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…
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- AGLC
- Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90
- Case
- [2022] FedCFamC1A 90
- Decision Date
CaseChat Overview and Summary
This appeal concerns the refusal of the primary judge to grant the appellant's application for leave to file and rely upon an affidavit filed on 18 April 2022 in her appeal against the grant of a divorce order. The respondent did not oppose the application, however he made submissions that the appeal was unmeritorious and should be dismissed. The appeal was heard on 3 May 2022 and the appeal documents were filed late on 19 April 2022. The primary issue for the court was whether it was in the interests of justice to permit the appellant to file and rely upon an affidavit dated 18 April 2022 in her appeal against the grant of a divorce order. The court found that the application should be refused.
The court noted that the circumstances in which it should admit further evidence on appeal were considerably constrained. The court referred to CDJ v VAJ (1998) 197 CLR 172, where 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. The court concluded that the appellant's affidavit did not disclose a case where it was in the interests of justice to permit the filing and reliance upon the affidavit. The court noted that the affidavit was filed late, and contained evidence that was largely cumulative and did not have the potential to produce a different result. The court also noted that the appeal was unmeritorious and should be dismissed.
The court dismissed the appellant's application for leave to file and rely upon an affidavit dated 18 April 2022 in her appeal against the grant of a divorce order. The court also dismissed the appeal. The court made no orders as to costs as both parties were self-represented.
The court noted that the circumstances in which it should admit further evidence on appeal were considerably constrained. The court referred to CDJ v VAJ (1998) 197 CLR 172, where 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. The court concluded that the appellant's affidavit did not disclose a case where it was in the interests of justice to permit the filing and reliance upon the affidavit. The court noted that the affidavit was filed late, and contained evidence that was largely cumulative and did not have the potential to produce a different result. The court also noted that the appeal was unmeritorious and should be dismissed.
The court dismissed the appellant's application for leave to file and rely upon an affidavit dated 18 April 2022 in her appeal against the grant of a divorce order. The court also dismissed the appeal. The court made no orders as to costs as both parties were self-represented.
Orders
Orders of the court
NAA 38 of 2021
ADC 1032 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
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).
Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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