Butala & Butala
[2021] FedCFamC2F 198
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Butala & Butala [2021] FedCFamC2F 198
File number(s): DGC 1823 of 2021 Judgment of: JUDGE BURCHARDT Date of judgment: 12 October 2021 Catchwords: FAMILY LAW- Divorce application- husband resident in and citizen of Australia- wife and children resident in India and not having residence rights in Australia- wife asserting Australian court not having jurisdiction- wife asserting husband evading criminal proceedings in India- Australia not a clearly inappropriate forum- requirements for divorce are fully satisfied- divorce granted Legislation: Family Law Act1975 (Cth) Cases cited: Henry v Henry [1996] 185 CLR 571
Voth v Manildra Flour Mills Pty. Ltd. & Anor [1990] 171 CLR 538
Division: Division 2 Family Law Number of paragraphs: 11 Date of last submission/s: 12 October 2021 Date of hearing: 12 October 2021 Place: Dandenong Solicitor for the Applicant: The Applicant did not appear Solicitor for the Respondent: Coote Family Lawyers Counsel for the Respondent: Ms Kildea ORDERS
DGC 1823 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BUTALA
Applicant
AND: MS BUTALA
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
12 OCTOBER 2021
THE COURT ORDERS THAT:
1.The wife’s Application in a Case filed 12 August 2021 be treated as an Application to Review of the order of Registrar Dixon made on 7 July 2021 and grant any necessary extension of time to enable that application to be heard.
2.The wife’s said application be dismissed.
3.The husband’s costs of the application be reserved.
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 Butala & Butala has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
In order to put this divorce application in context, I propose to traverse, albeit somewhat broadly, the materials that have been filed. On 6 May 2021, the husband filed a divorce application. It was made by him alone. It confirmed that the marriage of the parties took place on 23 January 2006 in City C, India and asserted a date of separation as 16 February 2017. Reference was also made to proceedings in City C, India in the Indian courts, being an application by the wife for maintenance and an application by the husband in relation to custody of the children. There was no mention of other proceedings in India at that time.
The form declared that there were twins born on 26 May 2005 who were living with the mother, and that the father pays $400 per month to the wife, together with an additional $200 for grocery and $200 for private school fees. An extract from the husband’s Australian passport was annexed, as was the marriage certificate. The next step was on 27 May 2021 when an affidavit of personal service was filed. There is another interceding episode which is not disclosed by the application itself, which is that on 7 July 2021, Registrar Dixon made a divorce order.
On 2 August 2021, the wife filed an application in a case. That discloses a criminal prosecution instigated by the wife in India against the husband. It asserts in strong terms that Australian courts have no jurisdiction and asserted that the husband was evading proceedings in India. In a supporting affidavit filed the same day the wife expressly confirmed receipt of the divorce application. She deposed to not being a resident of Australia or a citizen, and confirmed the Indian proceedings earlier alleged by the husband. She added details of a criminal case she had brought and asserted that the husband was evading this by staying in Australia. She made it very clear and in terms that she did not submit to the jurisdiction of the Australian Court. Having said that and noting the degree of detail in the affidavit, I note that there is nothing to suggest that either the wife or the husband has filed a divorce application in India.
On 7 October 2021, the husband filed a responding affidavit. He deposed to the divorce order made by Registrar Dixon on 7 July 2021. It deposed to the fact that he lives ordinarily in Australia and did so for 12 months before the divorce application was filed. He deposed that he had not included details of the criminal matters as he did not think they were relevant to the divorce application, and he foreshadowed a costs application in the event that he was successful.
As to facts, he deposed that the parties – that is to say, the husband, wife and children – came to Australia in July 2011, but owing to work difficulties experienced in Australia, the wife and children returned to India in January 2012. It deposed to achieving permanent residence on 3 March 2014 and to obtaining citizenship on 26 January 2020. He disclosed that the wife’s application for maintenance was filed in September 2017 in City C, India and his application in relation to the children was filed on 20 April 2017. It would appear that those applications have not progressed with any great speed.
