Basu & Misra
[2025] FedCFamC1A 35
•7 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Basu & Misra [2025] FedCFamC1A 35
Appeal from: Misra & Basu [2024] FedCFamC2F 1231 Appeal number: NAA 257 of 2024 File number: DGC 927 of 2023 Judgment of: MCCLELLAND DCJ Date of judgment: 7 March 2025 Catchwords: FAMILY LAW – APPEAL – Appeal from divorce order – Where the appellant argues that Australia is a clearly inappropriate forum – No error of fact or law established – Appeal dismissed – Order made for the wife to pay the husband’s costs of the appeal on a party/party basis. Legislation: Family Law Act 1975 (Cth) ss 39, 48, 117
Marriage Act 1961 (Cth) s 88D
Hindu Marriage Act 1955 s 9
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bakshi v Mahanta (No 2) (2022) 367 FLR 177; [2022] FedCFamC1A 90
Bhakta & Konda [2021] FCCA 1751
Diamond & Diamond [2024] FedCFamC1A 201
Falk and Falk (1977) FLC 90-233; [1977] FamCA 46
RAF & MMF [2005] FamCA 497
Henry v Henry (1996) 185 CLR 571; [1996] HCA 51
HJ Heinz Co Australia Ltd v Turner [1998] 4 VR 872
House v the King (1936) 55 CLR 499; [1936] HCA 40
Jacombe v Jacombe (1961) 105 CLR 355; [1961] HCA 25
Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322
Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Pathak & Hardikar (2022) FLC 94-111; [2022] FedCFamC1A 163
Resolution Life Australasia Ltd v AMP Ltd; Munich Reinsurance Co of Australasia Ltd v AMP Ltd [2025] NSWCA 21
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
State of Victoria v Bacon [1998] 4 VR 269
Talwar & Sarai (2018) FLC 93-855; [2018] FamCAFC 152
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55
Number of paragraphs: 74 Date of hearing: 7 February 2025 Place: Dandenong (via videolink) Appellant: Litigant in person Counsel for the Respondent: Mr Gray Solicitor for the Respondent: Parminder Sandhu Solicitors ORDERS
NAA 257 of 2024
DGC 927 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BASU
Appellant
AND: MR MISRA
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant wife pay the respondent husband’s costs of the appeal on a party/party basis in the fixed sum of $6,743 by no later than 8 September 2025.
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 the pseudonym Basu & Misra has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
On 21 March 2023, the respondent husband, Mr Misra (“the husband”) filed an application for divorce from the appellant wife, Ms Basu (“the wife”). The wife contested the divorce application and, following a final hearing before a judge of the Federal Circuit and Family Court of Australia (Division 2), a divorce order was made with such order to take effect to terminate the marriage by 7 October 2024.
By Notice of Appeal filed on 4 October 2024, the wife seeks to challenge the divorce order made by the trial judge.
Should the appeal be successful, the wife seeks that the primary judge’s orders be set aside, and the husband’s divorce application be dismissed. The husband opposes the appeal and seeks an order for the wife to bear the costs of the appeal.
For reasons that follow, I am satisfied that the appeal should be dismissed and that the wife should pay the husband’s costs on a party/party basis.
BACKGROUND
The husband was born in 1992 in Region E, Country B and is 32 years of age. The wife was born in 1995 in Country B and is 29 years of age.
The wife migrated to Australia in 2004 and has lived in Australia since that date. The husband contends that he migrated to Australia in approximately 2016 and has been domiciled in Australia since that date. The parties are both Australian citizens.
The parties were married in 2017 in accordance with Hindu rites and rituals. The wife is mixed faith, practising another faith and Hinduism and she contends that the husband and his family were aware of this prior to their marriage (Notice of Appeal filed by the wife on 4 October 2024, p.3). There is one child of the relationship, X, born in 2020, who is an Australian citizen. The child currently lives with the wife.
