Bhakta & Konda
[2023] FedCFamC2F 1180
•11 September 2023
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 2020 the Husband, Mr Bhakta (‘the Husband’), filed an Application for Divorce in relation to their marriage solemnised in 2018. The Wife, Ms Konda (‘the Wife’), contested the application — in a Response filed 12 March 2021 — on the basis that Australia was the clearly inappropriate forum to hear the Husband’s application, as she had filed already filed proceedings for an annulment of the marriage in Country J.
On 10 August 2022, following a contested hearing, this Court ordered that the Husband’s Application for Divorce be stayed pending the determination of the Wife’s petition for an annulment filed in a Country J Court in early 2019.[1]
[1] Wife’s application for nullity filed 5 March 2019 pursuant to the Marriages Act 1995.
In early 2022 the parties filed a joint petition — as joint Applicant’s — with the Family Court in City C, Country J, seeking a decree that their marriage be declared as dissolved.[2] The parties went before the Family Court in City C in early 2023 pursuant to section 13-B of the Marriage Act 1995.[3] A short time later, the Country J Court determined that the petitioners were entitled to a decree for divorce and orders were made for the petition to be allowed and their marriage was declared as dissolved effective from early 2023.
[2] The Petition was presented in early 2022, and filed in early 2022.
[3] As evidenced by Exhibit H1 – two documents which evidence that an original petition came before the Family Court in City C in early 23.
The Husband relisted his Application for Divorce before this Court on 5 July 2023.[4] The Husband appeared in person and there was no appearance by or on behalf of the Wife. The matter was adjourned to the 11 September 2023 to allow the Husband time to seek legal advice as to whether the decree made in Country J dissolving the marriage can be recognised as valid in Australia. On 15 August 2023 the Husband filed a Notice of Discontinuance of his Application for Divorce. The Wife’s Response remained on foot it being noted that her application sought that the Husband’s Application for Divorce be dismissed.[5]
[4] Pursuant to paragraph 2 of the order made by this Court on 10 August 2021
[5] Response to Divorce of Ms Konda, filed 2021– section 5 (‘Response’).
The issue for this court is whether or not the decree made in the Family Court in City C, Country J, in 2023, can be recognised as valid in Australia. This is important because the Husband informed the court that he hopes to re-marry in Australia. If the Country J divorce cannot be recognised in Australia, then the Husband may wish to re-enliven his Application for Divorce and seek that his Notice of Discontinuance be dismissed.
Fact / Chronology
Marriage
The Husband is 41 years of age, was born in Town D, Region E in Country J and is a citizen of Country J. The Wife is 36 years of age, was born in Country J and is an Australian citizen.[6] Both parties reside in Australia.[7] The Husband has re-partnered and wishes to remarry his current partner. The Wife’s current relationship status is unknown.
[6] Case outline of Ms Konda, filed 7 June 2021 (‘Wife’s case outline’).
[7] There has been no updated court documents from the Wife to evidence a change of residency – she presumably still resides in Australia.
The Husband and Wife were married in 2018 in G Venue, Town H, Country J.[8] This was an arranged marriage after the parties got to know each other through a match making and marriage website.[9] The Husband was granted an Australian visa in 2018 and moved to Australia in 2018.[10] The Wife was already living and working in Australia at the time of the marriage. The parties separated on a final basis on 14 December 2018.[11] There are no children of the relationship.
[8] Affidavit of Ms Konda, filed 12 march 2021 [2] (‘Wife’s affidavit’).
[9] Affidavit of Mr Bhakta, filed 8 October 2020 (‘Husband’s affidavit’).
[10] Wife’s case outline (n6) p3.
[11] Wife’s affidavit (n8) [3]; Husband’s affidavit (n10).
Wife’s application for annulment
On 5 March 2019 the Wife commenced proceedings in Country J seeking an annulment and return of gold ornaments paid to the Husband as a dowry,[12] relying upon Section 12 of the Marriage Act 1955, which states that ‘The grounds where marriage can be termed as voidable:… If a party has been suffering from repeated attacks of insanity.’[13]
[12] Wife’s affidavit (n8) [7].
[13] Annexure C to affidavit – seeking annulment.
The Husband’s Application for Divorce
On 30 September 2020, and prior to the annulment being dealt with by the Country J Family Court, the Husband filed an application for divorce in Australia. The Wife opposed the Husband’s application on the basis that ‘the proceedings instigated by me for an annulment and compensation were underway in [Country J]’.[14] The Wife’s position was that the Husband’s application for divorce ‘may frustrate proceedings commenced by the wife in [Country J] which are necessary to resolve the issue of financial compensation’.[15]
[14] Wife’s affidavit (n8) [5].
