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Bhakta & Konda

Bhakta & Konda

Case [2023] FedCFamC2F 1180 11 September 2023

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bhakta & Konda [2023] FedCFamC2F 1180

File number(s): PAC 5203 of 2020

Judgment of: JUDGE TURNBULL

Date of judgment: 11 September 2023

Catchwords: FAMILY LAW – DIVORCE PROCEEDINGS – Application for divorce - Whether a divorce can be granted when parties' obtained a divorce in Country J – whether the Country J divorce is recognised in Australia.

Legislation:
Family Law Act 1975 (Cth) ss 48, 55A, 104(3), 104(5), 113.

Hague Convention on Recognition of Divorces, and Legal Separations Sections

Cases cited:
Barriga & Barriga (No 2) [1981] FamCA 75

Dane & Kabrig [2013] FamCAFC 113

Dornom & Dornom [1984] FamCA 40

Indyka v Indyka (1969) AC 33

Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331

Talwar & Sarai [2018] FamCAFC 152

Travers v. Holley (1953) WLR 507

Division: Division 2 Family Law

Number of paragraphs: 33

Date of last submission/s: 5 July 2023

Date of hearing: 5 July 2023

Place: Parramatta

Counsel for the Applicant: Applicant appearing in person

Counsel for the Respondent: The Respondent did not appear
ORDERS

PAC 5203 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BHAKTA

Applicant

AND:
MS KONDA

Respondent

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

11 SEPTEMBER 2023

THE COURT ORDERS AND DECLARES THAT:
1.HAVING NOTED that in 2023, Mr Bhakta and Ms Konda successfully petitioned the Family Court in City C, Country J, pursuant to section 13-B of the Marriage Act 1995, to order a decree for divorce, declaring that their marriage — solemnised in 2018 -— was dissolved, IT IS NOW DECLARED, pursuant to s 113 of the Family law Act 1975, that the decree for divorce made in the Family Court in City C, Country J in 2023 is recognised as valid in Australia pursuant to s 104(5) of the Family Law Act 1975.
2.Save for these orders and declarations, all extant orders made in these proceedings are discharged.
3.All extant applications, including the Husband’s Application for Divorce filed 30 September 2020 and the Wife’s Response filed 12 March 2021, are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview

On 30 September…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bhakta & Konda

Details

AGLC: Bhakta & Konda [2023] FedCFamC2F 1180
Case: [2023] FedCFamC2F 1180
Decision Date: 11 September 2023

CaseChat Overview and Summary

Bhakta & Konda is a case in which the Federal Circuit and Family Court of Australia considered the validity of a divorce obtained by the parties in another country. The applicant, Mr Bhakta, had filed for divorce from the respondent, Ms Konda, and sought recognition of their divorce in Australia. The central issue before the Court was whether the divorce obtained by the parties in Country J could be recognised in Australia, and if so, whether the Court could grant a divorce based on the prior divorce obtained overseas. The Court had to determine whether the divorce obtained in Country J was valid and if it complied with Australian law.

The Court examined the relevant provisions of the Family Law Act 1975 to determine whether the divorce obtained in Country J could be recognised in Australia. The Court noted that section 104(5) of the Family Law Act 1975 provides that a divorce obtained in another country may be recognised if it is valid under the law of that country. The Court also considered the implications of section 113 of the Family Law Act 1975, which allows for the recognition of foreign divorces in Australia. Ultimately, the Court found that the divorce obtained by the parties in Country J was valid and complied with Australian law, and therefore, could be recognised in Australia. The Court also found that the divorce obtained in Country J was sufficient to dissolve the marriage, and therefore, it did not need to grant a divorce in Australia.

In light of its findings, the Court declared that the divorce obtained by the parties in Country J was valid and recognised in Australia. The Court dismissed all other applications made in the proceedings, including the Husband's Application for Divorce and the Wife's Response. The Court's decision was based on its interpretation of the relevant provisions of the Family Law Act 1975 and its finding that the divorce obtained in Country J was valid and complied with Australian law. This case highlights the importance of considering the validity of foreign divorces when determining whether to grant a divorce in Australia.

Orders

Orders of the court

PAC 5203 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR BHAKTA

Applicant

AND:

MS KONDA

Respondent

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

11 SEPTEMBER 2023

THE COURT ORDERS AND DECLARES THAT:

1. HAVING NOTED that in 2023, Mr Bhakta and Ms Konda successfully petitioned the Family Court in City C, Country J, pursuant to section 13-B of the Marriage Act 1995, to order a decree for divorce, declaring that their marriage — solemnised in 2018 -— was dissolved, IT IS NOW DECLARED, pursuant to s 113 of the Family law Act 1975, that the decree for divorce made in the Family Court in City C, Country J in 2023 is recognised as valid in Australia pursuant to s 104(5) of the Family Law Act 1975.