After the parties’ marriage they commenced living together in the wife’s parent’s home in Suburb C, New South Wales. In 2019, the parties moved into their own accommodation. The father gained his Australian permanent residency in 2020 and later his Australian citizenship.
The husband contends that he left the family home in late 2021 to visit his family in Country B. In late 2021, the parties jointly purchased a property located in Suburb C, New South Wales. Upon the husband’s return from Country B, the husband contends that he told the wife he intended to live in Melbourne and the wife chose to remain living in Sydney.
The parties agree that separation occurred 12 months prior to the husband filing an Application for Divorce,[1] and that they have been separated since October 2021.[2] The wife contends that there have been reconciliation efforts since separation. The husband disputes that any meaningful attempts or actual periods of reconciliation occurred.
[1] Transcript 12 August 2024, p.11 lines 13–16.
[2] Transcript 12 August 2024, p.14 lines 19–21; p.38 lines 15–16.
The husband contends that in February 2022 he commenced paying child support for the parties’ child. He also contends that upon him moving to Melbourne, he informed the wife that he was unable to maintain his own living expenses and mortgage repayments simultaneously. The parties agreed for the husband to transfer the property into the wife’s name. As at the date of the final hearing, the wife continued to live in that property with the parties’ child (at [14]).
Both parties allege that they have been subjected to abusive behaviour by the other party’s relatives throughout the marriage and in the post-separation period. The appeal does not turn on those allegations and, as such, they will not be detailed in these written reasons.
On 21 March 2023, the husband filed an application for divorce (“the Australian Application”). The wife filed her Response contesting the Australian Application on 30 June 2023.
On 5 June 2023, the wife commenced proceedings in the Family Court in Region E, Country B (“the [Country B] Court”). The wife sought an order for restitution of conjugal rights pursuant to s 9 of the Hindu Marriage Act 1955 (Country B) (“Hindu Marriage Act”) (“the substantive [Country B] Application”). The wife states in the substantive Country B Application: “It is therefore humbly prayed that this Hon’ble [sic] court may be pleased to pass a decree of restitution of conjugal rights in favour of the [wife] and direct the [husband] to join with the [wife] to lead [a] conjugal life” (Wife’s Response to Divorce Application filed on 30 June 2023, Annexure “A”).
On 5 October 2023, the wife filed a further anti-suit injunction in the Country B Court, attempting to restrain the husband from continuing with the Australian Application. On 20 October 2023, the Country B Court dismissed the wife’s anti-suit injunction with reasons. The presiding judicial officer stated at [8] of those reasons:
Having regard to the facts of the case, this Court finds that the [wife] is not entitled for seeking Anti suit injunction against the [husband] since she has prior knowledge about filing of the divorce [application] in the Australian Court and moreover, she and the [husband] are resident of Australia and domiciled there.
(As per the original)
The Australian Application could not be reached on 26 April 2024 and was adjourned to 12 August 2024. The primary judge made orders giving both parties permission to rely only on the material filed in preparation for the hearing on 16 April 2024, with an affidavit detailing what had occurred in the proceedings in the Country B Court.
The final hearing of the matter took place on 12 August 2024. The husband was represented, and the wife was unrepresented. The primary judge gave the wife the opportunity to speak with a duty lawyer in the morning and the hearing commenced in the afternoon. The wife’s substantive Country B Application was undetermined at this time.
On 6 September 2024, the primary judge delivered judgment and made the following orders:
1. A divorce order be made, such order to take effect and thereby terminate the marriage on 7 October 2024.
2. All extant applications be otherwise dismissed.
On 11 September 2024, the Country B Court published their orders and reasons for judgment in relation to an additional procedural application filed by the wife and to the substantive Country B Application. The Country B Court dismissed both applications. The contents and relevance of those judgments will be discussed subsequently in these written reasons.
