BORRA & DOSHI - [2020] FCCA 2259

FEDERAL CIRCUIT COURT OF AUSTRALIA

BORRA & DOSHI

[2020] FCCA 2259

Catchwords:
FAMILY LAW – Application for Divorce – Contested Divorce – Wife opposes making of the orders – when separation occurred – matter proceeding on submissions – inability to make findings – whether the marriage has broken down irretrievably – Wife’s failure to file written submissions – divorce granted.

Legislation:

Family Law Act 1975 (Cth), Pt. VI, ss. 39(3), 48, 48(2), 55A(1), 55A(1)(a)

Cases cited:

Clarke & Clarke [1986] FamCA 29

Falk, A.E. and Falk, E.M [1977] FamCA 46

Pavey, T.G. and Pavey, J P [1976] FamCA 36

Price & Underwood [2008] FamCAFC

Todd, R.W. and Todd, Y. D (No. 2) [1976] FamCA 12

Applicant:

MR BORRA

Respondent:

MS DOSHI

File Number:

MLC 11033 of 2019

Judgment of:

Judge Carter

Hearing date:

19 June 2020

Date of Last Submission:

31 July 2020

Delivered at:

Melbourne

Delivered on:

14 August 2020

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Joshi

Solicitors for the Applicant:

Joshi Lawyers

Solicitor Advocate for the Respondent:

Mr Janowski

Solicitors for the Respondent:

Jano Family Lawyers

ORDERS

Upon the Application of MR BORRA a divorce order in relation to the marriage between MR BORRA and MS DOSHI , which was solemnised in 2015, THE COURT FINDS THAT:-
(a)the marriage is proved;
(b)the Husband was at all material times domiciled in Australia; and
(c)the ground for the Application for Divorce order, namely that the marriage has broken down irretrievably, is proved.
THE COURT DECLARES THAT:-
(a)there are no children of the marriage to whom section 55A(3) of the Family Law Act 1975 (Cth) applies.
A divorce order be made, such divorce order to take effect and thereby terminate the marriage on the fifteenth day of September 2020.
The Wife’s Response to Divorce filed on 10 January 2020 be dismissed.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

IT IS NOTED that publication of this judgment under the pseudonym Borra & Doshi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11033 of 2019

MR BORRA

Applicant

And

MS DOSHI

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the Husband’s Application for Divorce, filed on 30 September 2019. The Wife contests that divorce, stating that separation had not occurred as put by the Husband, but the marriage only came to its conclusion when she was served with the Husband’s Application for Divorce on 18 October 2019.

Background

The Husband was born in 1986 and is 33 years old. The Wife was born in 1990 and is 30 years old. Both parties were born in India.
The parties married in 2015 in City B, India. The Wife asserts that the marriage was arranged by the parties’ families.
The Husband appears to have returned to Australia following the wedding and the Wife arrived in Australia on a spousal visa in 2017, citing delay in Australian immigration processes as to…

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 BORRA & DOSHI

Details

AGLC: BORRA & DOSHI [2020] FCCA 2259
Case: [2020] FCCA 2259
Decision Date: 14 August 2020

CaseChat Overview and Summary

In the matter of *Borra & Doshi*, heard by Judge Carter, the husband, Mr Borra, applied for a divorce from his wife, Ms Doshi. The wife opposed the making of the divorce orders, raising a dispute as to when the parties separated. The proceedings were conducted on submissions only, with the court noting an inability to make specific findings of fact.

The central legal issue before the court was whether the marriage had broken down irretrievably, as required by section 48 of the *Family Law Act 1975* (Cth) for a divorce order to be granted. The court also considered the wife's failure to file written submissions in support of her opposition.

Judge Carter found that the marriage was proved and that the husband was at all material times domiciled in Australia. Despite the wife's opposition and the lack of detailed factual findings, the court concluded that the ground for the divorce, namely the irretrievable breakdown of the marriage, was proved. The court noted that no children of the marriage required consideration under section 55A(3) of the Act.

Consequently, the court made a divorce order, to take effect on 15 September 2020, thereby terminating the marriage. The wife's response to the divorce application was dismissed, and all other extant applications were also dismissed, with the matter removed from the court's pending cases list.

Orders

Orders of the court

Upon the Application of MR BORRA a divorce order in relation to the marriage between MR BORRA and MS DOSHI , which was solemnised in 2015, THE COURT FINDS THAT:-

(a) the marriage is proved;

(b) the Husband was at all material times domiciled in Australia; and

THE COURT DECLARES THAT:-

(a) there are no children of the marriage to whom section 55A(3) of the Family Law Act 1975 (Cth) applies.

A divorce order be made, such divorce order to take effect and thereby terminate the marriage on the fifteenth day of September 2020.

The Wife’s Response to Divorce filed on 10 January 2020 be dismissed.

All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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