Bhakta & Konda

[2021] FCCA 1751

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bhakta & Konda [2021] FCCA 1751

File number(s):

PAC 5203 of 2020

Judgment of:

JUDGE TURNBULL

Date of judgment:

10 August 2021

Catchwords:

FAMILY LAW – divorce – nullity – annulment – Wife filed nullity proceedings in India and Husband filed Applications for Divorce in Australia – whether section 52 of the Family Law Act 1975 (Cth) applies to overseas applications for nullity – meaning of “court” – whether Australia is a clearly inappropriate forum – forum non conveniens – stay of proceedings

Legislation:

 Family Law Act 1975 (Cth) ss 39(3), 51, 52, 104(3)(d)

Marriage Act 1961 ss 88D, 23B(1)(d)(iii)

Acts Interpretation Act 1901 (Cth) ss 15AA, 18A, 13(1)(b)

Hindu Marriage Act 1955 (India) ss 5(b)(ii), 12

Cases cited:

Harwood & Jade [2009] FamCA 912

Henry v Henry [1996] HCA 51; 185 CLR 571

In Marriage of Teves III & Campomayor (1995) FLC 92-578; (1994) 122 FLR 172

In Marriage of C (1998) 146 FLR 406

Kemeny & Kemeny [1998] FamCA 114; 145 FLR 6

Mehra & Bose [2013] FCCA 2273

Obannon & Scarffe [2021] FamCAFC 33; 62 Fam LR 397

Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; 165 CLR 197

Pierson & Romilly [2020] FamCAFC 91; 61 Fam LR 541

Singh v Commonwealth [2004] HCA 43; 222 CLR 322

Skinner & Alfonso-Skinner [2010] FamCA 329

Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460

Talwar & Sarai [2018] FamCAFC 152

The Abidin Daver [1984] AC 398

Voth v Malildra Flour Mills Pty Ltd [1990] HCA 55; 171 CLR 538

Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; 266 CLR 428

Number of paragraphs:

149

Date of hearing:

8 June 2021

Place:

Parramatta

Appearing for the Applicant:

Mairna Hermiz

Solicitors for the Applicant: 

Platinum Lawyers

Appearing for the Respondent: 

Alicia Prest

Solicitors for the Respondent: 

Goldbrook Family Law

ORDERS

PAC 5203 of 2020

BETWEEN:

MR BHAKTA

Applicant

AND:

MS KONDA

Respondent

ORDER MADE BY:	JUDGE TURNBULL
DATE OF ORDER:	10 AUGUST 2021

THE COURT ORDERS:

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Bhakta & Konda is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Judge Turnbull

1. These are Reasons for Judgment in respect of divorce proceedings instituted by the Husband, Mr Bhakta, and opposed by the Wife, Ms Konda.

   Overview

2. The parties were married in India in 2018 and separated on a final basis on or around December 2018. Their period of cohabitation lasted 16 days, divided equally between Australia and India.[1]

   [1] Husband’s written submissions at page 9, adopting the Wife’s evidence in her Petition filed in City E, India on 5 March 2019 (Annexure “C” to Wife’s affidavit affirmed on 12 March 2021).

3. The Wife is an Australian citizen. It is unclear whether the Husband is now an Australian citizen. Both parties reside in Australia.

4. On 5 March 2019 the Wife commenced proceedings in the ‘Court of the Honourable Court Judge at City C (‘the Indian Family Court’) under the Hindu Marriage Act (‘the Indian proceedings’), petitioning for:

   a)an order or decree annulling the marriage between the parties, and for the Wife to be awarded special costs;

   b)an order directing the Husband to return all of the Wife’s possessions, including gold ornaments pledged as security to the State Bank of India, City D; and

   c)an order directing the Husband to pay the Wife a sum of Rs. 4,59,550.00.

5. The issue of annulment is being heard separately to the other matters.

6. Both parties lived in India when the Wife’s Petition was filed.

7. As of 8 June 2021, the Husband has participated once in the Indian proceedings. This occurred on 21 April 2021 by teleconference.  The matter was last before a court in India on 14 June 2021 in relation to the application for the return of gold and the repayment of the loan issue.

8. The hearing of 14 June 2021 did not concern the annulment application. The date for a final hearing in relation to any of the issues is unknown.

9. On 30 September 2020, the Husband filed an Application for Divorce in this Court. The matter was listed before a Registrar on 27 January 2021 and 28 April 2021. The Husband also filed an Application in a Case on 26 January 2021 for substituted service. That Application was dismissed on 18 February 2021 because, on this occasion, the Wife appeared and confirmed that she had been served with the Husband’s Application for Divorce.

10. On 12 March 2021 the Wife filed a Response to Divorce opposing the Husband’s Application.

11. The Wife’s position is that this Court should dismiss these divorce proceedings, or at least stay them until the Indian proceedings have concluded.

12. The Wife argues that, by virtue of section 52 of the Family Law Act 1975 (Cth) (‘the Act’), the fact that she has filed annulment proceedings in India prevents this Court from making the divorce order sought by the Husband. Alternatively, the Wife argues that this Court is a clearly inappropriate forum to deal with the proceedings.

13. The Wife concedes that the Husband’s Application for Divorce is otherwise in proper form.

14. The Husband argues that section 52 of the Act cannot apply where the Wife’s annulment application has been filed in another country. The Husband also argues that the Wife has not discharged the onus of establishing that this Court is a clearly inappropriate forum to deal with the proceedings. He seeks an order that the Wife’s Response be dismissed.

15. The Wife’s Application for a stay or dismissal of these proceedings was heard on the papers, with oral submissions, on 8 June 2021.

    Documents relied upon

16. The Wife relied upon following documents:

    (a)        Response (Divorce or other principal relief) filed 12 March 2021;

    (b)        Affidavit of  Ms Konda affirmed 12 March 2021;

    (c)        Acknowledgement of Service (divorce) filed 13 March 2021;

    (d)        The Wife’s written submissions filed 7 June 2021; and

    (e)        Copy of the Hindu Marriage Act.

17. The Husband relied upon the following documents:

    (a)   Husband’s Application for Divorce filed 30 September 2020;

    (b)   Affidavit of Mr Bhakta filed 30 September 2020;

    (c)   Affidavit of Mr Bhakta filed 8 October 2020; and

    (d)   The Husband’s written submissions filed 28 April 2021.

    The Husband’s Application for Divorce

18. The first question is whether or not the Husband’s Application for Divorce meets all necessary statutory requirements.

19. Section 39(3) of the Act states:

    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

    is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.

20. The Wife is an Australian citizen and she and the Husband are domiciled in Australia.

21. Section 48 of the Act states:

    (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.

22. All of the above requirements are met, and there is no likelihood of cohabitation resuming.

23. Section 55A(1) of the Act does not apply as the parties do not have children.

24. The Wife concedes that the Court may make a divorce order if her arguments for a dismissal or stay of the Husband’s Application for Divorce fail.

    Do the Indian proceedings for annulment prevent this Court from determining the Husband’s Application for Divorce?