The wife filed her Notice of Appeal to the primary judge’s decision on 4 October 2024. The appeal hearing took place on 7 February 2025 by video link. The wife was unrepresented. The husband was represented by counsel.
APPLICATIONS IN AN APPEAL
The wife filed two Applications in an Appeal on 22 January 2025, which were heard and determined on the same day of the appeal. One Application in an Appeal sought leave to adduce further evidence. The other Application in an Appeal sought leave to expand upon her Summary of Argument, filed on 10 January 2025. For reasons that I gave during the appeal, I acceded to both applications.
Application to Adduce Further Evidence
The wife seeks to adduce further evidence not available to the primary judge during the final hearing, being the orders and reasons from the Country B Court, which were published on 11 September 2024. The wife sought to adduce two separate reasons for judgment from the Country B Court, including:
(a)The substantive Country B Application seeking to restore conjugal rights; and
(b)A further procedural application of the wife seeking to amend her initial application in the Country B Court.
The following is a brief summary of those judgments to the extent that they are relevant to the issues being considered in this appeal.
The judgment and orders for the substantive Country B Application dismiss the wife’s application for restitution of conjugal rights as the marriage was registered under the Hindu Marriage Act and the wife practices another faith. At [13] of the judgment it is noted:
…There is no concept like ‘Secular Hinduism’ or ‘Orthodox Hindu’ in the Hindu Marriage Act, 1956 [sic] and unless both the spouses were followers of Hinduism at the time of or after the marriage, they cannot be termed as Hindus, and any marriage performed between a Hindu and a non Hindu, though performed as per Hindu marriage rites, customs and rituals, is not valid in the eye of law. Therefore, the contention of [the wife] herein that she and her family are ‘secular Hindus’ and that they respect Hindu and [another faith] equally and hence, she can maintain the [application] under the Hindu Marriage Act cannot be accepted, for the reason that she did not deny professing [the other faith] before, at the time of and after the marriage…[3]
[3] Wife’s affidavit affirmed on 21 January 2025, Annexure “A” p.17.
This judgment also states that the wife’s substantive Country B Application is dismissed because the court did not have jurisdiction to determine the proceedings. At [14] of the judgment, it is noted that despite filing a rental agreement as evidence that she resides in Country B, the wife acknowledged that she and her family are domiciled in and are citizens of Australia.
The second judgment dismisses the wife’s request for amendment of her pleadings in the substantive Country B Application. The Country B Court dismissed the application stating, at [8], that by “having regard to the proposed amendment sought by [the wife]…this Court finds such amendment, if permitted, would lead to introduction of a new case by [the wife], by abandoning her case as originally filed before the Court” and that this would cause irretrievable prejudice to the husband.[4]
[4] Wife’s affidavit affirmed on 21 January 2025, Annexure “A”, p.26.
The wife asserts that the abovementioned judgments from the Country B Court, which were not available to the primary judge at the final hearing, must be taken into account and that they are “essential for the proper adjudication of this appeal”.[5]
[5] Wife’s affidavit affirmed on 21 January 2025, paragraph 4.
The husband contends that the application to adduce new evidence was not before the primary judge in these proceedings at first instance and therefore should be dismissed.[6] However, at the appeal, counsel for the husband acknowledged that due to the wife being self-represented in the proceedings there was some benefit in departing from what would be the ordinary course and allowing the wife to adduce these judgments.[7]
[6] Summary of Argument of the husband filed 30 January 2025, paragraph 19.
[7] Appeal Transcript 7 February 2025, p.3 lines 16–20.
I granted the wife leave to rely upon the additional evidence in circumstances where the evidence was not available at the time of the final hearing, and it is potentially relevant should this Court re-exercise discretion. The evidence is, however, prejudicial to the wife’s case rather than supportive. This is because it confirms that the Country B Court clearly recognises that, in circumstances where both parties live in Australia, the Australian courts are the appropriate forum in which to resolve the dispute between the parties relating to their marriage.[8]
[8] Appeal Transcript 7 February 2025, p.4 lines 39–45.
