Bakshi & Mahanta (No 2)
[2022] FedCFamC1A 90
•17 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90
Appeal from: Mahanta & Bakshi [2021] FedCFamC2F 289 Appeal number(s): NAA 38 of 2021 File number(s): ADC 1032 of 2020 Judgment of: ALDRIDGE, HARPER & RIETHMULLER JJ Date of judgment: 17 June 2022 Catchwords: FAMILY LAW – APPEAL – JURISDICTION – Appeal from decision to grant a divorce order – Where there are concurrent matrimonial proceedings in Indian courts – Allegations that husband’s divorce application was frivolous, oppressive, and vexatious – No discretion to refuse divorce order under the Family Law Act 1975 (Cth) once conditions under s 48 satisfied – Where there was no application for a stay of Australian proceedings – Where property adjustment proceedings continue between the parties in Australian court under Part VIII of the Act – Where the parties are domiciled in Australia – Where expert evidence of limited weight and no other factors demonstrating the Australian court was a clearly inappropriate forum – Appeal dismissed – No orders as to costs as both parties self-represented. Legislation: Family Law Act 1975 (Cth) ss 39, 48
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Cases cited: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33
Falk and Falk (1977) FLC 90-247; [1977] FamCA 46
Ferrier-Watson v McElrath (2000) FLC 93-022; [2000] FamCA 219
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Henry v Henry (1996) 185 CLR 571; [1996] HCA 51
Maidment & Insley [2022] FedCFamC1A 48
Navarro & Jurado (2010) 44 Fam LR 310; [2010] FamCAFC 210
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32
RAF & MMF [2005] FamCA 497
Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10
Talwar & Sarai [2018] FLC 93-855; [2018] FamCAFC 152
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 399 ALR 535; [2022] HCA 11
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55
Wigmans v AMP Limited (2021) 388 ALR 272; [2021] HCA 7
Zhu & Xie [2021] FedCFamC1F 86
Davies, Martin et al, Ngyh’s Conflict of Laws in Australia (LexisNexis Butterworths, 8th edition, 2010)
Number of paragraphs: 85 Date of hearing: 3 May 2022 Place: Adelaide, delivered in Sydney The Appellant: Self-represented litigant The Respondent: Self-represented litigant ORDERS
NAA 38 of 2021
ADC 1032 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BAKSHI
Appellant
AND: MR MAHANTA
Respondent
ORDER MADE BY:
ALDRIDGE, HARPER & RIETHMULLER JJ
DATE OF ORDER:
17 JUNE 2022
THE COURT ORDERS THAT:
1.The appellant’s Application in an Appeal filed on 19 April 2022, to file and rely upon
an affidavit dated 18 April 2022, is dismissed.
2.Appeal No. NAA 38 of 2021 is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bakshi & Mahanta (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, HARPER & RIETHMULLER JJ
INTRODUCTION
On 13 September 2021, a judge of the Federal Circuit and Family Court of Australia (Division 2) granted a divorce order between the appellant wife, Ms Bakshi (“the wife”) and the respondent husband, Mr Mahanta (“the husband”).
The wife challenges the divorce order on appeal. The husband opposes the appeal. For the reasons which follow, the appeal should be dismissed.
Both parties were self-represented for this appeal, although they retained legal representation during the original divorce hearing.
BACKGROUND
In order to understand the appeal, it is necessary to set out several key facts.
The parties were both born in India, however they met and commenced a relationship in Adelaide, Australia. In September 2006, they were married by Hindu rite in City E, India. In October 2006, they were married by Christian rite in City D, India.
The parties’ child was born in Australia in 2008.
In 2009, the husband became a permanent resident of Australia, whilst the wife obtained citizenship in 2010.
It appeared to be uncontested before the primary judge, and on appeal, that the parties had resided in Australia since 2004, and had maintained employment in Australia since that time.
The parties separated on 12 May 2018 following an alleged incident of family violence in the matrimonial home which is located in Australia.
On 9 March 2020, the wife commenced proceedings in the Family Court in City D, India, seeking a range of property orders, orders relating to “ancestral property” involving the husband’s extended family, and custody of their child. The wife provided limited evidence of the particulars of her claims in the City D court. She stated that they are “related to Matrimonial disputes / Custody of the ward / Property / [and] Matrimonial offences” (Wife’s Summary of Argument filed 19 April 2022, p.1).