25. Ms Prest, for the Wife, submits that the unresolved annulment proceedings in India prevent this Court from making a divorce order.

26. Section 52 of the Act states:

    Where both an application for a decree of nullity of a marriage and an application for a divorce order in relation to that marriage are before a court, the court shall not make a divorce order in relation to the marriage unless it has dismissed the application for a decree of nullity of the marriage.

27. It was submitted that section 52 of the Act applies to this case, notwithstanding that the Wife’s Application for annulment and the Husband’s Application for Divorce are before different Courts in different countries.

28. Ms Prest submitted that the term ‘court’ in section 52 of the Act should be interpreted widely as to include nullity proceedings in any court, not just proceedings for nullity filed pursuant to the Act. The basis for this submission is that, if a solemnised foreign marriage is voidable, Australian law will not recognise it as a valid marriage.

29. Section 88D(4) of the Marriage Act 1961 (Cth) (“the Marriage Act”) states:

    A marriage solemnised in a foreign country, being a marriage to which this Part applies, shall not be recognized as valid in accordance with subsection (1) at any time while the marriage is voidable.

30. Subsection (1) to section 88D states:

    Subject to this section, a marriage to which this Part applies shall be recognised in Australia as valid.

31. It was submitted that the Hindu Marriage Act is the relevant legislation applying to the marriage between the parties, solemnised in India.

32. Section 12(5)(b)(ii) of the Hindu Marriage Act states:

    Voidable marriages.

    (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

    (a) that the marriage has not been consummated owing to the imporence [sic] of the respondent ; or

    (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5 ; or…

33. The conditions for a Hindu marriage are contained in section 5(ii) of the Hindu Marriage Act, which states:

    A marriage may be solemnized between any two Hindus if the following conditions are fulfilled, namely: —

    (a)   neither party has a spouse living at the time of the marriage;

    (b)      at the time of the marriage, neither party —

    (i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

    (ii) although capable of giving valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

    (c)       has been subject to recurrent attacks of insanity; …

34. The Wife’s annulment application is predicated upon her claim that the Husband was subject to recurrent attacks of insanity at the time of the marriage.[2] As a result, it is argued, the marriage is voidable under the Hindu Marriage Act.

    [2] Wife’s affidavit affirmed 12 March 2021, Annexure “C” at page 16.

35. The Wife, in essence, submitted that the purpose of section 52 is to prevent a divorce order from being made with respect to a marriage that may never have never existed. It was submitted that section 52 must, therefore, be interpreted broadly and apply to nullity proceedings filed in another country. This should, the Wife argues, result in the divorce proceedings not being heard until the outcome of the Indian proceedings is known.

    Does the word ‘court’ in section 52 of the Act, as a matter of statutory construction, include overseas courts?

36. Section 52 of the Act, as extracted in these reasons, states (emphasis added):

    Court not to make divorce order where application for decree of nullity before it

    Where both an application for a decree of nullity of a marriage and an application for a divorce order in relation to that marriage are before a court, the court shall not make a divorce order in relation to the marriage unless it has dismissed the application for a decree of nullity of the marriage.

37. Section 15AA of the Acts Interpretation Act 1901 (Cth) requires that, in interpreting a legislative provision, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

38. With respect to purposive interpretation, Gleeson J in Singh v Commonwealth stated:

    “Principles of purposive construction, and the provisions of the Acts Interpretation Act, dictate that regard be paid to purpose and object. Section 15AA of the Acts Interpretation Act provides that, in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. Section 15AB permits consideration of extrinsic material in the interpretation of an Act "if [the] material ... is capable of assisting in the ascertainment of the meaning of [a] provision", in order to confirm that the meaning is the ordinary meaning conveyed by the text "taking into account its context in the Act and the purpose or object underlying the Act", or to resolve ambiguity or obscurity, or to determine the meaning of a provision when the ordinary meaning of the text leads to manifest absurdity or unreasonableness. A non-exhaustive list of potentially available extrinsic materials, including parliamentary records, is set out in s 15AB(2). That brings me to the Convention Debates, there being no reason to doubt that interpretative principles of the same kind as those set out in s 15AB are also relevant to the Constitution, making due allowance for the nature of the Constitution as an instrument of government and not an ordinary statute.”[3]

    [3] Singh v Commonwealth (2004) 222 CLR 322, 336-337.

39. Gageler J in Work Health Authority v Outback Ballooning Pty Ltd, referring to Singh and other authorities, stated:

    “One of the surest indexes of a mature and developed jurisprudence" is "to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. The responsibility of a court performing its constitutionally mandated function of authoritatively attributing meaning to a legislated text, to the extent necessary to resolve a dispute as to legal rights or legal obligations, is correspondingly "to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have”. That a finding of purpose can involve a "contestable judgment” only heightens that responsibility.

    The words 'intention', 'contemplation', 'purpose', and 'design' are used routinely by courts in relation to the meaning of legislation" and "are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked”. Each is appropriate to be used by a court to acknowledge the indisputable and foundational fact that legislated text is the product of deliberative choice on the part of democratically elected representatives to pursue collectively chosen ends by collectively chosen means. To reduce legislative intention to a label for the outcome of a constructional choice made by the court itself, is to miss the point of the traditional terminology. It is to ignore that the responsibility of the court, in making a constructional choice, is to adopt an authoritative construction of legislated text which accords with the imputed intention of the enacting legislature. Worse, it is to use a constructional methodology which fails to give full expression to "the constitutional relationship between courts and the legislature.” [4]

    [4] Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428, 460-461.

40. The word “court” is defined in section 4 of the Act as follows:

    court, in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act.

41. Section 52 refers to “a court” and “the court”. Grammatically, “a court” imports an indefinite meaning to the word, and “the court” imports a definite meaning of the word. The rules of statutory interpretation, in section 18A of the Acts Interpretation Act 1901, alternatively provide that:

    In any Act where a word or phrase is given a particular meaning, other parts of speech or grammatical forms of that word or phrase have corresponding meanings.

42. The legislature, by defining the word “court”, has evidenced an intention to refer only to Courts exercising jurisdiction under the Act, whether expressed as a definite or indefinite grammatical form.

43. The context in which the terms “a court” and “the court” exist, including the title of section 52 itself, also informs their intended meaning. Section 13(1)(b) of the Acts Interpretation Act provides that the heading of a legislative provision may form that context, as follows:

    (1) All material from and including the first section of an Act to the end of:

    ….

    (b) if there are one or more Schedules to the Act — the last Schedule to the Act;

    is part of the Act.

44. The heading to section 52 states (emphasis added):

    Court not to make divorce order where application for decree of nullity before it

45. By including “before it”, the heading anticipates that the divorce and annulment proceedings will be before the same “court” — that “court” being any court exercising jurisdiction under the Act.

46. The word “court” in section 52 of the Act cannot, therefore, include the Indian Family Court exercising jurisdiction under the Hindu Marriage Act.

47. Only the Indian Family Court can determine the Wife’s annulment Application in the Indian proceedings. In doing so, the Indian Family Court cannot exercise jurisdiction pursuant to the Act.