In circumstances where the Country B Court dismissed the wife’s substantive application before them, the obiter statement by the Country B Court that the parties’ marriage was invalid under the Hindu Marriage Act due to the wife practising another faith, begs the question as to the status of the parties’ marriage under any other law of Country B.
Application to Extend the Length of the Wife’s Summary of Argument
The wife also filed an Application in an Appeal to expand her Summary of Argument filed on 10 January 2025. Again, I granted the wife leave for reasons that I provided during the appeal, and which primarily related to the interests of judicial economy to the extent that time spent debating the issue was likely to be disproportionate to the issues to be determined in the substantive appeal.[9]
[9] Appeal Transcript 7 February 2025, p.3 lines 13–14.
The material the wife seeks to include in her Summary of Argument are further submissions as to why the primary judge erred in not recognising that the Country B Court is the appropriate forum to determine legal matters surrounding the parties’ marriage, citing the judgment in the substantive Country B Application, which she sought to adduce into evidence in the previously discussed Application in an Appeal. The wife also contended that the husband was untruthful during cross-examination, when he denied participating in a group call with the wife’s relatives to discuss reconciling with the wife. A screenshot of what the wife purports to be a call history showing a record of this group call is annexed to the further material she seeks to rely on.
In permitting the wife to rely on the supplementary submissions, I indicated that I give no weight to the screenshot of a group call involving the wife and the husband, as the husband was not given the opportunity to comment on the document during cross-examination.[10] Further, the document itself has no evidentiary value because it contains no record of the discussion and does not adversely reflect on the husband’s denial that such a call as described by the mother occurred during cross-examination. Nor does the screenshot indicate error on the part of the primary judge in finding the husband had no interest in reconciling with the wife.
[10] Appeal Transcript 7 February 2025, p.3 lines 1–9.
GROUNDS OF APPEAL
The sole Ground of Appeal is:
1.This appeal is preferred having been aggrieved by the decision of the family circuit court at Dandenong wherein the court has passed divorce order without considering the facts DGC927/2023, circumstances of the case and the applicable provisions of law. Where the appropriate action before the judge could have been either to dismiss the case or to grant stay of proceedings.
(As per the original)
The remaining 14 paragraphs are described as “[b]ackground of the case and issues involved” and “[l]egal paradigm”. They provide further facts the wife deems relevant and her submissions on those facts.
THE LAW
The test to be applied when a party to proceedings seeks a stay of an application for dissolution of marriage under Australian law is whether Australia is a “clearly inappropriate forum”.[11]
[11] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”); Henry v Henry (1996) 185 CLR 571 (“Henry”).
In considering that issue, the primary judge was exercising discretionary judgment: Bakshi v Mahanta (No 2) (2022) 367 FLR 177 (“Bakshi”) at [37]. This required the appellant to identify an error of principle, or a material error of fact, or, if no specific error can be identified, demonstration that the decision is “unreasonable or plainly unjust”: House v the King (1936) 55 CLR 499 (“House v The King”) at 505. The Ground of Appeal does not identify any such error.
The decision of the primary judge to grant a divorce order was, on the other hand, not discretionary (Bakshi at [37]). As recently noted by the New South Wales Court of Appeal in Resolution Life Australasia Ltd v AMP Ltd; Munich Reinsurance Co of Australasia Ltd v AMP Ltd [2025] NSWCA 21 at [44]:
The standard of appellate review directs attention to the nature of the decision the subject of the appeal. In Pafburn, Basten AJA observed that in accordance with the reasoning of the High Court in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857, the constrained standard in House v The King only applies where there is a range of answers which can be provided, rather than a binary outcome, as to which the “correctness” standard applies. And, even where there is a binary choice and the binary choice involves an evaluative judgment, the correctness standard applies: GLJ at [16] (Kiefel CJ, Gageler and Jagot JJ).
