Borra & Dhawan

In the matter of *Borra & Dhawan*, heard by McNab J of the Federal Circuit Court of Australia, Mr Borra (the Applicant Husband) sought orders for divorce, while Ms Dhawan (the Respondent Wife) sought a stay of the Australian proceedings. The Wife contended that Australia was an inappropriate forum due to pending divorce and maintenance proceedings in India, arguing that she would be deprived of relief and that an Australian divorce order would not be recognised in India.

The central legal issue before the Court was whether Australia was a "clearly inappropriate forum" for the divorce proceedings, necessitating a stay of the Australian application. This required the Court to consider various factors, including the convenience and expense of the proceedings, the parties' ability to participate on an equal footing, the connection of the parties and their marriage to each jurisdiction, the recognition and enforceability of orders, the potential for a complete resolution of the controversy, the stage and costs of the proceedings, the governing law, the parties' residence, and any legitimate juridical advantages.

McNab J applied the principles established in *Voth v Manildra Flour Mills Pty Ltd* and *Henry v Henry*, as well as the non-exhaustive factors outlined in *Obannon & Scarffe*. The Court found that both the Australian Federal Circuit Court and the Indian Court had jurisdiction. While acknowledging the Wife's concerns about the recognition of Australian orders in India and the potential for different outcomes, the Court noted that the Husband had previously initiated and discontinued proceedings in India before commencing the Australian application. The Court also considered that both parties resided in Melbourne at the time of the hearing and could participate on an equal footing in the Australian proceedings, inferring similar capacity for the Indian proceedings. Ultimately, the Court concluded that the circumstances did not justify a stay of the proceedings.

The Court ordered that a divorce be granted, to take effect thirty days from the date of the order. The Wife was directed to provide a copy of the reasons and sealed orders to the Principal Judge of the Family Court in India within 14 days, and to file an affidavit in the Federal Circuit Court deposing to this within 28 days. Upon filing of this affidavit, the proceedings were to be finalised. The Court also declared that proper arrangements had been made for any child of the parties under 18 years of age, pursuant to section 55A of the *Family Law Act 1975* (Cth). No order was made as to the Husband's costs, having regard to the parties' financial positions and the Wife's sole support of the child.