Borra & Dhawan
[2021] FCCA 1977
•26 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Borra & Dhawan [2021] FCCA 1977
File number(s): MLC 8599 of 2020 Judgment of: JUDGE MCNAB Date of judgment: 26 August 2021 Catchwords: FAMILY LAW – divorce proceedings – parties born and married in India – parties are naturalised citizens in Australia – parties reside in Australia – the child of the parties born in Australia – husband returned to India in 2017 and instituted divorce proceedings but later withdrew the application – husband then instituted divorce proceedings in Australia – wife subsequently instituted divorce proceedings in India – wife contends that this court should not entertain the husband’s divorce application – clearly inappropriate forum test – irretrievable breakdown of the marriage – divorce order made Legislation: Family Law Act 1975 (Cth), ss 48, 55A, 117
Hindu Marriage Act 1955
Cases cited: Henry v Henry [1996] HCA 51
Obannon & Scarffe [2021] FamCAFC 33
Sondur Gopal v. Sondur Rajini (2013) 7 SCC 426
Talwar & Sarai [2018] FamCAFC 152
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
Number of paragraphs: 55 Date of hearing: 6 August 2021 Place: Melbourne Counsel for the Applicant: Mr G Singh Solicitor for the Applicant: Saundh Singh & Smith Lawyers The Respondent: Appearing in Person ORDERS
MLC 8599 of 2020 BETWEEN: MR BORRA
Applicant
AND: MS DHAWAN
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1.A divorce be granted in this matter, to take effect thirty (30) days from the date of these orders.
2.The Wife shall provide a copy of these reasons and sealed orders to the Principal Judge, Family Court, Suburb B, City C, within 14 days of the days of the date of these orders and shall file an affidavit in the Federal Circuit Court of Australia deposing to the same within 28 days of the date of these orders.
3.Upon the filing of the affidavit referred to in order 2 herein, the proceedings are to be removed from the list of active pending cases and the matter is to be finalised.
THE COURT DECLARES THAT:
4.Pursuant to section 55A of the Family Law Act 1975 (Cth) the Court is satisfied that proper arrangements have been made in respect of a child of the parties who is under 18 years of age.
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 Borra & Dhawan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge McNab:
OVERVIEW
These are divorce proceedings instituted by the Husband and opposed by the Wife, on the grounds that Australia is clearly the inappropriate forum to hear an application for the dissolution of the parties’ marriage, as there are also divorce and child maintenance proceedings instituted by the Wife in India.
Factual Background
The parties were both born in India and were married there in 2011 by way of an arranged marriage.
Prior to the marriage, the Husband had been living in Australia since 2004, and he was granted permanent residency in 2006 and naturalised citizenship in 2009. The Wife relocated to Australia following the parties’ marriage. The Husband says the Wife started living in Australia in 2012. The Wife disputes this, and says she started living in Australia in 2011. The Court’s decision does not turn on this particular point of dispute.
In 2014, the Wife gave birth to the parties’ daughter.
The Wife became a naturalised citizen in Australia in 2016.
The parties separated on a final basis on 30 August 2017. Since that time, the Husband resided primarily in India, where it is said he was taking care of his mother who was unwell with cancer. The Husband says that he could not undertake work in this period, as he was providing full time care to his mother. The Husband’s mother died in 2019, and subsequently the Husband’s father’s health deteriorated and the Husband remained in India to care for him. The Husband returned to Australia in 2021. During this period the Wife remained in Australia with the child.
On 14 October 2019, whilst in India, the Husband filed an application for divorce in India. The Wife received a summons to attend a hearing in relation to the divorce application in or around November 2019. The Wife says in her affidavit filed on 28 October 2020 that, as she was still residing in Australia at the time, she issued a general power of attorney to her mother to participate in the proceedings on her behalf.
On 4 August 2020, the Husband discontinued his divorce application in India. He then instituted divorce proceedings in Australia on 6 August 2020.
The Husband says that the Wife’s conduct, by allegedly not attending (or having anyone attend on her behalf) at five hearings in the Indian proceedings that variously occurred between February and June 2020, caused an “unending delay and daunting toll on [his] mental and physical health” as the proceedings in India remained unresolved. The Husband says that, for this reason and for various other reasons (as set out at [17] of his affidavit filed on 13 November 2020), he was advised by his lawyers in India that it was not appropriate to initiate proceedings in India, and he therefore withdrew the application in India and instituted proceedings in Australia.