The husband filed an Application for Divorce in the Federal Circuit Court of Australia (as it then was) two days later, on 11 March 2020.
The wife filed a Response on 23 June 2020. Her Response sought an order that the husband’s application for divorce be dismissed.
The contested divorce hearing took place before the primary judge on 13 September 2021.
The parties continue to be engaged in property settlement proceedings under the Family Law Act 1975 (Cth) (“the Act”) in the Court below (“Division 2”). The final hearing of those proceedings was due to commence in May 2022, however has now been adjourned as both parties are presently located in India and not expected to return to Australia until July 2022.
On 3 November 2021, the wife filed a Notice of Appeal from the divorce order.
On 14 December 2021, the appeal registrar made procedural orders for the wife to file her Summary of Argument, List of Authorities, and Application in an Appeal to adduce further evidence by no later than 11 March 2022.
On 15 March 2022, the wife filed an Application in an Appeal seeking an extension of time to file her appeal documents, and for the appeal date on 3 May 2022 to be vacated. This application was heard by Aldridge J on 24 March 2022, who granted the wife an extension of time to file her appeal documents until 15 April 2022, including an Amended Notice of Appeal. The date of the appeal was retained for 3 May 2022. Despite the grant of the extension of time, the wife filed her appeal documents some four days late, on 19 April 2022.
On 19 April 2022, the wife also filed a further Application in an Appeal seeking leave to adduce further evidence. This application was heard concurrently with the hearing of the appeal. This application should be dismissed for reasons given later in this judgment.
During the hearing on 3 May 2022, the wife was granted leave to move on her late filed Application in an Appeal to adduce further evidence, supporting affidavit, Amended Notice of Appeal, and Summary of Argument. The husband made no objection to this, and he was also granted leave to rely on an affidavit filed on 26 April 2022, which broadly speaking, disputed the evidence of the wife.
THE REASONS OF THE PRIMARY JUDGE
The husband’s application for divorce was dealt with on the afternoon of 13 September 2021, during the other associated proceedings relating to the property of the parties to the marriage.
The wife’s Response raised six grounds in opposition to the husband’s divorce application, identified in the reasons at [1] as follows:
1. …
(1) The [wife] has filed an Application in the Family Court in [City D] India seeking orders (inter alia) for an injunction restraining the [husband] from initiating divorce proceedings against the [wife] in the Australian Courts and orders with respect to the [husband’s] property (including ancestral property) in India.
(2) The proceedings before the Family Court in [City D] have not been heard due to the COVID-19 lockdown.
(3) The Application for Divorce was filed on 11 March 2020 after the Indian proceedings were filed.
(4) The Application for Divorce is frivolous, oppressive and vexatious and should be dismissed.
(5) A Divorce Order made by an Australian Court in these circumstances will not be recognised in India.
(6) The issues and matters in question will be better and more completely dealt with in India.
It should be noted that the Response actually set out a seventh ground, that Division 2 “is a clearly an inappropriate forum”. In our view, it is clear that the fourth and sixth grounds identified by the primary judge sufficiently subsumed the seventh ground.
In his reasons, the primary judge made reference to an affidavit of the wife. This appears to be a reference to the wife’s affidavit dated 23 June 2020. In the affidavit, the wife made five factual assertions which are relevant to the disposition of this appeal. First, she had commenced various proceedings in courts in India, including the Family Court in City D, two days before the husband filed his divorce application in Division 2. Secondly, the success of her proceedings in India with respect to matrimonial property and the interests of the parties’ child was contingent on her opposing the husband’s divorce application. Thirdly, a divorce order made by Division 2 would not be recognised by Indian courts. Fourthly, she was seeking interim and permanent injunctions, in the nature of anti-suit injunctions, from the Indian court restraining the husband from applying for a decree of divorce in any Australian court. Fifthly, the husband’s application was frivolous, oppressive and vexatious, the issues in dispute would be better dealt with in India, and Division 2 was a clearly inappropriate forum.
It is clear the primary judge took this evidence into account. In particular, he made reference in his reasons to a letter of advice from Indian lawyers (“the letter of advice”), which was Annexure “[Ms Bakshi]1” of the wife’s affidavit of 23 June 2020.