48. Further, section 52 applies to situations where annulment and divorce proceedings are both before “a court” at the same time. In this case, the annulment proceedings and the divorce proceedings are before two different courts.

49. Section 52 goes on to state that “the court” shall not make the divorce order unless:

    it has dismissed the application for a decree of nullity of the marriage.

50. This Court has no ability to dismiss, or in any way determine, the Indian proceedings.

51. It is clear, therefore, that section 52 can only apply to a situation where proceedings for nullity and divorce filed pursuant to the Family Law Act 1975 (Cth) are both before a court with jurisdiction to determine matters under that legislation. The purpose of section 52 is to deal with the conflict of competing applications under the Act. There is no such conflict in this case.

    No relevance of section 88D(4) of the Marriage Act for the operation of section 52 of the Act

52. The Indian Family Court may determine that the marriage is voidable under section 12 of the Hindu Marriage Act because of the Husband’s alleged insanity at the time of the marriage.

53. If the Indian Family Court annuls the marriage by order or decree, this will be recognised in Australia by virtue of section 104(3)(d) of the Act, which states:

    A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, effected in accordance with the law of an overseas jurisdiction shall be recognised as valid in Australia where:

    ……..

    (d) the respondent was a national of the overseas jurisdiction at the relevant date…

54. Section 88D(4)(a) of the Marriage Act, extracted previously in these reasons, provides that the marriage shall not be recognised as valid at any time while the marriage is voidable under the local law.

1. The operation of this section and the distinction between a “void” and “voidable” marriage was considered in C & C (Nullity) where the Full Court stated:

   “The basis of distinction between a void marriage and a voidable marriage is that a void marriage has never been validly contracted whilst a voidable marriage remains valid for all purposes until one or other of the parties seeks to have it annulled…” [5]

   [5] In Marriage of C (1998) 146 FLR 406, 412 (Baker, Kay and Burton JJ).

2. The Full Court continued:

   “The circumstances in which Australian courts shall recognise as valid marriages solemnised outside of Australia (other than those involving an Australian citizen and being solemnised by a Marriage Officer in accordance with provisions of Division 2 of Part V of the Marriage Act, for example, by an Australian consular official) are dealt with by the provisions of Part VA of the Marriage Act. In addition to circumstances in which such marriages are to be recognised by the common law rules of private international law, every marriage solemnised, whether before or after the commencement of Part VA of the Marriage Act, where under the local law the marriage was, at the date it was solemnised, recognised as valid, shall be recognised in Australia as valid unless one of the exceptions as set out in s88D of the Marriage Act applies. The exceptions set out in subs88D(2) include bigamy, lack of marriageable age, being within a prohibited relationship or the lack of real consent.

   Section 88D(4) provides as follows:

   "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 - (a)...under the local law."

   88B(1) defines "local law" as meaning:

   "...in relation to a marriage solemnised in a foreign country... the law in force in the foreign country or in that part of the foreign country in which the marriage was solemnised."

   Section 88D forms part of Part VA of the Act which incorporates subss88A through 88G. Section 88A states:

   "The object of this Part is to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages signed at The Hague on 14 March 1978."

   The Convention is relatively short and it is convenient to set out the relevant parts:

   "Convention on Celebration and Recognition of the Validity of Marriages

   (The Hague, 14 March 1978)

   Entry into force for Australia and generally: 1 May 1991

   THE STATES SIGNATORY TO THE PRESENT CONVENTION,

   DESIRING to facilitate the celebration of marriages and the recognition
   of the validity of marriages,     

   
   

   HAVE RESOLVED to conclude a Convention to this effect, and have agreed on the following provisions —

   ...

   CHAPTER II

   RECOGNITION OF THE VALIDITY OF MARRIAGES

   Article 7 This Chapter shall apply to the recognition in a Contracting State of the validity of marriages entered into in other States.

   Article 9 A marriage validly entered into under the law of the State of celebration or which subsequently becomes valid under that law shall be considered as such in all Contracting States, subject to the provisions of this Chapter.

   ...

   Article 10 Where a marriage certificate has been issued by a competent authority, the marriage shall be presumed to be valid until the contrary is established.

   Article 11 A Contracting State may refuse to recognize the validity of a marriage only where, at the time of the marriage, under the law of that State-

   (1) one of the spouses was already married; or

   (2) the spouses were related to one another, by blood or by adoption, in the direct line or as brother and sister; or

   (3) one of the spouses had not attained the minimum age required for marriage, nor had obtained the necessary dispensation; or

   (4) one of the spouses did not have the mental capacity to consent; or

   (5) one of the spouses did not freely consent to the marriage. However, recognition may not be refused where, in the case mentioned in sub-paragraph 1 of the preceding paragraph, the marriage has subsequently become valid by reason of the dissolution or annulment of the prior marriage.

   Article 12 The rules of this Chapter shall apply even where the recognition of the validity of a marriage is to be dealt with as an incidental question in the context of another question. However, these rules need not be applied where that other question, under the choice of law rules of the forum, is governed by the law of a non-Contracting State.

   Article 13 This Convention shall not prevent the application in a Contracting State of rules of law more favourable to the recognition of foreign marriages.

   Article 14 A Contracting State may refuse to recognize the validity of a marriage where such recognition is manifestly incompatible with its public policy (ordre public).

   Article 15 This Chapter shall apply regardless of the date on which the marriage was celebrated. However, a Contracting State may reserve the right not to apply this Chapter to a marriage celebrated before the date on which, in relation to that State, the Convention enters into force."

   Nowhere in the Convention is there a mention of the concept of "voidable marriages". The Convention deals with the recognition of the validity of marriages and is designed to facilitate the recognition of the validity of marriages. The bases upon which contracting States may refuse to recognise the validity of marriages are limited to those set out in Article 11. Read in the context of the Convention, one possible interpretation of the reference in s88D(4) to a marriage being "voidable" is that it applies only to a marriage within the parameters of Article 11 but which by reason of law of the country where the marriage was solemnised is not ipso facto void. If that is the proper interpretation of s88D then that section has no application at all when the validity of a foreign marriage is called into question in Australia on the basis that it was a voidable marriage within the more traditional grounds recognised by the common law, such as incapacity or refusal to consummate a marriage.

   Alternatively, the reference in s88D(4) to a marriage being voidable in accordance with local law is a reference to a marriage which is capable of being set aside according to the law of the place where it was celebrated as at the date its validity is drawn into question in the Australian courts.

   Under English law as it presently stands there is clearly no jurisdiction for an English court to declare this marriage void. Under the laws of England, a marriage performed prior to August 1971 remains voidable on the ground that either of the parties was not competent to perform marital intercourse. However, an application for nullity may only be brought in England if either of the parties to the marriage -

   “(a) is domiciled in England or Wales on the date when the proceedings are
   begun; or,

   
         

   (b) was habitually resident in England and Wales throughout the period of one
   year ending with that date; or

   
        

   (c) died before that date and either:

   (i) was at death domiciled in England or Wales, or

   (ii) had been habitually resident in England and Wales throughout the
   period of one year ending with the date of death."