For reasons which follow, applying the correctness standard of review, I am satisfied that there was no error on the part of the primary judge.
As correctly recognised by the primary judge at [58], the court’s jurisdiction is found in s 39(3) of the Family Law Act 1975 (Cth) (“the Act”) as follows:
(3)Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order if 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 of the Act provides for the requirements for a divorce as follows:
48 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.
Once satisfied that the marriage had broken down irretrievably, in terms of ss 48(1) and (2), and that there was no reasonable likelihood of cohabitation being resumed, pursuant to s 48(3), the primary judge was obliged to exercise jurisdiction. The primary judge was correct in stating, at [59], that the Court had no discretion to refuse the making of an order for divorce where the grounds are met: RAF & MMF [2005] FamCA 497 at [50], quoting Falk and Falk (1977) FLC 90-233.
An appellant must properly particularise the asserted error which they contend was made by the primary judge.[12] The Ground of Appeal does not particularise any error on the part of the primary judge in finding that the marriage had broken down irretrievably and that there was no likelihood of cohabitation being resumed. Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43] states that in order to establish an error of fact, it is necessary for the appellant to establish that the impugned finding of fact was:
(1)demonstrably wrong by incontrovertible facts or uncontested testimony; or
(2)glaringly improbable; or
(3)contrary to compelling inferences.
[12] State of Victoria v Bacon [1998] 4 VR 269 at 285 (Phillips JA); HJ Heinz Co Australia Ltd v Turner [1998] 4 VR 872 at 875–876; Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540 at [16]–[17].
THE APPELLANT’S SUMMARY OF ARGUMENT
As has been noted on many occasions by this Court, an appellate court cannot be expected to “rummage around” in the broadly expressed contentions and arguments that are set out in an appellant’s summary of argument with a view to distilling a specific and concise ground or grounds of appeal: Newett & Newett (No 2) (2021) FLC 94-051 at [34], quoting Bahonko v Sterjov (2008) 166 FCR 415 at [3].
I do not therefore attempt to re-write the wife’s ground of appeal in light of the matters she has raised in her expanded Summary of Argument. Nevertheless, for completeness, I address each of the issues raised by the wife only for the purpose of explaining that the trial judge delivered a sound and well-reasoned judgment, which addressed all relevant issues that were necessary to decide this matter.
In her Summary of Argument filed on 10 January 2025, expanded upon in her supplementary material, the wife contended the following:
(1)Australia was an inappropriate forum and in that respect:
(a)The primary judge failed to adequately consider that the standards for divorce are higher under Country B law.
(b)The primary judge failed to adequately consider the emphasis Country B law places on reconciliation.
(c)The primary judge failed to adequately consider that the Country B Courts were empowered to provide complete relief.
(d)The marriage is invalid under Country B law and therefore Australia is without jurisdiction.
(e)The criteria for divorce under s 48 of the Act was not met.
(f)The judgment is a violation of international law.
I will address each of those contentions.
Forum Non Conveniens
The principle of forum non conveniens provides that a court should dismiss an application in favour of a different forum for the matter to be dealt with.
The applicable test, as previously stated in these reasons, is whether the court is a “clearly inappropriate forum”. Applying that test, the primary judge was then required to assess whether continuing proceedings in Australia would be “oppressive, vexatious or an abuse of process” to the wife: Voth at 554; see also Henry at 573 and 587.