The authors of the letter of advice asserted the following matters:
(a)The wife had commenced proceedings before the Family Court of City D “pertaining to properties and the custody of the [parties’ child]” against the husband, his relatives and friends and that court has jurisdiction to decide the parties’ matrimonial disputes (at paragraph 1);
(b)The marriage, being a marriage between a Hindu and a Christian can be dissolved only under “section 7 of the Family Court’s Act 1984”, rather than other Indian legislation such as the Hindu Marriage Act 1955 (at paragraph 2);
(c)Courts in Australia have no jurisdiction, and any decree or order of such a court would be treated as nullity in Indian fora (at paragraph 3);
(d)The divorce proceedings in Australia were frivolous and vexatious, there is no reciprocal treaty or arrangement between India and Australia concerning recognition of court orders, and a divorce order would not be recognised in India because irretrievable breakdown is not a ground for dissolution of marriage (at paragraphs 6 and 8); and
(e)The proceedings in India should be completed to prevent a conflict between Indian and Australian courts which would prejudice the rights of the wife (at paragraph 10).
Neither the wife nor, as far as we can tell, the authors of the letter of advice, state that the wife has applied for dissolution of the marriage in her Indian proceedings, as opposed to making claims in respect of property and child custody and maintenance.
The admissibility of the letter of the Indian lawyers is open to question. The authors were not single experts appointed in accordance with the rules of court. The opinions they expressed were not qualified as expert opinions by reference to their qualifications or expertise. Be that as it may, the letter was received into evidence, apparently without objection, and the primary judge had regard to it, at least to the extent that it made assertions that his Honour lacked jurisdiction to grant a divorce order and that Division 2 was a clearly inappropriate forum. He rejected this assertion and otherwise apparently gave the letter little weight.
We note here that the wife had filed two other affidavits prior to the hearing on 13 September 2021. One, filed 3 September 2021, was made in support of an application to adjourn the property adjustment proceedings in Division 2, explained more fully below. The other, filed 9 September 2021, was made in response to an affidavit of the husband. This affidavit contained the wife’s response to contentions made by the husband about the proceedings in India. Neither were relied upon by the wife to oppose the making of the divorce order.
The primary judge determined that the court’s jurisdiction was attracted by satisfaction of one of the nominated criteria in s 39(3) of the Act, and the ground of irretrievable breakdown and separation for a continuous period of twelve months was established for the purposes of s 48 of the Act.
Section 39(3) sets out the following:
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.
There was no dispute that both parties were domiciled in Australia, having lived and worked here since 2004. There was also no dispute that the wife is an Australian citizen (at [6]). The jurisdiction of Division 2 was clearly engaged.
Section 48 is directed to the exercise of discretion, in the following terms:
Divorce
(1) An 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.
There was no dispute the parties were married, that the marriage has broken down irretrievably, and the parties had separated and lived separately for at least twelve months prior to the filing of the divorce application.
There was no argument at hearing that s 48(3) was relevant in any way, nor that the grounds for divorce were not established.
The primary judge was satisfied that the grounds for the exercise of jurisdiction and a divorce order were clearly made out:
5. …Whatever might be the law in India, and I do not profess to have any knowledge about what the law in India might be, this Court clearly has jurisdiction under the Family Law Act 1975 (Cth) (the Act) because all of the necessary prerequisites for an exercise of jurisdiction are satisfied under section 39(3) of the Act…
The primary judge dealt with other matters, including the question of inappropriate forum, raised by the wife’s Response, as follows:
12. Dealing briefly with the other matters that are raised in the Response, reference was made to proceedings having been filed in [City D, India]. An application for an injunction is part of what is sought, apparently. It was asserted that the application for divorce today is frivolous, oppressive and vexatious, and that the issues and matters in question will be better and more completely dealt with in India. There is nothing to suggest any of those assertions are made out. In particular, the assertion that the court in [City D, India] is the more convenient court for dealing with a divorce under the Family Law Act 1975 (Cth) is obviously preposterous. Similarly, there is nothing to suggest that this court is an inappropriate forum for divorce proceedings.
THE APPEAL
There is a strong presumption in favour of the primary judgment, and we must be satisfied it is clearly wrong before there is any appellate interference: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627. As explained below, unlike many, if not most, judgments given in Division 2, the decision of the primary judge to grant a divorce order was not discretionary. On the other hand, his refusal to stay or dismiss the application for divorce on forum non conveniens grounds may be seen as a discretionary refusal to exercise a discretionary power: see below at [47]. In any event, this Court must undertake a real review of the primary judge’s decision: Fox v Percy (2003) 214 CLR 118 at [25]. But it should also be borne in mind, as Kiefel CJ and Keane J recently confirmed in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 399 ALR 535 at [67], that it is no part of the function of an appellate court to reformulate the case a party seeks to make.