If one turns then to the matters on the outcome sheet, which the Court is required to address, I have, of course, an appearance by Ms Kildea for the husband, and, as earlier indicated, there is no appearance on behalf of the wife. In circumstances where, it seems more probable than not to me, that she has full knowledge of this hearing and a capacity, one would assume, to attend by Microsoft Teams, and given the fact that she has her rights pursuant to whatever rule 16.05 of the former rules has now become, I am quite prepared to hear and determine the matter.
The application was, of course, made by the husband alone and service is quite incontestable. It has certainly been proved. The husband is an Australian citizen. That alone is enough to found jurisdiction in the Court. The marriage has been proved and the ground of irretrievable breakdown of marriage is also proved. However, the matter that does arise in relation to the jurisdiction of the Court is the wife’s application, which I think, albeit her self-representation clouds the matter somewhat, in substance is that the divorce order made should be set aside, and the husband restrained from any further proceedings in Australia on what might be described as forum conveniens grounds.
That, indeed, is what the wife’s application in a case and affidavits say in terms. To paraphrase the substance of what is put, it is asserted that given that the parties married in India, given that she lives in India and has no right to live in Australia and is with the children there, the proper operation of Indian law prescribes that this court has no jurisdiction. The test in relation forum conveniens goes back to the case of Voth v Manildra Flour Mills Pty. Ltd. & Anor [1990] 171 CLR 538, and it is sufficient for these purposes to read from the head note, which records that Mason CJ and Brennan, Deane, Dawson and Gaudron JJ held that, “A defendant will ordinarily be entitled to an order for a stay or dismissal of an action if he persuades the local court that, having regard to the circumstances of the particular case and the availability of a foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the matter, it is a clearly inappropriate forum for the determination of the dispute. The question whether the local court is a clearly inappropriate forum requires attention to be directed to the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum”.
That law was expressly asserted by the High Court, or confirmed by the High Court, more accurately, to apply in matrimonial proceedings in the subsequent High Court case of Henry v Henry [1996] 185 CLR 571. Accordingly, that is the test. Here, the husband is a citizen. He has lived in Australia for most of the marriage. He has no intention of returning to live in India. The proceedings in India do not cover the divorce application, in any event. There is no basis on which I could be persuaded that Australia is in the circumstances clearly an inappropriate forum. To the contrary, given the husband’s citizenship and domicile, it is an entirely appropriate one.
In those circumstances, albeit, as I say, the matter may not have been put in quite these terms, I would not be minded either to refuse to entertain the matter that is before me, or to rescind the orders made by Registrar Dixon. I do propose to treat the wife’s application in a case as an application for review, thus bringing the question of the divorce formalities properly before the Court, which they would not otherwise be. So, that leaves me with just two final matters to deal with. The first is the question of the children. Pursuant to section 55A (1) of the Act, “A divorce order in relation to a marriage does not take effect unless the Court has by order declared that it is satisfied ;
•(b) either that the only children of the marriage who have not attained 18 years of age are the children specified in the order, and that:
•(i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children or;
•(ii) there are circumstances by reason of which the divorce order should take effect even though the Court is not satisfied that such arrangements have been made”.
Here, the children are living with their mother in City C, India. She is paid a total of $800 per month by the husband, which includes their private school fees at D School. On the face of it, I would be minded to be satisfied that there are appropriate arrangements in place. However, the husband is seeking custody of the children, and it necessarily follows that there must be some contest as to whether those arrangements are ultimately wholly appropriate. By reason of that circumstance and no other, I am going to make the order pursuant to section 55A(1)(b)(ii). I am satisfied that in the circumstances it is still appropriate that the divorce order be made. It will become effective in one month. There is no application to the contrary.
I certify that the preceding (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 18 October 2021
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