[15] Response (n5).
On 10 August 2021, following a contested hearing, this Court ordered:
That the Husband’s Application for Divorce filed 30 September 2020 be stayed, pending determination of the Wife’s Petition filed 5 March 2019 with respect to annulment under the Marriage Act 1955 (Country J) section 12(1)(b).
Issues for determination
Whether or not the Order made for a divorce in early 2023 in the Family Court in Country J is recognised in Australia under s 104(3) of the Act?
The Family Law Act 1975 (Cth) (‘the Act’) allows for the recognition of divorce or annulment which has been effected in an overseas jurisdiction, in certain circumstances.[16] Recognition under s 104 of the Act is based on the Hague Convention on Recognition of Divorces, and Legal Separations Sections.[17] Section 104(3) of the Act states:
[16] Provided that the marriage is recognised under Australian law. Recognition as valid is where at time of celebration it is valid under the local laws of that country whereby it is celebrated.
[17] Convention on Recognition of Divorces and Legal Separations, concluded 1 June 1970, [1985] ATS 25 (entered into force 24 August 1975 (Austrlaia 23 November 1985)); Belinda Felberg et al, Australian Family Law (Oxford University Press, 2nd ed, 2015) 44.
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:
(a)the respondent was ordinarily resident in the overseas jurisdiction at the relevant date;
(b)the applicant or, in a case referred to in paragraph (b) of the definition of applicantin subsection (1), one of the applicants, was ordinarily resident in the overseas jurisdiction at the relevant date and either:
(i) the ordinary residence of the applicant or of that applicant, as the case may be, had continued for not less than 1 year immediately before the relevant date; or
(ii) the last place of cohabitation of the parties to the marriage was in that jurisdiction;
(c) the applicant or the respondent or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was domiciled in the overseas jurisdiction at the relevant date;
(d) the respondent was a national of the overseas jurisdiction at the relevantdate;
(e) the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was a national of the overseas jurisdiction at the relevant date and either:
(i) the applicant or that applicant, as the case may be, was ordinarily resident in that jurisdiction at that date; or
(ii) the applicant or that applicant, as the case may be, had been ordinarily resident in that jurisdiction for a continuous period of 1 year falling, at least in part, within the period of 2 years immediately before the relevant date; or
(f) the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was a national of, and present in, the overseas jurisdiction at the relevant date and the last place of cohabitation of the parties to the marriage was an overseas jurisdiction the law of which, at the relevant date, did not provide for divorce, the annulment of marriage or the legal separation of the parties to a marriage, as the case may be. (emphasis added)
The most relevant provision to this case is s 104(3)(d) of the Act, which states that the order shall be recognised ‘where the respondent was a national of the overseas jurisdiction at the relevant date’. The Husband explained to the Court that he is a citizen of India and is currently residing in Australia pursuant to a visa. The Wife is an Australian citizen and presumably remains living in Australia.[18] The question arises as to whether the Husband is in fact a ‘respondent’ pursuant to the Act, noting that the Petition for Divorce filed in Country J, and determined in early 2023, identifies the parties as ‘petitioners’.[19]
[18] The Court has no updated evidence of the Wife’s current residency status. Wife’s affidavit (n8) [3], [5], [6]: At the time of the Wife’s application the parties were both residing in Town D, Region E, Country J. The Wife is an Australian citizen with both parties domiciled in Australia and were for the year immediately preceding the Husband’s application.
[19] Exhibit H1: page 1 – at no stage are the parties' referred to as ‘applicants’ or ‘respondents’.
The definition of a ‘Respondent’ is defined in s 104 of the Act which says:
"respondent" , in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means a party to the marriage, not being a party at whose instance the divorce, annulment or legal separation was effected
The parties jointly petitioned for the decree for divorce and therefore were, prima facie, joint ‘applicants’ that is, neither party was a ‘respondent’. As such, s 104(3)(d), does not apply to the present circumstances. The other sub-paragraphs of s 104(3) likewise do not apply, and as such the parties' divorce obtained in Country J will not be recognised in Australia pursuant to s 104(3) of the Act.
Whether common law rules of private international law requires recognition of the parties divorce pursuant to s 104(5) of the Act?
The remaining provision that may apply to give recognition to the parties’ Country J divorce is s104(5) of the Act, which allows for the recognition of divorce subject to the common law rules of private international law:
Any divorce or any annulment of a marriage, or any legal separation of the parties to a marriage, that would be recognised as valid under the common law rules of private international law but to which none of the preceding provisions of this section applies shall be recognised as valid in Australia, and the operation of this subsection shall not be limited by any implication from those provisions.