The wife relied upon some 17 grounds of appeal in her Amended Notice of Appeal, many of which overlapped, and combined recognisable grounds of appeal with submissions or commentary. The recent comment of McClelland DCJ and Tree J in Maidment & Insley [2022] FedCFamC1A 48 at [2] is apt:
2.… the number of grounds, the blending of different challenges within a ground and the inclusion of commentary within the grounds had the effect of obscuring, rather than elucidating, the challenges made by the appellant.
We propose to address the grounds of appeal as follows, organised to promote clarity.
Grounds 10, 11, and 12 – This Court did not have jurisdiction to grant the divorce order
Grounds 10, 11, and 12 allege the primary judge erred in failing to consider the Indian courts alone have jurisdiction, that Australian courts inherently lack jurisdiction by reason of the application of relevant Indian laws and decisions of Indian courts, do not have jurisdiction conferred by domicile alone, and cannot arrogate jurisdiction to themselves. The grounds seem to confuse conferral of jurisdiction with its exercise.
As the primary judge recognised, once the facts were found establishing the court’s jurisdiction under s 39(3) of the Act, that is, domicile of both parties in Australia, and the wife’s status as an Australian citizen, the jurisdiction of Division 2 was not in doubt in proceedings for a divorce order. A court has a prima facie obligation to exercise its jurisdiction regularly invoked, and a party has a prima facie right to insist upon its exercise and to have their claim heard and determined: Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 241 (“Oceanic Sun Line”).
As the primary judge recognised, the terms of s 48(2) of the Act are unequivocal, providing that a divorce order “shall” be made if the statutory criteria are satisfied. It has long been settled that the court has no discretion to refuse the making of an order where the grounds are made out and s 48(3) does not apply: Falk and Falk (1977) FLC 90-247 at 76,337; RAF & MMF [2005] FamCA 497 at [50].
Once jurisdiction and the grounds for divorce were established, the primary judge had no discretion not to grant the divorce order unless he was persuaded to decline an exercise of jurisdiction, for example, by staying or dismissing the divorce application on inappropriate forum grounds, a question to which we will come shortly.
Grounds 10, 11, and 12 fail.
Grounds 1, 3, 4, 7, 8, 13, 14, and 16 – Division 2 was clearly an inappropriate forum
In a variety of ways, these grounds all ultimately contend that Division 2 was a clearly inappropriate forum, and accordingly the application for divorce before the primary judge should have been stayed or dismissed.
These grounds can be summarised as follows. Ground 1 asserts the primary judge erred by failing to find Division 2 as a clearly inappropriate forum. Grounds 3 and 4 contend that granting the divorce order will “adversely impact the reliefs and rights” of the wife and her son, while Ground 14 asserts it will jeopardise her child’s “Ancestral property rights” under Hindu law. We understand this to mean that the wife puts forward these contentions as separate reasons why Division 2 was a clearly inappropriate forum. In Ground 7, the wife alleges a failure by the primary judge to consider and apply the principles as set out in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”) and Henry v Henry (1996) 185 CLR 571 (“Henry”). Ground 8 alleges error by the primary judge in failing to find the divorce proceedings were an abuse of process, while Ground 16 alleges error by failing to find the divorce proceedings were frivolous, oppressive and vexatious. We understand this to be a variation of the inappropriate forum contention. Ground 13 contends that the relevant issues have been fully argued before the courts of India, and “judicial discipline and propriety” requires Australian courts to await orders of the courts of India, referring to a number of provisions from what we assume to be Indian legislation. The purport of the reference to “judicial discipline and propriety” is not clear, but we take it to mean no more than, by reason of the fact that Division 2 was a clearly inappropriate forum, the primary judge should have deferred to the Indian courts, for reasons of judicial comity.
We accept that, despite having jurisdiction, and despite being prima facie required to exercise that jurisdiction to grant a divorce order once the grounds of s 48 of the Act were made out, the primary judge possessed a power to stay or dismiss the divorce proceedings: Oceanic Sun Line at 242 (Deane J); Voth at 554 (Mason CJ, Deane, Dawson, and Gaudron JJ). The power to dismiss or stay proceedings on grounds of forum non conveniens is “an aspect of the inherent or implied power of a court which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice”: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391. As Oceanic Sun Line makes clear at 247–248, the power should be exercised with great caution and only in a clear case; it is discretionary:
… in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression.
