CARPANI & ARJUNA
[2017] FamCA 580
•4 August 2017
FAMILY COURT OF AUSTRALIA
| CARPANI & ARJUNA | [2017] FamCA 580 |
| FAMILY LAW – PROPERTY – Where the wife commenced proceedings in Australia – Where the husband commenced proceedings in India without notice to the wife – Where the wife sought an anti-suit injunction to prevent the husband from continuing the proceedings in India – Where the husband sought a permanent stay of the wife's proceedings in Australia – Court finds that Australia is not a "clearly inappropriate forum" – Where the wife would suffer considerable inconvenience and incur unnecessary expense if the husband is permitted to continue with the proceedings in India – Court finds that the wife should not be prevented from continuing the proceedings in Australia. |
| Family Law Act 1975 (Cth), s 106A |
| Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 Lederer & Hunt [2007] FamCA 55; (2007) FLC 93-311 Voth v Manildra Flour Mills Pty Ltd and Anor [1990] HCA 55; (1990) 171 CLR 538 |
| APPLICANT: | Ms Carpani |
| RESPONDENT: | Mr Arjuna |
| FILE NUMBER: | SYC | 3055 | of | 2017 |
| DATE DELIVERED: | 4 August 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 14 July 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Kennedy |
| SOLICITOR FOR THE APPLICANT: | Clinch Long Woodbridge |
| COUNSEL FOR THE RESPONDENT: | Mr Foster |
| SOLICITOR FOR THE RESPONDENT: | Harish Prasad & Associates |
Orders
The respondent husband is restrained from taking any further step in connection with the legal proceedings instigated by the respondent husband by his application to the District Court at City B, India in case MC No … commenced on or about 22 March 2017 being a Petition Under Section 13(1)(i-a) of the Hindu Marriage Act seeking:
(a)the granting of a decree of Divorce dissolving the marriage solemnized between the parties on … 2008 at City C and
(b)such other relief, having regard to the facts and circumstances of the case and in the interests of justice and equity.
Pending further order, the husband's application for a permanent stay of proceedings No. SYC3055 of 2017 in the Family Court of Australia is refused.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carpani & Arjuna has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3055 of 2017
| Ms Carpani |
Applicant
And
| Mr Arjuna |
Respondent
REASONS FOR JUDGMENT
The proceedings
Ms Carpani and Mr Arjuna are parties to litigation, arising from the breakdown of their marriage, in both Australia and India. The wife commenced the Australian proceedings by way of an Initiating Application filed on 22 May 2017. She sought the following orders:
1.That by way of property adjustment under section 79 of the Family Law Act 1975 (Cth) the husband shall pay or cause to be paid to the wife the sum of $750,000 within 28 days of the date of the making of an order to this effect.
2.Should the husband fail to make such payment within the said period then he shall forthwith do all acts and things and sign all documents necessary to transfer to the wife all his right title and interest in the following properties free of encumbrances:
2.1Apartment in [City D], India
2.2Apartment in [City E], India; and
2.3Apartment in [City F], India.
3.That in accordance with section 90MT(1)(b) of the Family Law Act 1975, ("the Act"), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of [Mr Arjuna] ("the husband') from his interest in Commonwealth Bank Group Super, [Ms Carpani] ("the wife") is entitled to be paid by the Trustee of Commonwealth Bank Group Super ("the Trustee") 100% of the splittable payment and there shall be a corresponding reduction in the amount the husband would be entitled to receive but for these Orders.
4.That the Trustee of Commonwealth Bank Group Super shall do all such acts and things and sign all such documents as may be necessary to:-
4.1Calculate, in accordance with the requirements of the Act the entitlement awarded to the wife in the immediately preceding clause of this order; and
4.2Pay the entitlement whenever the Trustee makes a splittable payment from the husband's interest in Commonwealth Bank Group Super.
5.That this Order has effect from the operative time and the operative time is four business days after the date of commencement of these Orders.
6.That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 ("the SIS Regulations"), the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife's request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the wife's choosing in accordance with the SIS Regulations.