   
        

   (See Domicile and Matrimonial Proceedings Act 1973 (UK) s 5).

   Subsequent amendments to the Domicile and Matrimonial Proceedings Act 1973 by the English Family Law Act 1996 (UK) do not affect the basic principle that neither the applicant nor the respondent in this case have locus standi in an English court to seek an order rendering their marriage void. Accordingly, whatever is the proper operation of s88D, and whatever effect it might otherwise have in proceedings for a declaration of nullity of marriage, in this case it could not be said that an Australian court ought not have recognised as valid the marriage solemnised between these parties on the basis that it was voidable under the local law of the place where it was solemnised.”[6]

   [6] Ibid 413-415.

3. The question as to whether a “voidable” marriage is capable as being regarded as “void” and therefore attract the provisions of section 51 of the Act dealing with nullity, is, in my view, open to debate so far as that term is used in section 88D(4) of the Marriage Act.

4. As previously extracted, section 88D(4) states that marriage solemnised in a foreign country, shall not be recognised as valid any time while the marriage is voidable.

5. In Teves III & Campomayor, Lindenmayer J considered if there was a distinction between a marriage that is void and a marriage that is not recognised as valid in Australia:

   “At first I had some difficulty in accepting that submission because nowhere in Part VA of the Marriage Act is it provided that a marriage entered into in a foreign country is "void", for the purposes of Australian law, in circumstances defined in s 88D(2), but only that in those circumstances it "shall not be recognized [in Australia] as valid" (emphasis added). This may be contrasted with ss 23 and 23B, which provide that a marriage to which either of those sections directly applies "is void" in those circumstances. However, on reflection, I think that the submission is a sound one because it is inconceivable that in circumstances where a court of this country, exercising the judicial power of the Commonwealth, is obliged by a valid statute of the Commonwealth not to recognize, as valid, a marriage solemnized in a foreign country, that court could refuse to declare the marriage invalid (which is all a decree of nullity does) at the suit of one of the parties to that marriage who has properly invoked the court's jurisdiction to make such a declaration, merely because the section under which the application is brought uses the expression "void" as the basis for a nullity application rather than , say "invalid" or "not valid". In short, I conclude that if, in accordance with s 88D(2) of the Marriage Act, a marriage solemnized outside Australia is one which is required not be recognized in Australia as valid, then it is "void" within the meaning of that term as used in s 51 of the Family Law Act.

   Some support for that conclusion may be obtained from s 88F of the Marriage Act which provides:

   "Notwithstanding any other law, the question whether a marriage solemnized in a foreign country is to be recognized in Australia as valid shall be determined in accordance with the provisions of this Part, whether or not the determination of the question is incidental to the determination of another question.”[7]

   [7] In Marriage of Teves III & Campomayor (1994) 122 FLR 172, 176.

6. This case centres on section 88D(4) not (2), but sub-paragraph (4) does refer to a marriage not being recognised as “valid”. It may therefore be arguable that if the Wife is successful with her annulment application in India that her marriage will also be regarded as “void” in Australia, and therefore, could, theoretically, attract the operation of section 51.

7. As such it is arguable that, if the divorce order is made, the Wife will be denied the opportunity to apply for nullity proceedings in Australia, if the annulment is ordered in India.

8. That possibility does not, however, mean that section 88D(4) is relevant to the operation of section 52. That section requires that an application for nullity be before a ‘court’, as defined by the Act. The possibility of the marriage being annulled is not, by itself, sufficient to prevent this court from determining the Husband’s Application for Divorce.

9. The Wife has not filed an Application for Nullity before a court with jurisdiction under the Act. The Wife’s case therefore fails in this regard.

10. The possibility of annulment is a relevant consideration when determining the question of the appropriate forum, to which these reasons now turn.

    Is Australia a clearly inappropriate forum?

11. The test for determining the forum for a proceeding was discussed by the High Court in Henry v Henry in which Dawson, Gaudron, McHugh and Gummow JJ outlined the general principle governing a stay of proceedings in favour of a foreign forum:

    “In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, "the discussion by Lord Goff in Spiliada of relevant 'connecting factors' and 'a legitimate personal or juridical advantage' provides valuable assistance". In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being "where the case may be tried 'suitably for the interests of all the parties and for the ends of justice.” [8]

    [8] Henry v Henry (1996) 185 CLR 571, 586-587.

12. Their Honours continued:

    “Foreign proceedings usually fall for consideration in a context in which they involve the same or related factual issues as those involved in the local proceedings, but not the same legal issue and, perhaps, not the same parties. Even in cases of that kind it may sometimes be appropriate to grant a temporary stay of the local proceedings to allow the factual issues to be determined in the other jurisdiction. There are more compelling considerations in favour of a stay of the local proceedings if, as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings and the proceedings are between the same parties and with respect to the same issue or controversy.

    Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia. In Union Steamship Co of New Zealand Ltd v The Caradale, Dixon J observed of that latter situation that "(t)he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration." From the parties' point of view, there is no less - perhaps, considerably more - inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.

    It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.

    It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be 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 and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.

    Proceedings between Husband and Wife with respect to the marital relationship

    If separate proceedings are commenced between Husband and Wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between Husband and Wife with respect to their marital status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.

    Although the appellant first brought proceedings against the respondent in Monaco for judicial separation and, only later, commenced proceedings for divorce, both proceedings were, in essence, proceedings with respect to their marital relationship. Clearly, it was the same marital relationship which was the subject of the divorce proceedings brought in Australia by the respondent. And although it may not be quite so clear, the property proceedings instituted by the respondent in the Family Court are but an aspect of his controversy with the appellant as to their marital relationship. It may have been otherwise if they were no longer married, but so long as their marriage subsists, their dispute with respect to property is a dispute as to the rights and obligations arising out of their marital relationship and those which should attend its dissolution. As such, it is properly to be seen as part of the controversy with respect to that relationship.

    Considerations relevant to a stay of proceedings between Husband and Wife with respect to their marital relationship

    Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees. If the orders of the foreign court will not be recognised in Australia that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done . As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy.

    Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.”[9]

    [9] Ibid 590-592.

1. The Full Court of the Family Court in Obannon & Scarffe considered the question of comparing the merits and manner that proceedings may be conducted in each country, stating that:

   “[o]ne legitimate purpose of comparing the law in each jurisdiction is to identify the existence of any juridical advantage to a party. Any juridical advantage so identified is one of the factors to be assessed. However it is not a legitimate purpose of such a comparison for a trial judge to thereby assess the comparative merits of the manner in which a case is determined as between the local and foreign tribunal. In this case the primary judge appears to give emphasis to his conclusions about the merits of Australian law in the manner in which property cases are determined, as compared to Singapore, rather than confining the consideration to one of effective dealing with the dispute arising from the breakdown of the parties’ marriage involving divorce, parenting issues, spousal maintenance and child support. We consider that to be an error of principle in the approach taken.”[10]

   [10] (2021) 62 Fam LR 397, 422.