See also Oceanic Sun Line at 244; approved in Voth at 564 and Wigmans v AMP Limited (2021) 388 ALR 272 at [96].
The principles applicable to the grant of a stay or dismissal of proceedings on the basis of forum non conveniens are well known and have been considered many times. The High Court in Voth expounded the following relevant propositions at 554:
First, a plaintiff who has regularly invoked the jurisdiction of a court has a prime facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction will provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised “with great care” or “extreme caution”.
It is clear that the wife, by her Response and through the content of the letter of advice, relied on the existence of her proceedings in India, filed earlier in time.
In Henry, there were parallel proceedings for divorce in Australia and the foreign forum. The majority at 589 also pointed out the prima facie right of a litigant to have a determination of proceedings regularly commenced in the local forum is not unqualified; if the local forum is clearly inappropriate, the notion of prima facie right may have no real bearing. It is true that in Henry, the majority said at 591 that the existence of simultaneous proceedings in different countries with respect to the same controversy is “highly relevant to the question whether the local proceedings are oppressive in the sense of ‘seriously or unfairly burdensome, prejudicial or damaging’, or, vexatious, in the sense of ‘productive of serious and unjustified trouble and harassment’”, a situation courts should strive, to the extent that Voth permits, to avoid. However, in Navarro & Jurado (2010) 44 Fam LR 310 (“Navarro”) at [264], Ryan J, agreeing with Finn J in Ferrier-Watson v McElrath (2000) FLC 93-022, pointed out there is nothing in Henry which would provide support for an automatic stay or dismissal of the local proceedings.
Despite some earlier suggestion that the local court should engage in some analysis of the foreign litigation (for example Henry at 592–593; Navarro at [64]), it now appears settled that the focus is on the inappropriateness of the local court. The focus is not upon the appropriateness or comparative appropriateness of the foreign forum, but on assessing whether there are enough factors indicating that the local forum is clearly inappropriate, in which case a stay should be granted: Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; Navarro at [166] citing Martin Davies et al, Ngyh’s Conflict of Laws in Australia (LexisNexis Butterworths, 8th edition, 2010) at [8.29] (repeated in the 10th edition). Australian courts should not concern themselves with an assessment of the comparative procedural or other claims of the foreign forum: Voth at 558; Henry at footnote 68; Navarro at [29]; Zhu & Xie [2021] FedCFamC1F 86 at [10]. As Deane J put it in Oceanic Sun Line at 242, “the clear inappropriateness of the local forum may justify dismissal or a stay. The mere fact that some foreign tribunal would represent a ‘more appropriate’ forum will not”.
There is no doubt that the wife bore the onus of establishing Division 2 as a clearly inappropriate forum: Navarro at [188].
In considering these grounds, it is necessary to set out some further aspects of the conduct of the proceedings before the primary judge.
First, it is important to emphasise the existence of the wider matrimonial proceedings in Division 2. The material in the Appeal Book did not include copies of the relevant Initiating Application or Response explaining those proceedings in any detail. But, it is clear from the transcript of the hearing on 13 September 2021 that there were, and presumably are, property adjustment proceedings between the parties in Division 2 under Part VIII of the Act. The primary judge heard and determined the contested divorce in the context of an application by the wife to adjourn those property adjustment proceedings pending an outcome in the Indian courts.
