parent, which seemingly could be discharged if she endorsed an application for Child A to obtain Australian citizenship. He reiterated in his submissions that if the wife did so, the husband would withdraw his opposition to her divorce application because he would then be satisfied proper care arrangements had been made for Child A.

20I observe that this Court cannot force a parent to have a relationship with a child, or to require a parent to accept responsibility for any aspect of a child's care arrangements in the absence of a willingness on their part to do so. Ultimately, facilitative orders may be made, but it would be up to the person whether they intended to comply with those orders; the wife has been clear that she does not wish to have a relationship with, or any responsibility for, Child A.

21The parties were formally divorced [in] September 2022 by the [relevant court] in City A (proceeding number [redacted]). I observe the divorce order was made in the husband's absence but understand from the wife, which counsel for the husband confirmed, that the husband was served with the relevant documents and given the opportunity to participate in the proceedings, which he elected not to do. According to counsel for the husband, this was because of the nature of the wife's allegations against him.

22The custody agreement is dated 19 October 2022. It states the wife has handed custody of Child A to the husband without coercion in line with combating violence against woman and families in City A Governorate. It further references the husband accepting Child A's custody. The document was witnessed and sealed by the [relevant legal officer]. In addition to signing the document, it has been endorsed with the parties' fingerprints and contains various seals.

23The husband accepts the parties were divorced in Country A. He also accepts the parties entered into a custody agreement in respect to Child A but maintains his position that this Court cannot grant a divorce order in circumstances where Child A remains in Country A with the husband's family and is unsafe by virtue of the wife's allegations against the husband. He is steadfast in his position that the only way this Court could be satisfied that proper arrangements have been made for Child A would be for this Court to take whatever steps were required to advance Child A's Australian citizenship application.

24At a hearing [in] March 2024, the husband's solicitor confirmed that if the wife endorsed the necessary citizenship application documents, the husband would consent to her application for a divorce as he, and the Court, could then be satisfied that proper arrangements have been made for Child A.

The filing of further documents

25On 23 April 2024, without leave of the Court, the husband sought to file further affidavit evidence of himself, which was largely repetitive of earlier evidence already provided by him. For present purposes, the husband confirmed at [6] of the affidavit that the parties were divorced in Country A.

26I accepted the affidavit for filing to ensure the husband had every opportunity to present material to the Court that he considered relevant to the issue to be determined by me.

Legal principles

27The husband applies under r 322 of the Family Court Rules 2021 (WA) for a review of the divorce order made by a Registrar of the Court, which is an appeal for the purposes of s 55 of the Act.

28The Court's powers on review are set out in r 323. The Court is to conduct an original or de novo hearing and may receive as evidence any affidavit tendered in the first hearing, and any further affidavit or exhibit.

29The parties both accept that a divorce order was made in Country A. I have accepted a copy of that divorce certificate into evidence as Exhibit "A1". I am required to determine as a preliminary jurisdictional issue whether there is a marriage capable of being subject to a divorce order under s 48 of the Act.

30Part XII of the Act deals with the recognition of decrees. Section 104 deals specifically with overseas decrees. An overseas marriage shall be recognised as valid in Australia if any of the six grounds for recognition are satisfied. Relevantly, s 104(3) says as follows:

(3)A divorce … of the parties to a marriage, effected in accordance with the law of an overseas jurisdiction shall be recognised as valid in Australia where:

…

(c)the applicant or the respondent or, [in the case of a joint application for divorce], 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;

31The only relevant qualifications to this recognition is set out in s 104(4) of the Act, which reads:

A divorce .. 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.

Discussion

32It is not in dispute that the jurisdictional requirements set out in s 104(3) of the Act have been met, as the husband was a national of Country A and the parties were domiciled in Country A at the relevant date. Accordingly, the question is whether either of the provisions in s 104(4) of the Act apply.

33In the appropriate circumstances, it could be argued that this is tantamount to a denial of natural justice and require the Court to refuse recognition of the divorce pursuant to s 104(4)(a) of the Act. Nevertheless, the granting of a divorce in the absence of a respondent is not inherently a denial of procedural fairness; there are many divorces granted in this very building in which a respondent does not appear. What is important is the opportunity to respond to the application, which the husband appears to accept he had and elected not to take up for the reason already provided.

34The best evidence of what occurred in the Country A divorce proceedings is the face of the divorce order itself. I am able, but not required, to 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 pursuant to s 104(7)(b) of the Act. I observe the Country A Court refers to:

•hearing personal evidence submitted by the wife;

•the wife's claims or grounds for divorce being proved to the Court throughout the case and its documents;

•the "separation causes" being proved by all evidence methods including the frequent witnesses received on hearing, as assessed by the Court; and

•the decision being based in various "articles rules" of evidence law, laws of personal records and civil proceedings.