2. The Full Court of the Family Court also stated in Pierson & Romilly that:

   “[t]he process is not one of weighing those factors that point towards a stay against those that point away from a stay, but rather of assessing whether there are enough factors indicating that the forum is clearly inappropriate, in which case a stay should be granted. If there are significant factors pointing to the conclusion that the chosen forum is appropriate, it is immaterial that there may be many factors suggesting that another forum might also be appropriate or even more appropriate.”[11]

   [11] (2020) 61 Fam LR 541, 546.

3. The case authorities,[12] including cases which summarise the authorities,[13] reveal the following non-exhaustive list of matters relevant to  the application of the “clearly inappropriate forum” test:

   [12] Henry v Henry (n 9), 592-593.

   [13] Skinner & Alfonso-Skinner [2010] FamCA 329, [69] (Murphy J).

   •Whether each court will recognise the other’s orders and decrees.

   •Which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.[14]

   •The order in which the proceedings were instituted.

   •The stage at which the proceedings have each reached.

   •The costs that have been incurred by the parties.

   •The connection of the parties and their marriage to each of the jurisdictions. [15]

   •The issues on which relief might depend in each of the jurisdictions.

   •The resources of the parties and their understanding of language enabling the parties to participate in the respective proceedings on an equal footing.

   •Any other factors within the “general circumstances of the case, taking into account the true nature and full extent of the issues involved”.[16]

   [14] Henry v Henry (n 9), 587; Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460, [478] (Goff L). The majority in Henry notes that this factor is a “relevant but not decisive consideration, [with] the fundamental question being “where the case may be tried ‘suitably for the interests of all the parties and for the ends of justice’””. The discussion of the “legitimate personal or juridical advantage” in The Spiliada goes to this question of the effectiveness of an Australian forum in hearing the matter. See also Navarro v Jurado (2010) 247 FLR 374, 395 (O’Ryan J), in which the factor is framed as ‘the significance to a plaintiff of losing any legitimate personal or juridical advantage available in the local forum’.

   [15] Voth v Malildra Flour Mills Pty Ltd (1990) 171 CLR 538, 565 (Mason CJ, Deane, Dawson and Gaudron JJ);

   [16] Henry v Henry (n 9), 593.

4. The factors with respect to effective and complete resolution of the controversy and of the connection to each jurisdiction above, come from the discussion of Goff L in Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada).[17] This discussion “provides valuable assistance” in applying the “clearly inappropriate forum” test. It does not import the British “clearly more appropriate forum” test.[18]

   [17] The Spiliada (n 16), [478].

   [18] Voth v Malildra Flour Mills Pty Ltd (n 17), 565.

5. On behalf of the Wife, Ms Prest states in her written submission:

   As a resident of Australia, the Husband is prima facie entitled to the benefits and protections of Australian law, however that right will yield to a finding that the Court is a clearly inappropriate forum. India also has jurisdiction to dissolve the marriage, thereby satisfying the second limb of the test. It is the Wife’s respectful submission that the FCCA is a clearly inappropriate forum to hear the Divorce Order and the Divorce proceedings in Australia should be stayed until further Order due to:

   1. a lack of connection between the marriage, the property of the marriage and Australia;

   2. the timing of the Wife’s application in India which significantly preceded the Husband’s application in Australia;

   3. the jurisdiction of the Indian Court to provide a more complete resolution to the parties in relation to the dissolution of the marriage and in relation to property of the marriage; and

   4. it was vexatious and oppressive of the Husband, to commence a second or subsequent action in Australia in circumstances where there is already an action with respect to the matter in issue on foot in India. The Husband could achieve his objective to re-marry in Australia by agreeing to the annulment in India.

6. Ms Hermiz, for the Husband, submits that the Wife has not discharged the onus of establishing that this Court is an inappropriate forum, stating in her written submission (citations removed):

   Finalising the proceedings here in Australia will alter the legal status of the parties’ relationship, which seems to be the main issue arising out of the matrimonial relationship. Given the context of a very short marriage, the primary issue is arguably the change in legal status of the relationship. The way this is done differs on both the parties’ applications. The Wife seeks an annulment via her Indian divorce, while the Husband seeks a divorce Order through his Australian divorce.

   The Husband respectfully submits that Kemeny is to be upheld in this matter, insofar as this Court’s jurisdiction is invoked with respect to the legal status of the relationship.[19] The Wife can still pursue her claim for recovery of monies against the Husband in the Indian Courts. While the Court in Henry acknowledged that issues between a Husband and Wife arise out of a “single controversy”, it is submitted that in this matter the subjective facts do not warrant such a universal approach. This is due to the fact there are no children to the relationship (rendering no live issue with respect to parenting arrangement), and further, the lack of (any/likely) claim for a property settlement given a short marriage.

   This all must be viewed in the context of a very short marriage where cohabitation lasted only 16 days, split evenly between India and Australia. The parties are now required to undergo the mandatory counselling prescribed by the Indian divorce process, though any prospect of reconciliation is, on the Husband’s view, impossible. The Husband wishes to effect a divorce here in Australia so he can re-marry his new partner. The Husband has spent considerable resources in time and money to prepare his application and serve the Wife. It is a real possibility that the Wife evaded service of the documents, thereby prolonging the Court process.

   Both parties reside in Australia, with the Wife being a permanent resident and the Husband living here with his new long-term partner.

   In view of the cases cited above, it is submitted that, had the parties been in a longer marriage with children, where one of the spouses resided in India and assets distributed between both jurisdictions, this Court may find Australia as being an inappropriate forum. However, in the context of this very short marriage with no children, where both parties are resident in Australia, such are indicators against proving Australia to be an inappropriate forum. It is submitted that these factors are indicators pointing away from Australia being a clearly inappropriate forum (though it is noted that the Husband does not bear the onus to demonstrate that Australia is an appropriate forum, but rather the Wife to prove otherwise).

   Moreover, it is submitted that no injustice would be occasioned to the Wife by a stay when other alternatives are open to her to seek financial relief against the Husband.

   [19] Kemeny v Kemeny (1998) 145 FLR 6.

7. I will consider each of the factors set out in paragraph 69 of these reasons which, while non-exhaustive, are well-recognised by High Court authority.

   Whether each court will recognise the other’s orders and decrees

8. There was no evidence adduced that an Indian Court will recognise an order or decree of an Australian court exercising jurisdiction under the Act. It has been successfully argued in other cases that an Indian court will recognise an Australian divorce order, but the question is not settled.[20] I am not in a position to find that an Indian court will recognise an Australian divorce order.

   [20] Mehra & Bose (No 3) [2013] FCCA 2273, [54]-[64].

9. Courts exercising jurisdiction under the Act will, by virtue of section 104(3)(d), recognise an order for annulment from the Indian Family Court.

10. Further, by virtue of section 88D(4) of the Marriage Act, a marriage which is voidable under local law will not be recognised as “valid” in Australia.

11. If this Court makes a divorce order, the outcome of the Indian proceedings with respect to annulment will then create one of two situations.