The Wife filed an application for divorce in India on 28 September 2020 and filed a further application for spousal maintenance on 9 October 2020. By way of her affidavit filed on 28 October 2020, the Wife says that complete relief is only available to her in the proceedings initiated in India, and that she would be deprived of spousal and child maintenance if the Husband’s divorce application in Australia was granted. The Wife also says in her affidavit that she was advised by her lawyer in India that a divorce order made in Australia would not be recognised in India: see the Wife’s affidavit filed on 28 October 2020, annexure -8.
Procedural Background
The Husband filed his application for divorce on 6 August 2020. By that application, the Husband indicated that:
(1)the date of separation was 30 August 2017;
(2)he regard the marriage as over as at that date;
(3)since that date, he and Wife have not lived together;
(4)it is not likely he and the Wife will live together again as husband and wife; and
(5)there are no other current pending cases in this Court or any other Court in relation to family law, child support, family violence or child welfare.
The Wife filed her response on 28 October 2020. By that response, the Wife seeks orders that the application for divorce should be stayed as there are proceedings pending in India in relation to divorce and child maintenance, of which the Husband is said to be aware. The Wife says that Australia is clearly an inappropriate forum to determine the dissolution of the parties’ marriage and that the proceedings should therefore be stayed pending the resolution of the proceedings in India.
The matter first came before a Registrar of this Court on 15 December 2020. Orders were made for the filing of further material and for the matter to be adjourned to my docket on 19 May 2021. In those orders the Registrar included the following notations:
A. This matter has been adjourned for hearing on the question of whether the Court is an appropriate forum for the Application for Divorce to be heard. The Applicant Husband filed an Application for Divorce in Australia on 6 August 2020. The Respondent Wife filed a Response on 28 October 2020, objecting to the Court’s jurisdiction on the basis that there are concurrent proceedings in relation to divorce, spousal maintenance and child maintenance in the Family Court in India.
B. The Applicant Husband seeks to place the Respondent Wife on notice that indemnity costs will be sought by the Applicant Husband on the adjourned date.
The matter came before me on 19 May 2021 at 4.00pm, where both parties had Counsel appear on their behalf. Due to the complexity of the matter and the time of day the matter was heard, the matter was adjourned to 6 August 2021 for final hearing, and further orders were made for the filing of material.
The matter returned before me for final hearing on 6 August 2021 and was conducted via Microsoft Teams. The Husband had Counsel appear on his behalf and the Wife was self-represented. Mr D, who is representing the Wife in the proceedings she issued in India, was also present in the Court room. I did not grant him leave to appear on the Wife’s behalf as he is not admitted to practice in Australia, but he was granted leave to appear as a McKenzie friend and made submissions. As is set out below, Mr D purported to file two affidavits as a single expert witness on behalf of the Wife on 18 May 2021 and 3 June 2021. Those affidavits were not admitted into evidence as expert opinion evidence but were instead treated as written submissions filed on behalf of the Wife. At the conclusion of the hearing, judgment was reserved.
KEY ISSUES TO BE DECIDED
The key issues to be determined in this matter are:
(1)the forum issue; and
(2)in event the Court decides that Australia is an appropriate forum to hear the application for divorce, whether or not there has been an “irretrievable breakdown” of the marriage, in 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 filing the application for the divorce order: see s48 of the Family Law Act 1975 (Cth) (“the Family Law Act”).
I note from the outset that the forum issue was the primary issue in this matter, and that there is little dispute as to the requirements of s48 of the Family Law Act.
The Husband seeks orders divorcing the parties. The Wife seeks that the Husband’s application be stayed pending the resolution of proceedings in India.
EVIDENCE RELIED UPON
At the hearing, the Husband relied primarily upon:
(1)his application filed on 6 August 2020;
(2)his affidavit filed on 28 October 2020;
(3)his affidavit filed on 20 April 2021;
(4)a single expert witness affidavit of Mr E filed on 19 July 2021; and
(5)his affidavit filed on 26 July 2021.
At the hearing, the Wife relied primarily upon:
(1)her response filed on 28 October 2020;
(2)her affidavit filed on 28 October 2020;
(3)an affidavit of Mr D filed on 18 May 2021;
(4)an affidavit of Mr D filed on 3 June 2021; and
(5)various evidential material that was filed on 3 August 2021.
CLEARLY INAPPROPRIATE FORUM TEST
It is uncontroversial that a Court is to exercise its powers and jurisdiction as conferred upon it by statute. However, if that Court is a “clearly inappropriate forum” in respect of a particular matter, then the Court must stay the proceedings: see Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 (“Voth”).