As stated, Australia is a signatory to the Hague Convention on Recognition of Divorces, and Legal Separations into the provision of the Act.[20] Article 1 of which states:
The present Convention shall apply to the recognition in one Contracting State of divorces and legal separations obtained in another Contracting State which follow judicial or other proceedings officially recognised in that State and which are legally effective there.
The Convention does not apply to findings of fault or to ancillary orders pronounced on the making of a decree of divorce or legal separation; in particular, it does not apply to orders relating to pecuniary obligations or to the custody of children.
[20] Belinda Felberg et al, Australian Family Law (Oxford University Press, 2nd ed, 2015) 44: Embodied in s 104 of the Act. Convention on Recognition of Divorces and Legal Separations (n17).
Country J, however, is not a contracting party to the convention and therefore has no reciprocal arrangement via this instrument of international law. A cursory glance at the Marriages Act does not reveal any obvious clauses relating to the recognition of foreign divorces.
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, concluded that recognition was unlikely. The Full Court however found the primary Judge erred with this approach, stating:
36.Foreign law is a question of fact and must be established by evidence. The immediate effect is that decisions of other judges about the law in other countries have no precedential value. In Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 (“Neilson”), Gummow and Hayne JJ said at 370:
The Courts of Australia are not presumed to have any knowledge of foreign law. Decisions about the content of foreign law create no precedent. That is why foreign law is a question of fact to be proved by expert evidence.
Fortunately, it is not necessary for me to speculate as to whether a divorce order made in this court would be recognised in Country J. In this case, both parties' live in Australia, but have obtained a decree for divorce from the Country J Family Court. The relevant question is therefore, whether their decree for divorce from the Family Court in Country J will be recognised in this country
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 to marriage. The Husband was previously married to woman in Argentine and sought a dissolution of this marriage in México. The law of Argentine allows for the dissolution of marriage in circumstances where there is a death of one party or a decree of annulment.[21] There was no decree of annulment of the marriage between the husband and his former wife and she was still living. His Honour concluded that s 104(3) of the Act did not apply and turned to discuss how s 104(5) of the Act operated in recognising a dissolution or annulment in Australia at [46] – [50]:
46.What effect do the provisions of sec. 104(5) have in relation to the facts before the Court?
47.The latter section provides that a dissolution or an annulment of marriage that would be recognised as valid under the common law rules of private international law but to which sec. 104(3) does not apply shall be recognised as valid in Australia. The section in effect preserves the rules of private international law as they affect the recognition of foreign decrees.
48.In the case of Indyka v. Indyka (1969) 1 A.C. 33, the Court held that a foreign divorce was recognised in England provided there existed a real and substantive connection between the petitioner and the country where the divorce was obtained. The Court in effect said that the dissolution must be genuine and in addition it must be shown that the petitioner did not resort to the jurisdiction for the purpose of the proceedings particularly if a ground were not available in the country of his domicile or residence.
49.It seems clear that the provisions of sec. 104(3) provide examples of most circumstances where it might be said that there exists a certain and specified connection between one of the parties and the country in which the decree was pronounced. There may, however, be some situations in which the principle as expounded in Indyka v. Indyka will operate to confer recognition of a foreign decree outside the confines of sec. 104(3). Such circumstances are not, however, in my view relevant to the facts in the present case.
50.The case of Travers v. Holley (1953) P. 246 is authority for the proposition that an English Court will recognise a foreign decree of dissolution of marriage where the foreign Court assumes jurisdiction in a factual setting which, had the same facts arisen within the forum, would have entitled the forum to exercise jurisdiction to dissolve the marriage. The principle of reciprocity espoused in the latter-mentioned case would suggest, for example, that if a Mexican Court dissolves the marriage of a Mexican citizen there is in effect reciprocity with Australia because an Australian Court has jurisdiction to dissolve the marriage of an Australian citizen. Reciprocity in that context means equivalent facts, not a parallel in the law relating to jurisdiction. (emphasis added)
[21] Barriga & Barriga (No2) [1981] FamCA 75 [30].