7.That the Court notes:
7.1The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
7.2Any payments from the husband's superannuation interest in Commonwealth Bank Group Super made after the Trustee has created a new interest in the wife's name are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
8.That in the event that either party refuses or neglects to execute any document or instrument necessary to give effect to all or any of these orders and declarations within 14 days of their obligation to do so then the Registrar of the Family Court of Australia is hereby appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the document or instrument and that the party in default shall pay to the other party that party's costs on an indemnity basis.
9.Such other and further relief as the Court considers just and equitable.
10.That the husband pay the wife's costs of and incidental to this Application.
11.That the wife be granted leave to amend the orders sought above after the husband has complied with his obligations to make a full and frank disclosure of his financial position."
The husband filed a Response to Initiating Application on 20 June 2017. He sought the following orders:
1.That the orders sought by the Applicant Wife be refused on grounds that India is a more appropriate forum for determination of the issues raised by the Applicant Wife.
2.That the Applicant Wife pay the costs of the Respondent Husband of and incidental to these proceedings.
3.In the event that the Court finds that India is not a more appropriate forum then leave be granted to the Respondent Husband to file an Amended Response for Financial/Property Orders.
In February or March 2017 the husband commenced proceedings in a regional court at City B in India. The husband caused documents, including a summons, to be delivered to the wife's parents in India. The wife annexed to her affidavit of 22 May 2017 a translation of this summons by her father, which read as follows:
"Family Court City B
Summons for appearing in the Court
(Order 5 Clause __ of 5)
No of the case – 2/17 Disit – [City B]
Court. Family Court At [City B]
[Mr Arjuna] versus [Ms Carpani]
Ms Carpani wife Mr Arjuna
__ …___, …
A case has been filed against you, therefore you are ordered that you be present in the court on 12/6/17 at 10 am or be represented by a lawyer who knows the case and any other person who can answer questions and can file a reply on your behalf in this case.
You are also informed that if you are not present or not represented in the court in this case then the case can be decided ex parte."
The wife sought an anti-suit injunction to prevent the husband from continuing the proceedings in India. The husband sought a permanent stay of the wife's proceedings in Australia.
Background
The husband and the wife, who are both aged 36, were born in India and are citizens of that country. They married in India according to the rights of the Hindu religion in 2008 and separated finally on 18 September 2016 in Australia. The husband and wife obtained permanent Australian residence in July 2013 and December 2013 respectively.
In October 2016 the parties communicated by email in relation to the forum for finalisation of their "divorce". At this time, both parties lived and worked in Sydney and they continue to do so.
On 20 October 2016 the husband emailed the wife as follows:
I thought it might be time to discuss how to get this divorce finalised. Do you have any suggestions? Else I can try to find out process requirements and get things going.
On 21 October 2016 the wife emailed the husband:
The process simply is a submission of an application form, but it can only be started after 12 months of separation.
Later on 21 October 2016 the husband emailed the wife:
Thanks. Do you have a lawyer? I heard sometimes cases can be expedited, I will find a lawyer when I go to India and ask him/her to talk to yours to see if we can make a case for expedition. What do you think?
On 24 October 2016 the wife emailed the husband:
I have checked and we can do it here as well. Just have to file an application along with a proof of 12 months separation. I would prefer doing it here, since we have the option and more importantly because I don't want to bother my parents with this running around – my dad is not well. I don't see any reason for bothering with expediting the process …
The parties again exchanged emails in relation to "divorce proceedings" in January 2017. On 16 January 2017 the husband emailed the wife:
I have gone through the requirements for divorce proceedings here in Australia and we are now eligible to get this done. It's been over 12 months since we have been living separately (including 8 months in separate rooms in same residence, which is allowed) so we can now proceed.
Can we coordinate to get this process going?
On 23 January 2017 the wife responded to the husband:
I will check out the requirements in detail and get back.
On 31 January 2017 the solicitors for the wife wrote a letter to the husband. This letter invited him to make financial disclosure and commence negotiations for a property settlement. On 14 February 2017 the husband replied:
Thank you for the note. I will seek legal advice and revert back.