The grant of a stay is appropriate where the Australian proceedings are shown to be oppressive, vexatious or an abuse of process: see, for example, Voth at [30]. In Henry v Henry [1996] HCA 51, the majority (Dawson, Gaudron, McHugh and Gummow JJ) stated at [34] – [36], [39] – [40]:
34. 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.
35. 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.
36. 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.
…
39. 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 (50). 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.
40. 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.
In the decision of Talwar & Sarai [2018] FamCAFC 152 (“Talwar”), the Full Court (Ainslie-Wallace, Ryan and Aldridge JJ) stated at [24]:
24. Thus the key issues that the court must consider when a party seeks the stay or dismissal of proceedings on the basis that the court is a clearly inappropriate forum are whether the controversy between the parties is the same in both jurisdictions, whether or not complete relief is available in the local jurisdiction and whether there is nothing to be gained in the overseas proceedings or whether, on the other hand, the overseas proceedings will give rise to additional or other remedies.
Further, in the recent decision of Obannon & Scarffe [2021] FamCAFC 33, the Full Court (Kent, Watts & Austin JJ) stated at [101]:
101. Whether or not Australia is a clearly inappropriate forum depends on an assessment of the following non-exhaustive factors (derived from Lord Goth’s factors in Spiliada) as approved of in Voth and as added to by Henry (at 592–593):
a) Factors of convenience and expense, such as the location of witnesses;
b) Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing;
c) The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;
d) Whether the other potential forum will recognise Australian orders and vice-versa and the ease of enforcement in each country;
e) Which forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy;
f) The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;
g) The governing law of the dispute;
h) The place of residence of the parties;
i) The availability of an alternative forum; and
j) Any legitimate juridical advantage to litigating in either jurisdiction.
CONSIDERATION
Clearly Inappropriate Forum Test
It is uncontroversial that both the Indian Court in which the Wife filed her application and the Federal Circuit Court have the jurisdiction and power to hear matters, and therefore make orders, in respect of divorce proceedings. The divorce proceedings between these parties have a connection to the jurisdiction of both countries.
Whilst the Husband instituted proceedings in India in 2019, he subsequently discontinued those proceedings and almost immediately instituted proceedings in Australia in August 2020. The Wife then filed proceedings in India in September 2020.
It can be inferred that both parties have incurred costs in the Australian proceedings, as both parties have engaged Solicitors and Counsel at some point during these proceedings. Whilst there is no evidence before the Court, it can also be inferred that both parties have incurred costs in the Indian proceedings as well, as the Wife has filed separate divorce and child maintenance applications, and the Husband would have had to file a response (or the equivalent of a response) in those proceedings.
As at the time of the final hearing in this matter, both parties could participate on an even footing in the Australian proceedings, as both are currently residing in Melbourne, Australia, and had the capacity to attend the final hearing in person (although this was ultimately not possible due to COVID-19). In respect of the proceedings in India, whilst there is no evidence as to the procedures and protocols of appearing before a Court in India, it can be inferred that both parties can also likely participate in those proceedings on an even footing, in that both parties would be required to appear in Court in the same manner (likely by virtual means).
As to whether an Australia divorce order would, or would not, be recognised in India, is disputed and the parties filed competing expert witness evidence in respect of that issue.
Whilst I will not set out all of the expert evidence, by way of letter attached to an affidavit filed on 19 July 2021, Mr E, who provided evidence as an expert legal witness on behalf of the Husband, states at what is page 8 of his letter that, on the basis of a body of Indian case law:
Since both, the parties are ordinarily residing in Australia and are the citizens of Australia, the respondent-wife ought to have filed maintenance petition in the Federal Circuit Court of Australia in terms of the observations made by the Hon’ble Delhi High Court in ‘Rakhee Bahl v/s Pankaj Bahl’ supra. Undoubtedly, the Federal Circuit Court in Australia’s jurisdiction overrides the jurisdiction of Indian courts, if any, for the determination of divorce and maintenance issues. Thus, the parties to the instant case being citizens of Australia need to sort out their matrimonial disputes before the Federal Circuit Court in Australia as the Indian Courts cannot be the forum convenient to the parties. Moreover, enforcement of orders passed by the Courts in India, when the parties; their daughter, are based in Australia, would be a practical impossible.
[…] I believe that the Federal Circuit Court Melbourne is the right forum and the proceedings initiated by the wife in India seem to be a fishing expedition and vexatious.
Further, at what is page 11 of the judgment:
…after considering the facts of the case and referring various case laws on the subject, I believe the restrictions as to grounds for divorce to the Hindu Marriage Act, 1955, do not preclude an Australia court from granting a divorce to parties where one of them was domiciled in Australia. As such the present Divorce application is maintainable before the Federal Circuit Court in Australia.