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 the Superior Court of California on the grounds of ‘irreconcilable differences which have caused the irremediable breakdown of the marriage’. The Wife filed an application in Australia for a declaration of validity of the Californian Judgment in the Family Court of Australia. The positon of the Wife was that the Court should recognise the Californian 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 that of other countries with similar social systems—to recognise divorces given to wives by the courts of their residence wherever a real and substantial connection is shown between the petitioner and the country, or territory, exercising jurisdiction, I use these expressions so as to enable the courts, who must decide each case, to consider both the length and quality of the residence and to take into account such other factors as nationality which may reinforce the connection. Equally they would enable the courts (as they habitually do without difficulty) to reject residence of passage or residence, to use the descriptive expression of the older cases, resorted to by persons who properly should seek relief here for the purpose of obtaining relief which our courts would not give.
[22] Dornom & Dornom [1984] FamCA 40 [6].
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 the decision of Indyka v Indyka — public policy, natural justice and evasion or fraud.[23] Having found that no question of a denial of natural justice nor fraud applied to the case, Barblett SJ discussed seven issues that are involved in the question of public policy:
1. The comity of the courts of the nations of the world demands recognition of another's decree where the rules of municipal law will allow it. This is particularly so where the foreign country has a similar legal system and comparable procedures. ``Comity'' is defined in The Concise Oxford Dictionary as a ``courtesy of nations, friendly recognition as far as practicable of each other's laws and usages''.
2. The sacred cow of domicile is no longer the yardstick. For so long English courts would only recognise decrees of foreign courts where that country was the domicile of the parties. This rule was gradually eroded by the English courts (Le Mesurier v. Le Mesurier(1895) A.C. 517, Travers v. Holley(1953) P. 246 and Indyka (supra)) and by statute (Recognition of Divorces and Legal Separations Act 1971 (U.K.) and sec. 104, Family Law Act 1975). Section 104(5) of the Family Law Act clearly leaves the door open to Australian courts to continue the erosion. The limits are those set out by Professor Graveson (supra).
3. The existence of ``limping marriages'' or ``unilateral marriages'' (Lord Pearce's term) was described as a ``scandal'' by Lord Penzance in Wilson v. Wilson (1872) L.R. 2 P. & D. 435 at p. 442. More than a century later public policy demands that this scandal be avoided if at all possible. This is particularly so, where both parties have continued to live in separate countries. It is a case of unilateral divorce. The husband has continued to live in California as a single man free to remarry as he well may have done. Can it be that his wife as she is in Australia, or his ex-wife as she is in California, has a different status dependent upon which country she is in? If for eight years this has been the situation, then a ``scandal'' it is.
4. The recognition of the decree cannot offend the mores of the society of the recognising country. At the time the American proceedings were in train Australia was racked with the great Family Law Bill debate. Irretrievable breakdown of marriage based on 12 months' separation was just about to replace a pot-pourri of fault and non-fault grounds as the sole ground for divorce. By the time the American court entered final judgment either the husband or the wife could have obtained the same relief on the same or very similar grounds in Australian courts. In this case the mores of Australian society can be gauged from a statute of its Federal Parliament.
5. Recognition cannot be extended to a decree of the court of a foreign country to which the applicant resorted merely to obtain a dissolution of the marriage. If recognition is to be extended outside the exemptions of sec. 104(3)(a) to (f) within sec 104(5) under the Indyka principle, the residence must be ``bona fide residence'' (see Le Mesurier v. Le Mesurier (supra)). In this case I find that the husband commenced proceedings for divorce in the country in which he was then residing and not that he was residing in a foreign country for the purpose of commencing divorce proceedings.
6. The recognition should no longer be afforded under the Indyka principle to decrees obtained only by wives. The dependent domicile was abolished for divorce purposes by the Family Law Act 1975 and for all Federal purposes by the Domicile Act 1982. The extension of the rules for recognition of foreign decrees is no longer for the sole object of preventing hardship to wives, deserted or otherwise.
7. Public policy dictates that recognition should not be extended to foreign decrees, where discretion is involved, if injustice or substantial hardship would be thus incurred. As I have already said, there are no children of this marriage. There is no matrimonial property. There is no question of spousal maintenance. There is not now, nor has there been, any dispute about ancillary relief. The husband has a divorce; the wife wants one. To recognise the Californian decree would cause no injustice or hardship.
[23] Ibid [12].
Consideration
To determine whether the parties' decree for divorce made early 2023 will be recognised as valid under the common law rules of private international law, I will:
(a)Apply public policy considerations, as they are relevant to the recognition of the parties’ Country J divorce — including that the ‘comity’ or ‘courtesy of nations’ supports the general recognition, as far as practicable, of each other’s laws extending to recognition of divorce orders.
(b)Consider the notion of reciprocity as identified in Travers v Holley[24]— that is, if the same facts and circumstances arose in Australia as they did in Country J, would a divorce have been granted in Australia?