Secondly, at the hearing, both parties were represented, and the primary judge was told by the wife that the Indian proceedings were commenced to help settle the matrimonial pool for the purpose of the Australian proceedings, so as to reach a just and equitable outcome according to Australian legislation in the Australian court, that is, under Part VIII of the Act. In the course of submissions in support of an adjournment, the wife made clear in fact that the sole purpose of the proceedings in the Indian courts was to identify alleged property of the husband in India, including what were called “Ancestral rights” (Transcript 13 September 2021, p.3 lines 1–38 and p.4 lines 14–37). For example, counsel for the wife made clear that “her relief in India, if she obtains it, will simply be the extent that the husband has this or that value property” (Transcript 13 September 2021, p.3 lines 37–38), and further:
[COUNSEL FOR THE WIFE]: She’s telling your Honour that if she’s successful in those proceedings, those proceedings will only simply establish and verify and document the husband’s interest in those properties. But that’s important from our point of view in terms of exercising the jurisdiction…here to make, ultimately, a just and equitable order…
(Transcript 13 September 2021, p.4 lines 16–20)
[COUNSEL FOR THE WIFE]: …it may be possible that the Indian property is property…as defined for Family Law Act purposes and therefore it’s property that’s in the pool for distribution…
(Transcript 13 September 2021, p.4 lines 34–36)
Against that background, counsel for the wife later made brief submissions in opposition to the application for divorce as follows:
[COUNSEL FOR THE WIFE]: Yes. My position on the divorce is this, and no more than this: my client has filed a response, the response is filed – I have a stamped copy. It doesn’t have an imprint value to date, 22 June 2020. And my copy is stamped by the Federal Circuit Court, but it doesn’t bear an imprint of the date it was filed. Yes. Filed 23 June 2020, response to divorce. My client’s position is this: before the application for the divorce was filed, she had commenced proceedings in the Family Court in India. One of the issues in those Family Court proceedings was an issue in relation to the marriage. She was seeking injunctions restraining the [husband] from initiating divorce proceedings. Those proceedings will occur on 9 March – the Indian proceedings – 9 March 2020, prior to the husband commencing this application.
HIS HONOUR: I’ve read the response. None of it looks relevant, except for the – at its best – because it’s not discretionary except the assertion that India is the better venue. But that’s a curious suggestion to make, because an Indian court couldn’t give a divorce under Australian law. So that proposition appears to be misconceived.
[COUNSEL FOR THE WIFE]: Yes. And that is all I can say to your Honour. I’m not going to say anything more in opposition.
(Transcript 13 September 2021, p.21 lines 14–32)
After hearing from the husband’s counsel, the primary judge invited further submissions from counsel for the wife, who set out the reasons demonstrating that s 39 and s 48 of the Act were satisfied. The primary judge then asked counsel for the wife if he wished to say anything further. The response was “Nothing on the facts that have been said to your Honour. No.” (Transcript 13 September 2021, p.25 line 5).
The High Court of Australia has made clear in Metwally v University of Wollongong (1985) 60 ALR 68 at 71 that:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
It can be seen that, despite the grounds relating to forum non conveniens apparently raised by the Response, identified by the primary judge, and canvassed in the letter of advice, the wife made almost no reference to any evidence relevant to any of those grounds in resisting a divorce order. The wife’s submissions only went so far as to highlight the existence of the Indian proceedings and the fact they were commenced shortly before the proceedings in the Australian court. The difference in timing was a matter of two days. This is not significant. There was no evidence that the relief she claimed in the Indian courts was contingent upon her opposing the application for divorce in Division 2. No submission was made to that effect to the primary judge. There was no evidence of any injunction having been granted by an Indian court placed before the primary judge, or this court for that matter. The wife’s submissions referred only to an application for injunction. No clear submission was made expressly contesting the Court’s jurisdiction. No reference was made to Voth or other Australian authority. No clear application was made seeking a stay or dismissal of proceedings in Division 2 because it was said to be a clearly inappropriate forum.
More importantly, it is significant that the evidence did not demonstrate the wife had asked for a divorce under Indian law. Indeed, her submissions to the primary judge that the sole purpose of the Indian proceedings was to identify property interests of the husband in India, was inconsistent with any application for divorce under Indian law. In Navarro, Ryan J (at [262]) accepted that if alteration of the parties’ marital status in the local forum would not be recognised in the foreign forum, so that they would be divorced in Australia but remain married in the foreign forum, this could constitute a serious mischief and create vexation which should be cured by a stay. But in Navarro, it was clear that the proceedings in the foreign forum would comprehensively deal with divorce, property and parenting issues, while in Australia no comprehensive proceedings were on foot. Here the position is almost reversed, and the Indian proceedings have the limited role in relation to property interests identified by the wife to the primary judge.
It is also true that the letter of advice suggested that the Australian divorce order would not be recognised in the Indian courts, apparently because there exists no treaty or convention between India and Australia about mutual recognition. Again the evidence for this assertion was limited to its presence in the letter of advice and no argument was put to the primary judge about this issue. But if it be assumed this is correct, it would hardly favour a conclusion that Division 2 was clearly an inappropriate forum, for the simple reason that it appears the parties would need to apply for orders dissolving the marriage in both Australia and India anyway. However, in light of the limited weight to be afforded to the letter of advice, and absence of any other evidence about mutual recognition of judgments between Australian and India, we are not satisfied the primary judge erred in placing no weight on a suggestion of an absence of mutual recognition.