As noted before, the Wife filed an affidavit of Mr D on 18 May 2021 which included a letter as exhibit A. That affidavit and letter were treated as submissions. Mr D states at [3] of the letter:
3. That as per Indian law, the Foreign Courts have no jurisdiction entertain and decide the matrimonial issue between two Indians/Hindus who solemnized their marriage as per Hindu Law of India. As such foreign court have no jurisdiction to entertain and decide Divorce proceedings between the parties of the present case…
Mr D states at [5] that the Wife “…has already filed a divorce petition under Section 13 of [the] Hindu Act, 1955 against [the Husband]….As such during the pendency of the said petition this hon’ble court cannot grant [a] divorce to the applicant [Husband].” Mr D also notes at [6] that the Wife has filed a Suit for Permanent Injunction restraining the Husband from pursuing his application in Australia. The Husband is said to have been issued a notice to appear in respect of those proceedings on 19 August 2021.
Neither Mr E nor Mr D were called to be cross-examined at the final hearing.
At the final hearing, the Wife relied on an Indian case that is also relied on by the Husband in his material, the case being Sondur Gopal v. Sondur Rajini (2013) 7 SCC 426 (also known by Civil Appeal No. 4629 of 2005) (“Gopal v. Rajini”). An English version of that case is annexure 5 to the affidavit of Mr E. In that decision, the Supreme Court of India (per C.K Prasad J) stated, at what is page 16 of the judgment:
Bearing in mind the principle aforesaid, when we consider Section 1(2) of the [Hindu Marriage] Act, it is evident that the act extends to the Hindus of whole of India except the State of Jammu and Kashmir and also applies to Hindus domiciled in India, who are outside the said territory. In short, the Act, in our opinion, will apply to Hindus domiciled in India even if they reside outside India. If the requirement of domicile in India omitted altogether the Act shall have no nexus with India which shall render the Act vulnerable on the ground that extra-territorial operation has no nexus with India. In our opinion, this extra-territorial operation of law is saved not because of nexus with Hindus but Hindus domiciled in India.
(Emphasis added)
The Wife relied on this case to the extent that it was submitted:
(1)the parties solemnised their marriage in India;
(2)the Husband has been living in India since mid-2017;
(3)the Husband allegedly, upon relocating to India post-separation, knowingly transferred all of the matrimonial assets for Australia to India, and now has a financial interest in a real estate business and a liquor business in India: see annexure -1.
In that context, the Wife contended that the Husband is domiciled in India and therefore the provisions of the Hindu Marriage Act, 1955 continue to apply the parties’ marriage. For those reasons and on the basis of the submissions filed by her, the Wife says that Australian courts do not have the jurisdiction to determine the matrimonial issues of parties who solemnised their marriage pursuant to the Hindu Marriage Act (and to whose marriage the provisions of the Hindu Marriage Act still apply) and, therefore, Australia is clearly an inappropriate forum for the determination of the dissolution of the parties’ marriage.
However, the factual background in this case is distinguishable from that in Gopal v. Rajini.
In that case, the Supreme Court of India found that there was no evidence to support the Husband’s claim of being domiciled in Australia. The fact that the parties in that case only had an 18-month tenancy agreement in Australia and that the parties had not acquired Australian citizenship was said to make it difficult to accept that the parties intended to reside permanently in Australia.
Relevant to the determination of where a party is domiciled in relation to the application of the Hindu Marriage Act, the Supreme Court of India stated in Gopal v. Rajini, at what is page
27 – 28, that:
…Domiciles are of three kinds, viz domicile of origin, the domicile by operation of law, and the domicile of choice…
Domicile of origin prevails until not only another domicile is acquired but it must manifest intention of abandoning the domicile of origin. …
The right to change the domicile of birth is available to any person not legally dependent and such a person can acquire domicile of choice. It is done by residing in the country of choice with intention of continuing to reside there indefinitely. Unless proved, there is presumption against the change of domicile. Therefore, the person who alleges it has to prove that. Intention is always lodged in the mind, which can be inferred from any act, event or circumstance in the life of such person. Residence, for a long period, is an evidence of such an intention so also the change of nationality.
(Emphasis added)
In this case, as set out above, the Husband has been living in Australia since 2004, was granted permanent residency in 2006 and became a naturalised citizen in 2009. The Husband gave evidence that he returned to India in 2017 to care for his ill mother, and subsequently his ill father. He was also restricted from returning to Australia due to COVID-19. Despite this, the Husband returned to Australia in June 2021. By his affidavit filed on 26 July 2021, the Husband says that he intends to live in Victoria for the rest of his life, is looking forward to completing his education and working, and will be organising for his father to live with him in Australia. On that basis the Husband submits that he was not domiciled in India, despite the length of time that he spent there, and is instead domiciled in Australia.