On 6 February 2017, within days of receipt of the letter from the wife's solicitors, the husband withdrew $95,000 from his Commonwealth Bank account in Sydney (Exhibit 1). The husband gave no explanation for this withdrawal or the fate of these funds.
Each of the parties holds assets in both India and Australia. The wife deposed that the assets of the parties are as follows:
PROPERTY HUSBAND / WIFE ESIMATED VALUE ASSETS AUD 1. Apartment in [City D], India Husband $300,000 2. Apartment in [City E], India Husband $220,000 3. Apartment in [City F], India Husband $300,000 4. [German motor vehicle] Husband $16,000 5. Motor cycle Husband $30,000 6. Citibank / Commonwealth Bank Account number: …42 Husband $300,000
to $400,0007. [L] Bank, India Husband $120,000 8. Household contents Husband N/K 9. Commonwealth Bank Superannuation Husband $50,000 10. Cash in India (with husband's mother) Husband $120,000 11. Land, [City E], India Wife $10,000 12. Citibank / Commonwealth Bank Account number: …54
Wife
$12,00013. [J] Bank Wife $10,000 14. [K] Bank Wife $7,000 15. Household contents Wife E$1,000 16. Local Government Super Wife $3,693 Total Assets $1,499,693 to
$1,599,693
The husband deposed that the assets of the parties are as follows:
Property Husband/wife Estimated value 1. Apartment in [City E], India Husband $150,000 2. Apartment in [City F], India (50 per cent shareholding)
Husband
$55,0003. [L] Bank account Husband $1,000 4. Household contents and vehicles Husband $8,500 5. CBA bank account Husband $3,500 6. CBA Super Husband $112,865 7. Land, , [City E], India Wife $10,000 8. Citibank / CBA Wife $12,000 9. [J] Bank Wife $10,000 10. [K] Bank Wife $7,000 11. Household Contents Wife $1,000 12. Super Wife $4,000 13. Jewellery Wife $50,000 TOTAL E $424,865 Apart from the above listed properties the applicant holds interest in other real property in India either solely in her own name, or jointly, or potentially by way of inheritance laws of City C & City G ("C&G") as the sole heir to her parents:
Applicant's Property Estimated value 1. [Property 1 City C], India $2,000,000 2. [Property 2, City C], India $400,000 3. [Property 3, City E], India $400,000 4. [Property 4 City H], India $200,000 5. [Property 5, City H], India $2,000,000 TOTAL
E $5,000,000
In response to the properties/assets listed by the applicant under my name, I say:
a. I have no property in my name in [City D], India
b. I have only a 50% share in the property in [City F], India. The other 50% share belongs to my mother.
c. The account in Citibank has no funds and may be closed.
Obviously, it is mere supposition on the part of the husband that the wife will receive the items listed under the heading "Applicant's property". His estimates of value of these supposed assets were without evidentiary basis, as were those submitted by the wife.
It appears that the husband is involved in litigation in India concerning the property in City E (Exhibit 3). There was no evidence as to a likely time for finalisation of those proceedings.
The parties lived in Country M from early 2009 until mid-2013 and then moved to Sydney. As noted above, they both obtained permanent Australian residence in 2013. Each of the parties continues to live and work in Sydney. Essentially, therefore, the parties' cohabitation occurred outside of India.
Evidence
The applicant wife relied on her affidavits sworn on 22 May 2017 and 10 July 2017, together with a Financial Statement of 22 May 2017. The wife also relied on an affidavit of Mr N sworn on 7 July 2017, which annexed a report in relation to the following issues:
1.In the event [Ms Carpani] sought property and spouse maintenance orders in the Family Court of Australia, and the court made such orders, would a court within the Indian jurisdiction recognise the orders made by the Family Court of Australian and/or enforce those orders?
2.If a court in India were to grant the application of [Mr Argawal], as set out above and as contained in the enclosed petition, does that finally determine [Ms Carpani's] rights in India?"
Mr N is a lawyer who practices in City D and who deposed that his work contains "an emphasis on matters dealing with family law and criminal law". The affidavit and report of Mr N conformed with the requirements of Division 15 of the Family Law Rules 2004 (Cth) (the Rules) in relation to expert witnesses.