35The husband has given no evidence which suggests he was not given an opportunity to answer the case against him. It is my view that notwithstanding the husband's non-involvement in the divorce proceedings, the Country A Court took steps to satisfy itself the wife had established, according to Country A law, the grounds necessary to justify the making of a divorce order. Accordingly, I cannot be satisfied the husband was denied procedural fairness. For the sake of clarity, it is irrelevant whether the grounds raised by the wife would be sufficient in an Australian context; it matters only that they were proved to the satisfaction of the Country A Court applying the laws of Country A. The divorce should not be refused recognition on the basis of s 104(4)(a) of the Act.

36The husband's solicitor previously submitted that s 104(4)(b) of the Act applies on the basis that it would be manifestly contrary to public policy to recognise the divorce as valid in circumstances where this Court cannot be reasonably satisfied that proper care arrangements have been made for Child A. I do not accept this submission.

37With respect to the husband's solicitor, he is conflating the issue of recognition as to the validity of an overseas divorce order which has already been made with the obligations of this Court arising pursuant to s 55A of the Act. Under that provision, the Court must be satisfied that:

•proper arrangements in all of the circumstances have been made for the care, welfare and development of the child before granting a divorce; or

•there are circumstances by reason of which the divorce order should take effect even though the Court is not satisfied such arrangements have been made.

38The Court is not required by s 104(4)(b) of the Act to mandate, as a matter of public policy, that overseas divorces only be recognised when granted on the same conditions as Australian divorces. Had it been intended that such a factor was mandatory, or even a relevant consideration, one would have expected to see this reflected in s 104 of the Act, either expressly or by reference to s 55A of the Act. There is no such reflection.

39The legislative policy is clear. Recognition of the validity of an overseas divorce order is a discrete exercise; it does not, nor should it involve an Australian Court looking behind the overseas divorce order and making value judgments on other jurisdictions' matrimonial causes, except in exceptional cases. It would be improper to conclude a foreign States' divorces "manifestly contrary to public policy" simply because they do not mirror Australian legislative criteria. Such a conclusion would defeat the purpose of s 104 of the Act, which is to prevent, not require, duplicity of divorce proceedings.

40I reject the husband's opposition to the recognition of the Country A divorce order and find that Australian law recognises the divorce order as valid. The parties were not married when the wife filed her application for divorce and no cause of action arises. That is sufficient to dispose of these proceedings.

41In the event I am wrong, I will add that having regard to all of the circumstances, I am satisfied that proper care arrangements have been made for Child A's care, welfare and development. I have reached this conclusion for the following reasons.

42 First, Child A was born in Country A and is a citizen of Country A citizen.

43 Second, the husband entered into a custody agreement in Country A whereby he accepted full responsibility for Child A's care.

44 Third, whilst the husband asserts to having his reasons why he is not or cannot live in Country A, I cannot accept he would have left Child A in the care of those he did not trust or who he did not believe would properly care for Child A.

45 Fourth, on his own evidence, the husband is providing financially for Child A by sending money back to Country A.

46 Fifth, on the husband's submission, his immigration status is not tied to the wife's support. He has made his own application for Permanent Residency, and if approved, the husband will be entitled to sponsor Child A.

47 Finally, whilst the husband's intentions may be bona fide in respect to his concerns and his desire to parent Child A in Australia, these are divorce, not child-related or immigration, proceedings. As I have repeated throughout these proceedings, it is tantamount to an abuse of process to use divorce proceedings to coerce the wife to endorse citizenship documents in circumstances where she is fundamentally opposed to doing so, let alone compel her by way of order.

48For the reasons set out above, had the parties been validly married, I would have upheld the Registrar's decision and affirmed the s 55A declaration by order. However, it was ultimately not necessary to reach a concluded view on s 55A.

49It is my view that the Country A divorce order is valid in Australia. It therefore follows that at the time the wife commenced the proceedings, the parties were not married and as such, her application for a divorce was unnecessary.

Orders

50For the reasons set out above, I make the following orders:

1.The Form 2 Review filed 18 January 2024 be and is hereby allowed.

2.The divorce order made on 12 January 2024 be and is hereby set aside for want of jurisdiction.

3.The Form 3 application filed 14 November 2023 and Form 3A response filed 19 December 2023 be and are hereby dismissed.

4.A copy of the transcript of today's hearing be obtained and provided to the parties free of charge.

5.A copy of the Reasons for Decision be published and provided to the parties via the eCourts Portal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

MF

Associate

1 MAY 2024