The Full Court in Bakshi at [51] clarified that the focus is not on the local forum’s appropriateness nor a comparative analysis of foreign forums but instead on “assessing whether there are enough factors indicating that the local forum is clearly inappropriate”. The primary judge correctly noted this at [62] of her judgment. In Diamond & Diamond [2024] FedCFamC1A 201 the Full Court stated at [36]:
So too the anterior question of whether Australia was a clearly inappropriate forum to entertain and decide the divorce application was evaluative, not discretionary, in nature because the question admits of only one correct answer: Australia either is or is not a clearly inappropriate forum. That point has been made by the Full Court before (Talwar & Sarai (2018) FLC 93-855 at [19] and [27]). While the answer to the question is influenced by numerous different considerations which are peculiar to the case at hand (Bakshi v Mahanta (No 2) at [37]–[47]), the decision is not truly discretionary because the law does not tolerate multiple correct answers, which is the hallmark of a discretionary decision (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [16] and [26]; Norbis v Norbis (1986) 161 CLR 513 at 518). The litigant who contends Australia is a clearly inappropriate forum bears the burden of proving it (Henry v Henry (1996) 185 CLR 571 at 579, 580 and 589; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 556, 564, 586 and 587) and if the burden is not discharged then the Australian proceedings are competent.
(Emphasis in original)
In determining the question, among the multiplicity of considerations referred to by the Full Court, factors to consider include convenience, expense, connection of the parties to the jurisdiction and the ability of parties to participate equally: Henry at 592–593.
The primary judge properly considered each of the wife’s contentions. In that respect, the primary judge noted that the court has jurisdiction as all the factors set out in s 39(3) of the Act are satisfied. The parties were Australian citizens, domiciled and ordinarily resident in Australia at the time of filing, satisfying s 39(3)(a)–(c) of the Act (at [69]). Moreover, the primary judge assessed that grounds for divorce under s 48 of the Act were met as the parties had lived separately for over 12 months, the marriage had irretrievably broken down and there was not a reasonable likelihood of resuming cohabitation (at [71]–[80]).
The primary judge noted that although the Australian and Country B proceedings relate to the same controversy, the relief sought by the wife, a restitution of conjugal rights, and the husband, a divorce order, are substantially different. There is no parity in the relief sought. The primary judge noted that a restitution of conjugal rights has not been available in Australia since the commencement of the Act and that she had no evidence before her to satisfy her that the Country B Court would comprehensively deal with divorce, property and parenting issues or recognise a divorce order from the Court (at [65]–[68]). Secondly, the primary judge noted that the wife was unable to afford legal representation in either sets of proceedings (at [31(c)]). This financial constraint made it more practical to consolidate the legal matters in one jurisdiction, which, in this case was Australia, where the Federal Circuit and Family Court of Australia (Division 2) had jurisdiction to determine all issues in dispute consequent upon the breakdown of the parties’ relationship.
That fact was acknowledged by the Country B Court in their decision to dismiss the wife’s application for an anti-suit injunction, which similarly determined that Australia was the more convenient jurisdiction.
These were all relevant considerations that the primary judge properly considered and the appellant has failed to establish any appellable error in respect to the exercise of discretion by the primary judge in terms of the principles set out in House v the King.
Invalid Marriage
Somewhat paradoxically, in contrast to the relief that the appellant was seeking in the Country B Court, the wife contends that the marriage is invalid under Country B law, and therefore, the Federal Circuit and Family Court of Australia (Division 2) lacked jurisdiction to proceed with the divorce proceedings (Wife’s affidavit filed 13 April 2024, paragraph 3).
The primary judge correctly recognised that there is a presumption of a valid marriage when a marriage ceremony has been duly performed and followed by the parties living together for substantial periods of time (at [50]). The judge noted that clear and cogent evidence is required to rebut this presumption, and the burden of doing so falls on the wife: Jacombe v Jacombe (1961) 105 CLR 355 at 359.
In this case, the primary judge observed that the wife’s at times conflicting and inconsistent submissions as to the invalidity of the marriage were not supported by any expert evidence (at [55]). The requirement for such evidence was made clear in Pathak & Hardikar (2022) FLC 94-111 at [18]–[19] and Talwar & Sarai (2018) FLC 93-855 at [36]–[47].
Secondly, the wife’s contention of invalidity contradicted her own actions and statements including her action in the Country B Court seeking a restitution of conjugal rights.