12. The first possibility is that the Indian Family Court later orders an annulment of the marriage. In this case, that order will be recognised by this Court, meaning that this Court will have issued a divorce order for a marriage not regarded as ‘valid’ under the Marriage Act.[21] Marriages which Australian courts must treat as ‘not valid’, in accordance with section 88D, are arguably ‘void’ in the same sense as section 51 of the Act.[22] Namely, in being “not valid” the marriage will have never existed, but will nevertheless have been subject to an order for divorce.

    [21] In Marriage of Teves III & Campomayor (n 8), 176 (Lindenmayer J). Note, this case concerned sub-sections 88D(2) and 88D(3) (instead of sub-section 88D(4)), but sub-sections (2), (3), and (4) use the same language of “shall not be recognised as valid”, which was subject to interpretation alongside the term “void” from section 51 of the Family Law Act 1975.

    [22] See Fatisi v Halisa [2020] FamCA 209 (Gill J), which at [28] extracts Teves III & Campomayor (n 8) and at [30] extracts Tao v Sterling [2018] FamCA 774, [14], citing both with approval, and concluding at [31] that “invalidity” in the Marriage Act equates to the concept of a marriage being “void” in section 51 of the Family Law Act 1975.

13. The second possibility is that, following the divorce order of this Court, the Indian Family Court refuses to annul the marriage. In this case, the parties will be divorced in Australia but remain married in India. The marriage would then fall under section 88C(1)(a) of the Marriage Act, unless another ground of invalidity in section 88D(4) was available. Sections 88C(1)(a) and 88D(1), together, afford validity to marriages properly solemnised under local laws of foreign countries. These sections cannot revive the parties’ marriage following a divorce order of an Australian court, regardless of whether that marriage may otherwise, following a refusal to annul by the Indian Family Court, be recognised as valid in Australia pursuant to sections 88C(1)(a) and 88D(4).

14. The possibilities outlined above each create a distinct conflict which cannot be cured. Section 58 of the Act only allows a rescission of a divorce order where (emphasis added):

    [i]f a divorce order has been made in proceedings but has not taken effect, the court by which the divorce order was made may, on the application of a party to the proceedings, or on the intervention of the Attorney-General, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, rescind the divorce order and, if it thinks fit, order that the proceedings be re-heard.

15. A divorce order will ordinarily take effect from the expiration of a period of 1 month from the making of the order.[23] The time period may be extended having regard to the possibility of an appeal, or be reduced having regard to special circumstances that justify the court so doing.[24] These sub-sections are the only means by which a divorce order may come into effect.

    [23] Family Law Act 1975 (Cth) s 55(1)(a).

    [24] Ibid s 55(2).

16. A divorce order cannot be appealed once it becomes absolute.[25]

    [25] Harwood & Jade [2009] FamCA 912, [47] (Loughnan JR).

17. Further, the Court cannot make a decree of nullity once a divorce order becomes absolute.[26]

    [26] In Marriage of C (n 6), 416.

18. Due to the consequences which will flow from this Court making a divorce order (regardless of whether the Indian Family Court annuls the marriage), and the irreversibility of such a divorce order, the continuation of these proceedings are potentially “oppressive or vexatious, productive of serious and unjustified trouble and harassment, and causative of inconvenience and embarrassment”.[27]

    [27] Voth v Malildra Flour Mills Pty Ltd (n 17), 557.

19. The High Court in Voth v Malildra Flour Mills Pty Ltd adopted the forum non conveniens test from Oceanic Sun Line Special Shipping Co. Inc. v Fay  in which Deane J stated (emphasis added):

    “... once it is accepted that the adjectives “oppressive” and “vexatious” are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings rather than the conduct of the plaintiff in continuing them, the continuation of proceedings in a tribunal which is a clearly inappropriate forum would, in the absence of exceptional circumstances being established by the plaintiff ... be oppressive or vexatious to such a defendant if there is some available and appropriate tribunal in another country…”[28]

    [28] Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, 247-248 (Deane J). Applied in Voth v Malildra Flour Mills Pty Ltd (n 17), 565.

20. In Talwar & Sarai (‘Talwar’) the Full Court allowed an appeal against the trial Judge’s refusal to grant a stay.[29] That case also involved a situation where proceedings had been filed in India and an Application for Divorce was subsequently filed in Australia.

    [29] Talwar & Sarai [2018] FamCAFC 152, [97]-[102] (Ainslie-Wallace, Ryan and Aldridge JJ).

21. In that case, the Indian Court had injuncted the Husband from proceeding with his Application for Divorce in Australia.

22. The Full Court considered the difficulty created by the parties being divorced in Australia but not in India:

    “We turn then to the effect of her Honour’s findings, which is that the Husband will be divorced in Australia but that the Wife will not be divorced in India. The primary judge described this as “an unfortunate outcome for the Wife” but considered that “it alone is not determinative of the matter” (at [66]).

    In Navarro v Jurado [2010] FamCAFC 210; (2010) 44 Fam LR 310 (“Navarro”) at 360, Ryan J took a different view. Her Honour said:

    ‘The focus of the Husband’s submission appeared to be upon the preliminary finding required before a divorce order in Costa Rica may issue. In my view, it is the complete effect of the application to which attention should be drawn. That is, an Australian divorce order would change the parties’ status in Australia from married spouses to being divorced. Because the Australian divorce order would not be recognised in Costa Rica, the Wife would remain married to the Husband while he was, as he said he would, in all likelihood simultaneously to be married to his Australian Wife. This situation would continue until the Wife’s application for divorce in Costa Rica was granted. Such an outcome would be productive of serious mischief. Even if the Husband chose not to remarry, that he would be divorced and the Wife remain married to him until her divorce application was granted is equally seriously mischievous. This was compelling evidence of injustice to the Wife in the Voth sense.’

    In a separate judgment, Thackray J regarded this as a significant matter (at [85] and [86]).

    Counsel for the Husband submitted that the finding of the primary judge was supported by authority and referred us to Dane & Kabrig[2013] FamCAFC 113 (“Dane”). In that case, Strickland J found that the fact that an Australian divorce would not be recognised in India was not sufficient to prevent the Australian divorce proceedings from continuing. However, the facts there were very different. The parties had arrived in Australia in 2004 as a couple. Both had become Australian citizens and neither had any plans to return to India.

    In the present case, the Wife was living in, and would continue to live in, India. There was no prospect of her coming to live in Australia and no reason for her to do so. The lack of a divorce in India would have a significant and adverse impact on her life. That was not the position in Dane.” [30]

    [30] Ibid [64].

23. The facts of this case are distinguishable from Talwar. Here the Husband and Wife live in Australia and there is no injunction ordered by the Indian Family Court.

24. Nevertheless, upon considering the “complete effect of the application”, the potential for “serious mischief” is clear.[31] The mischief, in this case, being a situation in which the parties were divorced in this country but remain married in India with the possibility of the marriage being annulled.[32]

    [31] Navarro & Jurado (2010) 247 FLR 374, 424 (O’Ryan J).

    [32] Ibid.