2. Save for these orders and declarations, all extant orders made in these proceedings are discharged.

3. All extant applications, including the Husband’s Application for Divorce filed 30 September 2020 and the Wife’s Response filed 12 March 2021, are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Bhakta & Konda [2023] FedCFamC2F 1180

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Cases cited in this decision · 10 of 10 shown

Talwar & Sarai
[2018] FamCAFC 152 Para 18

…The Full Court in Talwar & Sarai [2018] FamCAFC 152 addressed the issue of whether the Country J Family Court would recognise a divorce order made in Australia. The primary Judge, who after consideration of the Code of Civil Procedure 1908 (Country J) and reference to statutes and authorities submitted to her, conclu…
Wilson v Wilson
[2017] NSWSC 1669 Para 2

…Barblett SJ ultimately concluded that the Husband had a ‘real and substantial connection’ with the State of California to recognise the final judgment of the Superior Court of California. His Honour also identified general limitations to the recognition of foreign decrees of divorce as emerging from…
Neilson v Overseas Projects Corporation of Victoria Ltd
[2005] HCA 54

…s cited: Barriga & Barriga (No 2) [1981] FamCA 75 Dane & Kabrig [2013] FamCAFC 113 Dornom & Dornom [1984] FamCA 40 Indyka v Indyka (1969) AC 33 Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 Talwar & Sarai [2018] FamCAFC 152 Travers v. Holley (1953) WLR 507 Division: Division 2 Family Law Number of paragraphs: 33 Date of last submis…
Dane & Kabrig
[2013] FamCAFC 113

…Hague Convention on Recognition of Divorces, and Legal Separations Sections Cases cited: Barriga & Barriga (No 2) [1981] FamCA 75 Dane & Kabrig [2013] FamCAFC 113 Dornom & Dornom [1984] FamCA 40 Indyka v Indyka (1969) AC 33 Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 Talwar & Sarai [201…
[1981] FAMCA 75
[1981] FAMCA 75 Para 20

…The recognition of a divorce from another jurisdiction was addressed by Baker J in the decision of Barriga & Barriga (No2) [1981] FamCA 75. In that case the parties underwent a civil wedding in Mexico and then later in Australia according to the rites of the Armenian Apostolic Church. Both lived in Argentine prior…
Dornom & Dornom
[1984] FAMCA 40 Para 1

…The recognition of the dissolution of a marriage in another jurisdiction was also addressed by Barblett SJ in Dornom & Dornom [1984] FamCA 40. In that case, the parties to the marriage were born and lived in Australia until the Husband moved to California, USA. The Husband obtained a dissolution of the marriage by…
Le Mesurier v Le Mesurier
(1895) AC 517 Para 2

…Barblett SJ ultimately concluded that the Husband had a ‘real and substantial connection’ with the State of California to recognise the final judgment of the Superior Court of California. His Honour also identified general limitations to the recognition of foreign decrees of divorce as emerging from…
Barblett SJ Quoted Lord Wilberforce in Indyka v Indyka
(1969) AC 33 Para 1

…decree, with the only basis for the validity of the decree being s 104(5) of the Act.[22] Barblett SJ Quoted Lord Wilberforce in Indyka v Indyka (1969) AC 33, 105-106, : In my opinion, it would be in accordance with the developments I have mentioned and with the trend of legislation—mainly our own but also tha…
(1953) 3 WLR 507
(1953) 3 WLR 507 Para 3

…of obtaining the divorce because it was not available to him in Australia? I will deal with the first two factors together. [24] (1953) 3 WLR 507.…
Travers v Holley
(1953) WLR 507

…yka (1969) AC 33 Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 Talwar & Sarai [2018] FamCAFC 152 Travers v. Holley (1953) WLR 507 Division: Division 2 Family Law Number of paragraphs: 33 Date of last submission/s: 5 July 2023 Date of hearing: 5 July 2023 Place: Parramatta Counsel for…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
104(3), 104(5), 113, 48, 48(3), 55A 7 mentions (from Para 2)
Domicile Act 1982 (Cth)
1 mention (from Para 2)
Marriage Act 1955 (NZ)
1 mention (from Para 8)

File number(s):	PAC 5203 of 2020
Judgment of:	JUDGE TURNBULL
Date of judgment:	11 September 2023
Catchwords:	FAMILY LAW – DIVORCE PROCEEDINGS – Application for divorce - Whether a divorce can be granted when parties' obtained a divorce in Country J – whether the Country J divorce is recognised in Australia.
Legislation:	Family Law Act 1975 (Cth) ss 48, 55A, 104(3), 104(5), 113. Hague Convention on Recognition of Divorces, and Legal Separations Sections
Cases cited:	Barriga & Barriga (No 2) [1981] FamCA 75 Dane & Kabrig [2013] FamCAFC 113 Dornom & Dornom [1984] FamCA 40 Indyka v Indyka (1969) AC 33 Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 Talwar & Sarai [2018] FamCAFC 152 Travers v. Holley (1953) WLR 507
Division:	Division 2 Family Law
Number of paragraphs:	33
Date of last submission/s:	5 July 2023
Date of hearing:	5 July 2023
Place:	Parramatta
Counsel for the Applicant:	Applicant appearing in person
Counsel for the Respondent:	The Respondent did not appear

PAC 5203 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BHAKTA Applicant
AND:	MS KONDA Respondent

ORDER MADE BY:	JUDGE TURNBULL
DATE OF ORDER:	11 SEPTEMBER 2023