In those circumstances, the primary judge found that the wife had not discharged the onus, which she carried, of rebutting the presumption of validity of the marriage (at [57]). No error has been established in respect to the primary judge’s conclusion in that respect.
Criteria for Divorce Not Met
The wife argues that the criteria for divorce under s 48(3) of the Act have not been met in this case because there remained a prospect of the parties reconciling (Wife’s Summary of Argument filed on 10 January 2025, paragraph 30).
The trial judge rejected wife’s argument that there is a reasonable likelihood of cohabitation being resumed finding that the husband did not want to reconcile (at [80]). In that respect, the primary judge accepted the husband’s evidence that he had no intention of resuming the marital relationship. The primary judge found that husband’s conduct in contesting the wife’s application for the restitution of conjugal rights demonstrated a clear lack of desire to resume the marriage (at [79]).
Those factual findings were reasonably open on the evidence and no error has been demonstrated.
Violation of Conventional Law
The wife contends that the primary judge violated conventional law and obligations under what she referred to at times in her Summary of Argument as s 88A of the Marriage Act 1961 (Cth) (“the Marriage Act”) and at other times as “section 88A of Part VA of The Family Law Act”. The wife’s submissions in respect to this issue were, with respect, incomprehensible.
As counsel for the respondent submitted, it is possible that the appellant intended to refer to s 88D(4) of the Marriage Act. That section provides an exception to the operation of s 88D(1), which relates to the recognition of foreign marriages. Relevantly s 88D(4) of the Marriage Act provides that “[a] marriage solemnised in a foreign country, being a marriage to which this Part applies, shall not be recognised as valid in accordance with subsection (1) at any time while the marriage is voidable”.
The concept as to when a foreign marriage is “voidable” within the terms of that section is open to debate and the case of Bhakta & Konda [2021] FCCA 1751 at [54]–[60] provides a useful discussion. However, it is unnecessary for me to consider that question for the purpose of determining this appeal.
The difficulty of the wife sustaining that argument is that, as earlier mentioned, there was no expert evidence before the trial judge that enabled her to conclude that the parties’ marriage under Country B law was voidable.
As earlier noted, the judgment for the substantive Country B Application at [13] stated that under the Hindu Marriage Act, the parties’ marriage was invalid because the wife was not a Hindu at the time of marriage. That statement was made in the broader context of the Country B Court rejecting the wife’s application for the restoration of conjugal rights which was dismissed for reasons that included the Country B Court finding, at [14], that the wife provided misleading information about her usual place of residence being in Country B and that the appropriate forum for determining the parties dispute was Australia. Moreover, the Country B Court was focusing upon the status of the parties’ marriage under the Hindu Marriage Act and not the general law of Country B.
In the absence of expert evidence in respect to the issue, the primary judge correctly rejected the wife’s argument that the parties’ marriage was invalid (at [57]).
Having determined that the appeal is without merit, the appeal is dismissed.
COSTS
The wife opposed an order for costs in circumstances where she is a single mother dependent upon social security and suffers from a chronic medical condition (Appeal Transcript 7 February 2025, p.21 lines 1–6). No evidence was provided by the mother in respect to her health but there was no challenge to her assertion regarding her health challenges.
I have considerable sympathy for the wife, however, in circumstances where she has been wholly unsuccessful in terms of s 117(2A)(e) of the Act and I have considered the appeal to be wholly without merit, it would be unfair to the husband to fail to compensate him for the costs he has incurred.
I consider the costs sought by the husband on a party/party basis amounting to $6,743,[13] to be appropriate, reasonable, and proportionate to the issues determined.
[13] Appeal Transcript 7 February 2025, p.21 lines 10–19; See also husband’s Schedule of Costs filed on 30 January 2025.
Therefore, I order the wife to pay the husband’s costs in the sum of $6,743. In light of her financial and health challenges, I grant her a period of six months to pay this amount.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 7 March 2025
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