The husband relied on his affidavits sworn on 20 June 2017 and 10 July 2017. The husband annexed to his first affidavit a document headed "Legal opinion", which was purportedly prepared by his Indian lawyer Mr O. The husband annexed a document entitled "Legal opinion re: Mr Arjuna's matter" to his affidavit of 10 July 2017. This document was also purportedly prepared by Mr O. Neither of these documents was obtained nor submitted in accordance with the requirements of Chapter 15 of the Rules.
Consideration
In Lederer v Hunt [2007] FamCA 55 the Full Court said:
[39] In CSR under the heading "Principles governing stay of proceedings on forum non conveniens grounds and the grant of anti-suit injunctions" (at 389-390) the majority explained that:
the question whether a dispute as to legal rights should be litigated in the courts of one country or those of another is one that permits of resolution, if resolution is possible, by one court staying its proceedings in favour of the other or by it granting an anti-suit injunction restraining a person amenable to its jurisdiction from commencing or continuing proceedings in that other country.
and:
although stay orders and anti-suit injunctions are not governed by the same principles … in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings … and … that, in other cases, the power to grant anti-suit injunctions should not be exercised without the court concerned first considering whether its own proceedings should be stayed.
[40] Their Honours then went on to explain that the test which in this country governs a stay of local proceedings in favour of proceedings in another country is as stated in Voth v Manildra Flour Mills (above), being that "a stay is only to be granted if the Australian court is a clearly inappropriate forum" (at 391).
[41] Having observed "… that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice", their Honours then explained that:
the counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions."
In Voth v Manildra Flour Mills Pty Ltd and Anor [1990] HCA 55 the High Court held that a party who has properly instituted proceedings in Australia has a prima facie right to have those proceedings determined by an Australian court unless Australia is a "clearly inappropriate forum". The High Court held that the mere fact that a tribunal in some other country would be a more appropriate or convenient forum for the particular proceedings does not necessarily mean that the local court is a clearly inappropriate forum.
In Henry v Henry [1996] HCA 51 (“Henry”) the High Court held that the "clearly inappropriate forum" test is to be applied in relation to proceedings in the Family Court of Australia and a foreign jurisdiction. Dawson, Gaudron, McHugh and Gummow JJ said at [25]:
In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be 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". It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, "the discussion by Lord Goff in Spiliada of relevant 'connecting factors' and 'a legitimate personal or juridical advantage' provides valuable assistance". In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being "where the case may be tried 'suitably for the interests of all the parties and for the ends of justice'".
Their Honours considered the matters which might properly be taken into account in this exercise and observed as follows at [39 - 40]:
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. 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.
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.
Is Australia a "clearly inappropriate forum"?
It appears that the courts of both Australia and India have jurisdiction to order a divorce and deal with financial issues arising from the breakdown of the parties' marriage. There was no suggestion to the contrary from either party.
The wife's expert witness, Mr N, opined that orders of the Family Court of Australia would be enforceable in India. He reported as follows:
… I opine that not only does Indian law recognize [Ms Carpani's] right to claim maintenance/spousal support/ property orders from her husband, but the ground on which such right would be founded in Australian law (disparity in income for instance) is also recognized in laws prevailing in India and as such there would be no bar to recognizing such a decree as valid, binding and enforceable in India. Moreover, I state that based on the information and facts provided to me, the parties in the instant matter have been living in and working for gain in Australia for a significant period of time, while the stay in [City B] has been less than two weeks spread out over eight years. The husband is capable of and is in fact contesting proceedings initiated by [Ms Carpani] before the Hon'ble Court in Australia and thus the matter would be covered under the exceptions laid down in Y Narasimha Rao stated herein above and would thus be recognised as valid and binding".
The husband's purported expert, Mr O, took a different view. He opined that an order pursuant to section 106A of the Family Law Act 1975 (Cth) (the Act) would not be "recognised or enforced in India." Mr O opined further:
In view of the fact that the Australian Court will not consider claims as a Family Court in India would, with respect to the law applicable to the parties, in this case the Hindu Marriage Act and the provisions thereunder, such a judgment will in my opinion not be enforceable unless it is passed by consent of both parties."