(c)Consider whether there a real and substantive connection between the Husband and Country J — where the divorce was obtained — and whether the decree for divorce was obtained for genuine reasons and not resorted to solely for the purpose 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.
Here the parties mutually obtained a divorce pursuant to s 13B of the Marriage Act. This states:
Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (Emphasis added)
This provision closely aligns with the Family Law Act’s wording, however, with the additional requirement of mutual consent — which is not a prerequisite to the making of a Divorce order under the Family Law Act. For a Divorce Order to be made in Australia, the court must be satisfied that the parties' have lived separately and apart for a continuous period of not less than 12 months from the date immediately preceding the date of the filing of the application for the divorce order[25] and the marriage has broken down irretrievably.[26]
[25] Family Law Act 1975 (Cth) s 48(3) (‘FLA’).
[26] Ibid s 48(1).
In the judgment of that Country J court,[27] determining the parties petition to the court for a decree for divorce, the court found:
6. Point: The evidence let in by the petitioners would show that the petitioners are husband and wife and they are unable to continue the matrimonial relationship as their relationship is irretrievably broken due to difference of opinion. Therefore, both of them had taken a decision to have a decree for divorce. There is no collusion between the parties. On consideration of the evidence on record it is found that the petitioners are entitled to get a decree for divorce as sought for. Point is therefore found in favour of the petitioners.
[27] Exhibit H1: page 3.
The Indian court also recited and accepted the parties' pleadings in support of their petition, noting that the parties' had been:
[R]esiding ‘separately from 14.12.2018 due to difference of opinion. Though several reconciliation efforts were made no positive results could be achieved. The matrimonial relationship is irretrievably broken down. Ultimately they had taken a decision to obtain a divorce by mutual consent.[28]
[28] Exhibit H1: page 2.
If the evidence as detailed in the parties' petition in the Country J court was the evidence in support of an Application for Divorce in Australia, then a Divorce Order would be made. Furthermore, there is no offence to the ‘mores’ of Australian society nor is there any evidence of injustice or hardship towards either the Husband or Wife, if the decree for divorce is recognised as valid in Australia.
I conclude, having regard to public policy considerations and the notion of reciprocity that the decree for divorce made in the Country J court should be recognised as valid in Australia.
As to the third factor listed at paragraph 23 of these Reasons — in Indyka v Indyka,[29] the Court confirmed that it could recognise a foreign divorce provided there existed a real and substantive connection between the petitioner and the country where the divorce was obtained and, that the application is genuine and not resorted to solely for the purpose of the seeking the divorce because it was not available in the country of his domicile or residence. The real and substantive connection between the Husband and Country J is that he is an Country J citizen and was married in Country J. He resides in Australia pursuant to an Australian Visa but currently maintains his Country J citizenship. A divorce was available to him in Country J, as it was in Australia. The parties' also petitioned the Country J court in circumstances where the Wife had proceedings on foot seeking an annulment of the marriage. As a matter of convenience, this made perfect sense. There is no reason to look behind the Husband’s motivations for jointly seeking a divorce in Country J with the Wife, or assume that they were seeking a divorce in a particular forum where it is otherwise not possible to obtain it in their country of residence, being Australia. As stated, there was no bar to either party obtaining a Divorce Order in Australia, in any event.
[29] (1969) 1 A.C. 33.
Conclusion
The Husband has a real and substantial connection to Country J and the parties' were granted a divorce consistent with the laws of that country. It was convenient for the parties' to petition for a decree for divorce in Country J, where the Wife had already filed her application for annulment. The parties' genuinely petitioned for a decree for divorce in Country J — seeking the dissolution of the marriage which was solemnised in that country. The same order could have also been obtained in Australia. Further, having regard to the public policy considerations which arose out of Indyka v Indyka and discussed by Barblett SJ in Dornom & Dornom, recognition of the decree for divorce made in Country J is consistent with the courtesy of nations. The Australian laws allow for recognition of the decree, albeit pursuant to the less clear s 104(5), and no injustice arises from such an outcome. This approach has the additional benefit of ensuring there is no inconsistency in the marital status of the parties' in this country and Country J.
For these reasons, the Husband’s Application for Divorce is unnecessary, as the decree from the Country J Family court issued in early 2023, dissolving the parties' marriage, is recognised as valid under the common law rules of private international law pursuant to s 104(5) of the Act.
Pursuant to s 113 of the Family Law Act 1975 (Cth) I will make a declaration to that effect and otherwise dismiss the Husband’s application for Divorce.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 11 September 2023
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