25. In Talwar the Court concluded on this issue (citations removed):

    “The outcome of being divorced in Australia but not in India where the Wife lives is, in our opinion, such an inappropriate result when there are proceedings on foot in India which avoid that dichotomy. As a factor to be taken into account it supports a finding that the Australian proceedings are “productive of serious and unjustified trouble and harassment” and “seriously and unfairly burdensome, prejudicial or damaging”. It cannot be dismissed as merely unfortunate.”[33]

    [33] Tawar & Sarai (n 35), [69].

26. In my view, this Court would be unlikely to make a divorce order if there was already a decree of annulment from the Indian Family Court. In that situation, this Court would recognise that decree of annulment and, therefore, refuse to recognise the marriage as valid in compliance with the Marriage Act section 88D. Yet, this Court is being asked to make a divorce order when it is on notice that the marriage may be annulled by the Indian Family Court. In my view, this creates serious mischief in the same manner as described by Ryan J in Navarro v Jurado; that different findings as to the status of the parties’ marriage between Australia and India results in the divorce proceedings producing serious and unjustified trouble and harassment, and being unfairly burdensome, prejudicial or damaging.  

27. This factor assists the Wife’s case.

    Which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy?

28. This Court is only seized of the Application for Divorce. The Wife’s Petition in the Indian Family Court, in addition to annulment orders, also seeks property and costs orders.

29. There are “strong reasons for preventing the bifurcation of proceedings”, but no impediment on doing so.[34] Murphy J states in Skinner & Alfonso-Skinner (‘Skinner’) that there is “nothing as a matter of principle that prevents the bifurcation of proceedings emanating from a single controversy with part of the proceedings being heard in one country and another part in another country, assuming that doing so causes no offence to international comity”.[35]

    [34] Skinner & Alfonso-Skinner (n 15) [67].

    [35] Ibid.

1. In Skinner, his Honour refused to stay property proceedings in Australia, though he did stay other aspects of the proceedings before the Court in that case. The Australian proceedings before Murphy J concerned property matters, and the continuing Spanish proceedings concerned matters of divorce, parenting, spousal maintenance, and child support.

2. In this case, there is no evidence that the Indian Family Court cannot effectively deal with all remaining matters, even if the divorce order is made by this Court.

3. The Indian Family Court can also deal with all matters involved in the parties’ controversy, including an application for divorce, if filed, pursuant to section 13 of the Hindu Marriages Act. It is sufficient that complete relief be available in the foreign proceedings as opposed to actively being sought.[36]

   [36] Tawar & Sarai (n 35), [87].

4. Equally, this Court could deal with all controversies connected to the parties’ marriage, including nullity and property matters.

5. I note, however, that the gold ornaments, the return of which the Wife seeks by order of the Indian Family Court, are held by the Indian Family Court.[37]

   [37] Wife’s affidavit affirmed on 12 March 2021 at paragraph 8. 

6. Currently, this Court is only being asked to deal with the Husband’s Application for Divorce. If that order is made, the Indian proceedings will remain to be determined, including the question of the validity of the marriage. If the marriage is annulled, the Husbands application has the real potential to cause serious embarrassment and unjustified trouble, for the reasons stated.

7. The Husband has explained, by affidavit, why he did not file divorce proceedings in India.[38] He explains that COVID-19 prevented him from travelling to, and filing proceedings in, India. He also explains that he believes filing for divorce in Australia will be a faster process, and that he would like to remarry.

   [38] Husband’s affidavit filed 8 October 2021.    

8. I note that the Husband did not file for divorce when both parties lived in India, at the time that Wife filed her Petition.[39] I also note that the parties have participated in the Indian proceedings by electronic means.[40] Whether the Indian Family Court will allow a final hearing to be conducted virtually is unknown, but seemingly possible.

   [39] Wife’s written submissions at page 3.

   [40] Husband’s written submissions at page 8.

9. If the divorce proceedings had been filed in India, they could have been dealt with following the hearing of the annulment application. This option is still available to the Husband.

10. Given the location of the gold ornaments, and the nature of the Indian proceedings, this Court is a markedly less effective forum in which to deal with the parties’ controversy. If the parties can continue to conduct the Indian proceedings by electronic means, the cost and difficulty in progressing those proceedings should be less than if they were conducted in person.

11. Additionally, with respect to any “legitimate personal or juridical advantage” discussed in The Spiliada, there appears to be no advantage to one party that causes a corresponding disadvantage to the other.[41]

    [41] The Spiliada (n 16), [473] noting, for example, the procedural advantage of limitation periods.

    The order in which proceedings were instituted

12. It is not a determinative factor that the Wife filed her Petition 18 months prior to the Husband’s Application for Divorce. It is however, prima facie vexatious and oppressive to commence a second or subsequent action in the Australian court system if an action with respect to the same matter is pending elsewhere.[42]

    [42] Henry v Henry (n 9), 589.

13. The applications for annulment and divorce are both, in substance, elements of the main point of controversy — the marriage between the parties.

14. The Husband’s Application for Divorce in this Court, filed after the Wife’s Petition for annulment and other orders, does not enliven a right to insist upon the exercise of jurisdiction in Australia.[43] A proceeding regularly invoked does not mean the Husband has a right for proceedings to continue in his selected forum.

    [43] Ibid.

15. The Husband explains that he did not file divorce proceedings in India because of his inability to travel due to COVID-19.[44] It is not suggested that the Husband has filed his Application for Divorce without knowing that the Indian proceedings were filed. He has now participated in the Indian proceedings.

    [44] Husband’s affidavit filed 8 October 2021 at paragraph 1.  

16. The purpose of section 52 of the Act is to prevent the court from making an order for divorce before an application for nullity is determined. The nullity application must be heard first. Section 52 does not apply to this case, however I take into account its purpose when considering whether the divorce proceedings are oppressive or vexatious.

17. By filing his Application for Divorce in Australia, the Husband has prima facie acted oppressively and vexatiously.  This factor assists the Wife’s case.

    The stage at which the proceedings have each reached

18. The Indian proceedings were filed more than 2 years ago. There is no evidence as to when they will be determined.

19. The Husband’s Application for Divorce was filed in September 2020. It is ready to proceed to a final determination. The Husband says that he wants a divorce order so that he can remarry.[45]

    [45] Husband’s affidavit filed 8 October 2020.

20. Although the Wife argues that the marriage will be regarded as “voidable” there is no such finding as of this date and therefore, for the purpose of the existing proceedings, the marriage can be proved.  

21. This factor does not assist the Wife’s case.

    The costs that have been incurred by the parties

22. The Wife says that her costs in the Indian proceedings are $13,220.[46] There is no evidence before the Court as to the Wife’s costs in the Australian proceedings nor the Husband’s costs overall.

    [46] Wife’s written submissions at page 8.

23. The Australian proceedings may be concluded without any significant cost to either party. If the Wife’s annulment proceedings fail, the Husbands Application for Divorce can be dealt with in chambers. There will be ongoing costs associated with the Indian proceedings for both parties, irrespective of the outcome of the Wife’s application for dismissal or stay.