We are satisfied the primary judge considered and rejected the contention that the Australian forum was clearly inappropriate and that the husband’s divorce application should be dismissed as vexatious.
There was indeed ample reason for the primary judge to reach that view. The parties had lived in Australia for many years, the wife was an Australian citizen and the husband a permanent resident, they both had employment in Australia, and the former matrimonial home was located in Australia. The divorce application had been regularly commenced by the husband in Division 2. There were other proceedings for property adjustment in Division 2, and the only purpose of the Indian proceedings was said to be identification of Indian property interests of husband for the purposes of the proceedings in the Australian court. As already noted, under Australian law the existence of proceedings in India did not of itself require the stay or dismissal of the husband’s divorce application, and there was no evidence that an Indian court had granted an anti-suit injunction restraining the husband’s proceedings in Australia.
The other arguments of the wife should be rejected. She argued under Ground 3 that the husband commenced property proceedings in Australia and has “not disclos[ed] his properties and his business Interest in the Matrimonial and Ancestral property from India” (Wife’s Summary of Argument filed 19 April 2022, p.2). She further suggests that the husband has sought orders in Australia as a means to jeopardise her and her child’s ancestral property rights in India. She echoes the same point as part of Ground 9, saying that the husband and his relatives are “taking advantage of the Australian laws and engaging in Matrimonial related offences and Ancestral property frauds by illegal deed transfer of the properties in India” (Wife’s Summary of Argument filed 19 April 2022, p.5). Furthermore, she submits that the granting of the divorce order will adversely impact upon her and her child’s entitlements to property under Hindu law. No particulars are given in support of this repeated assertion. None of these contentions were made to the primary judge, or were the subject of evidence placed before him.
In support of Grounds 8 and 16, the wife cites an alleged failure to consider international laws and Indian marriage laws, which was supposedly a clear abuse of process and power. She further argues that the existence of the proceedings in the Indian courts renders the husband’s divorce application in Australia as against natural justice. According to her, a judge of the High Court of City D, has recommended for the “mediation and amicable settlement of the Matrimonial and custody and Property disputes” (Wife’s Summary of Argument filed 19 April 2022, p.9). She cites ongoing criminal proceedings in the High Court of State T against the husband and his relatives. Her Summary of Argument makes reference to the concept of “comity of courts” recognised by the Supreme Court of India and argues that “it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing” (Wife’s Summary of Argument filed 19 April 2022, p.7). None of these matters were put to the primary judge, none are supported by the material before us, and none go any distance to establishing error in the grant of the divorce order.
Accordingly, a conclusion that Division 2 was not a clearly inappropriate forum was plainly open to the primary judge on the evidence before him and in light of the parties’ submissions.
The primary judge can hardly be criticised for not taking account of submissions or evidence which were not put to him, and the wife is bound by the case she made.
Accordingly, Grounds 1, 3, 4, 7, 8, 13, 14, and 16 fail.
Ground 2 – The primary judge erred in failing to find that the divorce application was not properly served on the wife
The wife did not make any written or oral submissions in respect of this ground. The transcript indicates that the wife was, in fact, served with the requisite documents. In any event, no point was taken before the primary judge about lack of service. As already noted, the wife nevertheless filed a response:
[COUNSEL FOR THE HUSBAND]: I think what does need to demonstrate is that the wife was served with the document, and there is an affidavit of that service, that’s 12 May 2020. Sorry, I think there is an affidavit of service upon the wife - - -
HIS HONOUR: Don’t know that - - -
[COUNSEL FOR THE HUSBAND]: - - - that I don’t seem to have in my - - -
HIS HONOUR: Don’t know that it matters.
[COUNSEL FOR THE HUSBAND]: - - - in my file, but there was because I remember the call reading - - -
[COUNSEL FOR THE WIFE]: We filed a response, your Honour.
HIS HONOUR: Exactly.
(Transcript 13 September 2021, p.23 lines 33–47)
Counsel for the wife accepted the response was unconditional:
HIS HONOUR: Well, [counsel for the wife] points out that it doesn’t matter because the responses weren’t filed. Think he’s correct. Let’s have a look at the response. Rather than – [counsel for the wife], I see your client asserts that she hasn’t been served, the response is not conditional, you agree?
