Chanda & Goel
[2021] FCCA 1824
•21 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Chanda & Goel [2021] FCCA 1824
File number(s): MLC 12118 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 21 July 2021 Catchwords: FAMILY LAW – Divorce – husband applying for divorce in circumstances where husband and wife live in Australia, have been separated for over a year and have no children – prior application for divorce lodged by wife in India 3 weeks before husband’s application in Australia – wife seeking dismissal of husband’s Australian application or alternatively adjournment until end of proceedings in India – further criminal proceedings in India against husband and husband’s parents under way – consideration of whether Australian proceedings vexatious in the Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 sense – wife not identifying with sufficient clarity what the effect of divorce in Australia would be on Indian proceedings – Australia not a clearly inappropriate forum – divorce granted. Cases cited: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Henry v Henry (1996) 185 CLR 571
Talwar & Sarai [2018] FamCAFC 152
Obannon & Scarffe [2021] FamCAFC 33
Number of paragraphs: 52 Date of last submission/s: 20 July 2021 Date of hearing: 20 July 2021 Place: Dandenong Counsel for the Applicant: Mr Devries Solicitor for the Applicant: Tonkin Legal Group Counsel for the Respondent: Mr Robertson Solicitor for the Respondent: Armstrong Legal ORDERS
MLC 12118 of 2020 BETWEEN: MR CHANDA
Applicant
AND: MS GOEL
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
21 JULY 2021
THE COURT ORDERS THAT:
1.The application of the wife to dismiss the husband’s divorce application or alternatively to stay same is dismissed.
2.There be a divorce order in the usual terms.
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 Chanda & Goel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Revised from transcriptJUDGE BURCHARDT
By way of introduction, on 6 November 2020, the applicant husband applied for a divorce. The conditions that are required to be met for the grant of divorce were prima facie met in as much as the parties were residents in Australia, the wife was a citizen, the husband a permanent resident. They had been separated for more than a year and had no children. However, on 22 February 2021, the wife filed a response. She seeks the dismissal of the application or in the alternative, that the application for divorce be adjourned until proceedings underway in India have been resolved. In substance, it is something akin to an anti-suit injunction. It is also, in substance, interlocutory. And on that footing, there has been no cross-examination of witnesses. The parties had evinced some intention or desire to cross-examine witnesses in India, but this would have been impracticable in any event, given the current COVID-19 difficulties, I suspect.
I turn now to deal with the applicable law. There is, of course, much authority that applies in this area. I am, of course, aware of the decisions of the High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 and Henry v Henry (1996) 185 CLR 571 the latter of which effectively expanded the operation of the prior decision in Voth to Family Law matters. And the test put shortly, is whether Australia is a clearly inappropriate forum. I would, however, quote some extracts from judgments that touch upon the matter. And the first is that of Talwar & Sarai [2018] FamCAFC 152. The relevant facts are worth recording before coming on to what was actually determined because they inform, perhaps in part, the way the Court went about the matter. At paragraphs [4]-[11], the following history is set out,
4.The parties are Indian nationals by birth, but the husband has lived in Australia for a number of years and is an Australian citizen.
5.In 2013 while the husband was visiting India, the parties met and arranged to marry. He returned to India in 2013 and later that month the parties were married in City B under the Hindu Marriage Act 1955 (India) (“the Hindu Marriage Act”).
6.The husband returned to Australia in 2013. That month, the wife completed an application for a partner visa so that she could join the husband in Australia.
7.In 2013 the husband wrote to the Department of Immigration and Border Protection (“the Department”) to withdraw his sponsorship of the wife’s partner visa. The husband contends that this is the date on which the parties separated.
8.The wife arrived in Australia in 2014, apparently in an effort to reconcile with the husband (at [35]). She attempted to locate the husband and was initially unsuccessful. Upon locating the husband and on visiting his home, the wife was not allowed to enter his property and was told to “go away”.
9.She subsequently became aware, in 2014, that the husband had contacted the Department for the cancellation of her partner visa and that she was required to leave Australia. The wife returned to India in 2014.
10.A number of proceedings have subsequently been instituted against the husband and his family in India. In 2015 the wife’s father made a criminal complaint with the police, alleging criminal breach of trust, cheating and that the husband and his family had unlawfully demanded a dowry from the wife’s family. Criminal charges pursuant to ss 34, 406, 420 and 498A of the Indian Penal Code 1860 (India) were brought sometime thereafter. Proceedings were also commenced against the husband and his family under the Dowry Prohibition Act 1961 (India) (“the Dowry Prohibition Act”). In those proceedings the wife asserts, amongst other things, that the husband and his family have unlawfully demanded a dowry from her and her family and have unlawfully retained gifts that were provided upon marriage. The wife has also filed a complaint against the husband under the Protection of Women from Domestic Violence Act 2005 (India) (“the Protection of Women Act”). None has been concluded.