24. This factor does not greatly assist either parties’ case.

    The connection with the parties and their marriage with each of the jurisdictions

25. The “natural forum”, according to Kieth L in The Abidin Daver, is “that with which the action ha[s] the most real and substantial connection”.[47] Australia is, in the circumstances of the matter, not an overwhelmingly appropriate forum in this respect.

    [47] The Abidin Daver [1984] AC 398, 415. Cited with approval in The Spiliada, (n 166) [478].

26. Both parties reside in Australia, and the Wife is an Australian citizen. The marriage was conducted in both India and Australia and the period of cohabitation was equally divided, over 16 days, between the two countries.[48]

    [48] Wife’s affidavit affirmed 12 March 2021, Annexure “C” at pages 4, 6, 14, 18.

27. One of the important events during this short marriage was the use of the Wife’s gold ornaments to secure a loan for the Husband’s visa.[49] This occurred in India and, as previously addressed, the gold ornaments are held in the Indian Family Court.

    [49] Wife’s affidavit affirmed 12 March 2021, Annexure “C” at page 12.

28. It is likely that the relevant witnesses (if any) in relation to the Indian Proceedings are located in India. This includes the Husband’s medical practitioner, who has provided a statement relevant to the annulment proceedings. [50]

    [50] Paragraph 13 of the Wife’s petition in the Indian proceedings – annexure “C” to the Wife’s affidavit of 12/3/2021

29. Consequently, the parties have a greater connection to the Indian jurisdiction.

30. This factor assists the Wife’s case

    The issues on which relief might depend in each of the jurisdictions

31. No issues in the Australian proceedings currently prevent the making of a divorce order, as all requirements of the Act can be met, including that the marriage is proved.

32. The Indian proceedings, including the application for annulment, are yet to be determined. The time at which they will be (or may be expected to be) determined is unknown.

33. The Wife’s evidence in support of her Application for annulment on the basis of the Husband’s insanity is contained in her petition to the Indian Family Court, which is annexed to her affidavit of 12 March 2021 and labelled “C”.

34. The Wife’s action in the Indian Family Court requires her to establish that, at the time of the marriage, the Husband was subject to “recurrent attacks of insanity”.[51]

    [51] Hindu Marriage Act s 5(ii)(c).

35. The Wife’s evidence of the Husband’s mental state,[52] including his alleged delusions, includes observations from after the date of marriage.[53] It is unknown whether the evidence, as it stands in the Indian proceedings, is sufficient for the Indian Family Court to annul the marriage. It may be that the Wife will produce compelling evidence at the final hearing of the annulment proceedings and obtain the relief sought.

    [52] Wife’s affidavit affirmed 12 March 2021, Annexure “C”; the Wife’s Petition to the Indian Family Court did not include any relevant annexures.

    [53] Wife’s affidavit affirmed 12 March 2021, Annexure “C” at paragraphs [10]-[11]. 

36. The Wife’s property and debt actions against the Husband appear ready to proceed. There is no evidence as to the strength or otherwise of her case.

37. This factor does not greatly assist either parties’ case.

    The resources of the parties and their understanding of language enabling the parties to participate in the respective proceedings on an equal footing

38. The parties have participated in the Indian and Australian proceedings. The Indian proceedings are currently being conducted by video and teleconferencing.[54]

    [54] Husband’s written submissions at pages 7, 8.

39. Both parties are able to participate in either proceedings from Australia, and there is no indication that the parties cannot participate in either on an equal footing.

40. This factor does not assist either parties’ case.

    Any others factors within the “general circumstances of the case, taking into account the true nature and full extent of the issues involved”?

41. The general circumstances of the evidence, and the evidence from the parties, do not reveal any other relevant considerations.

    Conclusion

42. This Court has the power to immediately determine the Husband’s Application for Divorce. His Application is in proper form and, save for the forum argument, section 52 does not prevent this Court from making a divorce order. The Indian proceedings, which concern significant property of the parties (including the gold ornaments) located in India, can be dealt with separately from the Australian divorce proceedings. There is no evidence that the Indian proceedings will be affected if the divorce order is made in Australia.

43. The parties conducted part of their marriage in Australia, and both now live in Australia. The Wife is and Australian citizen. The parties and their marriage are also, however, connected to the Indian jurisdiction, as the marriage was solemnised and in part conducted in India. Both parties lived in India when the Wife commenced proceedings in the Indian Family Court.

44. Both jurisdictions are capable of determining the issues before their respective Courts, though there is no evidence as to when the Indian proceedings will reach final determination. The Indian Family Court could also determine an application for divorce, if filed in that Court. The Husband filed divorce proceedings in Australia, in all likelihood, with knowledge of the Wife’s Petition having been filed in India.

45. It is significant, however, that most of those issues with respect to the marriage are before the Indian Family Court. Importantly, that Court currently holds the gold ornaments. While this Court must draw its attention to the inappropriateness of this forum, instead of the comparative appropriateness of the Indian forum,[55] as a matter of practicality the location of the property is noteworthy.

    [55] Voth v Malildra Flour Mills Pty Ltd (n 17), 559.

46. Allowing these Australian proceedings to continue to finalisation could create a situation in which a divorce order is made with respect to a marriage that, at law, is not valid. This outcome is, of course, conceptually problematic, but how does it reach the threshold of creating “serious and unjustified trouble and harassment”?

47. The difficulty is that if this Court makes a divorce order at this time, the parties will be divorced in Australia but not in India. Further, the Indian Family Court’s final decision as to annulment remains outstanding. In my view, if the Indian Family Court had already annulled the marriage, this would likely prevent this Court from making a divorce order.

48. The Husband and this Court are on notice that the Indian Family Court may annul the marriage; a decree this Court will recognise pursuant to section 104(3) of the Act. The marriage will not be recognised as valid in those circumstances, and therefore this Court will have made a divorce order with respect to a marriage that is not valid.

49. A divorce order cannot be rescinded once it has “taken effect”.

50. I am conscious also of section 52 of the Act. While that section does not apply to these proceedings, its purpose is to prevent the serious mischief that could arise if the divorce order is made in circumstances where nullity proceedings have been filed.

51. I am satisfied that a continuation of divorce proceedings in this Court would be oppressive, in the sense of being "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of being "productive of serious and unjustified trouble and harassment".[56]

    [56] Henry v Henry (n 9), 587.

52. The Wife carries the onus of proving that, “having regard to the circumstances of the particular case … the local court is a clearly inappropriate forum for the determination of th[is] dispute”.[57] In my view, and for the reasons stated, the Wife has discharged this onus.

    [57] Voth v Malildra Flour Mills Pty Ltd (n 17), 556.

53. Considering all of the matters set out in these reasons, the Husband’s Application for Divorce should be stayed pending the determination of the Wife’s application for annulment in the Indian Family Court.

54. I therefore decline, at this time, to make an order for divorce. I will not dismiss the proceedings but rather stay them and allow the parties to relist on short notice, once the outcome of the Wife’s application for annulment is known.

I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.

Associate:

Dated:       10 August 2021

 The Spiliada (n 16), [478]..