Further, and more importantly, whilst the parties were married in India in 2011, the Wife soon thereafter migrated to Australia to live with the Husband, and both parties have resided in Australia for a significant period of time. Both parties currently reside in Australia and are both citizens of Australia, as is the parties’ daughter. The Wife holds an Australian passport, has continued to reside in Australia since separation and receives monies from Centrelink. There is no evidence to suggest that the Wife has considered, or is considering, returning to live in India. For these reasons, there is no indication in the evidence that either of the parties will return to live or indeed ‘domicile’ in India and can be said to instead be domiciled in Australia.
As the applicant for a stay, the Wife bears the onus of establishing that Australia is clearly an inappropriate forum to determine the dissolution of the parties’ marriage. On the basis of the evidence above and in all the circumstances of the matter, the Court is not satisfied that Australia is a clearly inappropriate forum, based on the principles set out in Voth and the other cases, as set out above. For these reasons, the Court must now determine the Husband’s divorce application in accordance with the provisions of the Family Law Act. I note that there is no impediment to the Wife filing an application for spousal maintenance in Australia.
Has the marriage broken down irretrievably?
As set out above, s48 of the Family Law Act requires that spouses be separated for a continuous period of at least twelve (12) months preceding the filing of a divorce application. In this case, that requirement is easily met and is not in dispute.
The parties did not put on any evidence, or make any submission, that there is any reasonable likelihood of cohabitation, or their relationship, being resumed.
Arrangements for the parties’ daughter
Where parties have a child or children under 18 years of age, s55A(1) of the Family Law Act provides that a divorce order does not take effect unless the Court declares that it is satisfied that:
(1)proper arrangements in all the circumstances have been made for the care, welfare and development of the child or children; or
(2)there are circumstances by reason of which the divorce order should take effect even though the Court is not satisfied that such proper arrangements have been made.
The parties’ daughter is now seven years old. The Wife gives evidence that she has been solely responsible for the care of the child since the Husband returned to India in 2017.
By way of her affidavit filed on 28 October 2020, the Wife gives evidence that, in December 2017, she filed an application with Centrelink for child support to be paid by the Applicant. The amount assessed annually by Centrelink was $420. Further, by way of her affidavit filed on 2 June 2021, the Wife gives evidence that the Husband has not paid child support, save for a few hundred dollars that he paid to the Wife in recent months. The Husband denies this allegation and, by way of his affidavit filed on 26 July 2021, deposes to having paid all monies owed to Centrelink in respect of child support payments, and he annexes a copy of a Child Support Australia statement reflecting the account balance: see annexure H-10. That statement indicates that, as at 7 July 2021, the closing balance was $36.21. This is all in circumstances where the Wife’s income is by receipt of a pension from Centrelink.
The Wife makes allegations of family violence against the Husband in her written material, including abusive and coercive control behaviours which, if found to be true, would be a relevant consideration in terms of the child’s care, welfare and development. However, those allegations are untested.
Despite these concerning allegations, at final hearing, the Wife indicated that there are proper arrangements in place for the care of the child. In effect, the Wife informed the Court that she has the care of the child and that she has sufficient funds to continue to care for the child. It was also submitted on behalf of the Husband that he would contribute $250 per month to assist with the costs of raising the child. Counsel for the Husband also referred to evidence from the Wife’s bank statements that she has savings of $26,956.
On that basis, the Court is satisfied that there are proper arrangements in place in place for the care and welfare of the child and therefore the divorce order should be made and take effect.
COSTS
As was set out in the notation to the orders made by the Registrar on 15 December 2020, the Husband raised an application for his costs of the proceedings at the final hearing.
Pursuant to s117(1) of the Family Law Act, the presumption is that each party commenced under to the Family Law Act, is to bear their own costs, subject to s117(2). Subsection 117(2) of the Family Law Act provides:
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
I am of the view that the circumstances in this matter do not justify making an order as to the Husband’s costs. Whilst the Husband has been successful in the proceedings, I have regard to the financial positions of the parties and the fact that the Wife has hitherto supported the child on her own.
CONCLUSION
For these reasons I will grant the Husband’s application for a divorce order, and the Court makes the orders set out above.
I will also make an order that the Wife provide a copy of these reasons and orders to the Court in India dealing with the proceedings instituted there by the Wife, as I am of the view that it is in the interests of transparency and judicial comity to do so.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 26 August 2021
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