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
These are Reasons for Judgment in respect of divorce proceedings instituted by the Husband, Mr Bhakta, and opposed by the Wife, Ms Konda.
Overview
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…
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CaseChat Overview and Summary
The court was required to determine whether section 52 of the *Family Law Act 1975* (Cth) prevented the Australian court from making a divorce order, given the pending Indian proceedings concerning the annulment of the marriage. Additionally, the court considered the relevance of section 88D(4) of the *Marriage Act 1961* (Cth) in relation to the recognition of foreign marriages, particularly the distinction between void and voidable marriages, and how these provisions applied to the present circumstances.
Turnbull J reasoned that section 52 of the *Family Law Act* applies to conflicts between competing applications under that Act, which was not the case here. The court noted that an annulment by the Indian Family Court would be recognised in Australia under section 104(3)(d) of the *Family Law Act*, provided the respondent was a national of India at the relevant time. The court also examined section 88D(4) of the *Marriage Act*, which states that a foreign marriage will not be recognised as valid while it is voidable under local law. However, the court found that the Hague Convention, which underpins Part VA of the *Marriage Act*, does not contemplate the concept of "voidable marriages" and limits the grounds for refusing recognition. Furthermore, the court determined that neither party had the standing to seek an annulment in English courts, rendering section 88D(4) inapplicable to the voidable nature of the marriage under local English law, and by extension, not a bar to recognising the Indian marriage as valid.
Ultimately, Turnbull J concluded that the court had the power to grant the divorce order as the application was in proper form and section 52 did not present an impediment. The Indian proceedings, dealing with property and the potential annulment, could be handled separately. While acknowledging the potential conceptual problem of granting a divorce for a marriage that might later be annulled in India, the court found that allowing the Australian divorce proceedings to continue would not, in itself, create "serious and unjustified trouble and harassment." The court indicated that if the Indian Family Court had already annulled the marriage, this would likely prevent the Australian court from making a divorce order, as such an annulment would be recognised under section 104(3) of the *Family Law Act*.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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 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. 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… 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. 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). 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 1991THE 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 IIRECOGNITION OF THE VALIDITY OF MARRIAGESArticle 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.