[COUNSEL FOR THE WIFE]: Yes, I do agree, your Honour.
(Transcript 13 September 2021, p.24 lines 7–12)
This ground has no merit.
Grounds 5, 6, and 9 – The primary judge erred in failing to take into account injunctions granted by the Family Court in City D and by allowing the husband to violate Indian court orders
These grounds rely upon the assertion that the husband is presently the subject of an injunction made by the Family Court in City D on 28 July 2021, which restrains the husband from applying for a divorce order in any jurisdiction in India, and also from entering into a de facto relationship or marriage until a decree of divorce is granted by an Indian court. Ground 9 alleges the primary judge erred in allowing the husband to “violate” Indian court orders.
If an injunction was granted in an Indian court binding the husband, judicial comity may require the existence of the injunction to be taken in to account and given weight and respect: Talwar & Sarai [2018] FLC 93-855 at [62]. However, there was no evidence of the form, nor content of these purported injunctions. If granted on 28 July 2021, evidence of their existence could have been placed before the primary judge, but none was. Furthermore, no reference was made to evidence of, or reliance placed upon, these injunctions before the primary judge.
Accordingly, these grounds fail.
Ground 15 – The primary judge erred in failing to consider the implications of the COVID-19 pandemic, which delayed court proceedings in India and rendered the parties unable to travel
This ground is difficult to understand. The wife submitted that restrictions on travel by reason of the COVID-19 pandemic rendered the parties unable to proceed with their dispute in India, thus delaying those proceedings. This may be so. But, again, this was not put to the primary judge, and anyway, the argument is beside the point, unless the wife intended to suggest that the divorce hearing should have awaited an outcome in India. If that is what the wife contends, for reasons already given, we reject the argument. In the absence of a finding that Division 2 was a clearly inappropriate forum, delay in the Indian proceedings, for whatever reason, was irrelevant.
Ground 15 fails.
Ground 17 – “[S]uch other or further grounds as may be relied upon receipt of the judgment”
This ground is incomprehensible and thus fails.
APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE
By way of her Application in an Appeal filed on 19 April 2022, the wife seeks the following orders:
1.The [wife] be granted to adduce further evidence together with the Affidavit, summary of Arguments and list of Authorities.
2. The [wife’s] Indian Matrimonial Court Proceedings and the Mediation process by considered and to set the Divorce Orders.
It appears the wife seeks leave to rely in her appeal upon an affidavit filed on 19 April 2022. In this affidavit, she outlines her ongoing proceedings with the husband in the Family Court in City D, and court events in January, February, and March 2022. She also outlines ongoing criminal proceedings involving the husband in the courts of State T, wherein the husband has been charged with travelling with a tampered passport.
Pursuant to s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), this Court may receive additional evidence on appeal. However, the circumstances in which it should do so are considerably constrained. In CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ said at 202–203, in relation to the precursor to s 35 (the repealed s 93A of the Act):
111. …it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
As outlined above, the orders of the appeal registrar of 14 December 2021 required the wife to file any Application in an Appeal to adduce further evidence, prior to 11 March 2022. Despite the extension of time until 15 April 2022, the wife did not file her application and affidavit until 19 April 2022, four days following the deadline. The wife’s failure to comply with previous directions of the court is one reason to refuse her application.
There are several other reasons. All the matters raised in the fresh affidavit appear to have arisen since the decision of the primary judge, that is, after 13 September 2022. During the hearing, she made no submissions in support of her application and why she should be granted leave to rely on new evidence. She did not explain how the proposed evidence did or could bear upon any of her grounds of appeal. We cannot be satisfied the proposed evidence could possibly have led to a different result before the primary judge. Although the oral submissions of the husband were also somewhat unclear, he indicated he opposed this court receiving any further evidence, and we infer the proposed evidence was not undisputed.
For those reasons, the wife’s Application in an Appeal seeking to adduce further evidence, filed on 19 April 2022, will be dismissed.
CONCLUSION
The wife has failed on all grounds of appeal. The appeal will be dismissed.
As both parties were self-represented and neither filed a schedule of costs, nor were any submissions made in this regard, there will be no order as to costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Harper & Riethmuller. Associate:
Dated: 17 June 2022
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