As noted above, the purported expert evidence of Mr O was not obtained or submitted in accordance with the Rules. For that reason, I am inclined to prefer the expert evidence of Mr N.
The husband's proceedings in India were instituted prior to those of the wife in Australia. Both sets of proceedings are as yet in their early stages and significant costs have not yet been incurred by either party.
In my view, it is significant that the husband commenced the Indian proceedings while he was engaging with the wife and her solicitors in relation to issues arising from the breakdown of the marriage. He elected to provide to the wife and her solicitors no notice whatsoever of his intention to commence the proceedings in India.
Additionally, the husband withdrew $95,000 from his Australian bank account a matter of days after he received correspondence from the wife's solicitor. This letter specifically invited the husband to enter into negotiations for a property settlement. The husband's response was to indicate that he would seek legal advice and reply to this letter. Instead, he commenced proceedings without notice in another jurisdiction.
Nothing in the evidence suggested that India or Australia would be a more effective forum for resolution of all issues in dispute between the parties. At this point, the wife has sought only "preliminary advice" from a lawyer in India and has yet to file any document in those proceedings. The wife in fact has not been served personally with any document filed by the husband in the Indian litigation. On the other hand, both of the parties are fully engaged with lawyers in Australia.
The parties moved to Sydney in 2013, after having spent five years of their marriage in Country M. Since 2013 they have lived and worked in Australia. Some of their assets and their superannuation benefits are located in Australia. Accordingly, it cannot be said that the parties have no substantial connections with Australia.
It would be possible for the parties to obtain valuations of their Indian assets from local experts for use in the Australian proceedings. Notably, the relevant Australian legislation imposes a duty of full and frank financial disclosure upon each of the parties. The Rules make provision for several procedures which enable one party to obtain relevant information from the other in the Family Court of Australia.
It may be that some necessary witnesses will be resident in India but it would be possible that their evidence be taken by telephone or video link in the course of litigation in Australia. The reality is that, in situations of this nature, it is inevitable that a party and/or witnesses will be inconvenienced by the necessity for travel. Both parties would be required to travel to India to participate in the litigation in that country. As noted, however, they both live in Australia and will not be required to travel for the purposes of litigation in this jurisdiction.
The wife deposed that she feels unsafe in the Indian town where the husband elected to commence proceedings. The husband responded to this contention with generalised and unverified information from the internet, which he annexed to his affidavits. I place little or no weight on this material.
On balancing all of these considerations, I conclude that Australia is not a "clearly inappropriate forum".
Should the wife be restrained from continuing the proceedings in Australia?
I consider it is appropriate to take into account the circumstances in which the husband commenced the proceedings in India without notice to the wife. In my view the husband was duplicitous and can reasonably be regarded as having acted out of a perceived self-interest.
The wife commenced the proceedings in Australia in a proper and timely manner, with the husband giving the impression that he intended to resolve the dispute in this jurisdiction. As noted, both parties live and work in Sydney and they have each engaged lawyers in the Australian jurisdiction.
All disputes between the parties are capable of resolution in Australia. Each of the parties has fully engaged with lawyers in Australia and the proceedings will be conducted on a level playing field in this country. The evidence did not establish the range and extent of relief which is available to the wife in the Indian proceedings.
For these reasons, I conclude that the wife should not be prevented from continuing the proceedings in Australia.
Should the husband be restrained from proceeding with the litigation in India?
The wife deposed that she would have difficulty in participating in the proceedings in India. She referred to her limited entitlement to annual leave and the costs of travel and accommodation in City B.
The wife deposed that the town in which the husband elected to commence proceedings is the home of the husband's family and friends. She maintained that she has no family or friends in City B or would feel intimidated and unsafe if she were required to travel and stay there alone.
I am not satisfied that the wife would be in physical danger, if she were to travel to City B to participate in the Indian proceedings. I do accept that she would suffer considerable inconvenience and incur unnecessary expense, if the husband is permitted to continue with the proceedings in India.
In these circumstances, and for these reasons, I will grant the relief sought by the wife
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 4 August 2017.
Associate:
Date: 4 August 2017
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