11.The husband filed an Application for Divorce in the Federal Circuit Court of Australia on 10 March 2017. Although the wife was served with the application, she did not file a Response within the prescribed time limit (r 25.10, Federal Circuit Court Rules 2001 (Cth)).
I note that at paragraph 16 of the judgment, the Full Court noted that on 27 May 2017, the principal Judge of the Family Court in City B made an injunction restraining the husband from continuing his proceedings in Australia. There are a number of extracts in the decision which I will now refer to. At paragraphs [19]-[20], the Full Court said,
19.It is convenient first to set out the principles that apply to proceedings between the parties in different courts. If the court is satisfied that Australia is a clearly inappropriate forum in which to determine the proceedings, the court must stay them (Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 (“Oceanic”) at 247 – 248; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”) at 564; Henry v Henry (1996) 185 CLR 571 (“Henry”)).
20.It will do so if it is satisfied that those proceedings are “oppressive” or “vexatious” or an “abuse of process”.
At paragraph [21], the Court continued:
21.In addition to the inherent power to protect its own proceedings, a court may exercise its equitable jurisdiction to restrain unconscionable conduct or the unconscientious exercise of legal rights. The majority in CSR said at 393 – 394:
One well established category of case in which an injunction may be granted in the exercise of equitable jurisdiction is that involving proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive. Thus, it was said in Carron Iron Co v Maclaren that “[w]here [there is] … pending a litigation here, in which complete relief may be had, [and] a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings”.
In Société Aerospatiale, the Privy Council emphasised that the various cases decided in the nineteenth century with respect to vexation and oppression, including Peruvian Guano Co v Bockwoldt, have continuing significance for the grant of anti-suit injunctions. Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression. In particular, Peruvian Guano establishes that “double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]” does not amount to vexation or oppression.
More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Co, if “complete relief” is available in the local proceedings
At paragraph [23] the Full Court quoted certain extracts from the judgment of the majority in Henry at 590 to 591 of which the following are relevant,
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.
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.
At paragraphs [26], the Full Court quoted again from Henry at 592 to 593 and the relevant parts are as follows,
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.
27.It is important to note that this is not a balancing exercise. The majority in Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 said at 520 – 521:
It was not a question of striking a balance between competing considerations. Rather, it was the task of the Renault companies as applicants on the motion to demonstrate that a trial in New South Wales would be productive of injustice, because it 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.
That concludes for the moment the extracts from that case. I turn now to the other decision from which I propose to quote, namely, Obannon & Scarffe [2021] FamCAFC 33. In that case at [101] the Full Court said as follows,
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 CLR 592–3; ALR 580–1; Fam LR 187–8):
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.
Then at [104] the Full Court continued:
In `Navarro v Jurado Thackray J observed:
29..… The plurality in Voth, at CLR 559; ALR 137, and the majority in Puttick, at [27], emphasised that the focus must be “upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum”. Thus the plurality in Voth (at CLR 558; ALR 136) and the majority in Henry (at footnote 68) stressed that Australian courts should not concern themselves with “an assessment of the comparative procedural or other claims of the foreign forum”.
So much, at least for the moment for the authorities. The husband’s application was filed, as I said, on 6 November 2020. And I propose to go through the parties’ material in some detail. On page 2 of that application, he ticked the box in which indicated he regards Australia as his home. He ticked the box that the wife was a citizen. He ticked the box that the husband and wife had lived in Australia for 12 months before the application. He gave details of the marriage in 2016 at City C and separation on 28 October 2019.
The response of the wife was filed, as I indicated, on 26 February 2021 and I propose to read out the relevant parts. I will omit the paragraph numbers.
The Applicant Husband, Mr Chanda and I were married in 2016 in City C, India. I went overseas on or about 28 February 2019 and became aware of our final separation thereabouts of a week later.
On 16 October 2020 I initiated divorce proceedings pursuant to Section 10 of the Divorce Act 1869, India in the Family Court of City C, India, naming the husband as the respondent.
As part of the Indian proceedings, I have sought a divorce, on the basis of dowry harassment by the husband. I seek further relief, including return of dowry, jewellery and money from the husband. The Family Court of City C, India, has jurisdiction to hear and determine my claims for relief.
I say that the assets (namely, the dowry, jewellery and money), subject to Indian proceedings and my claim for relief, are located in India.
The Indian proceedings are next listed before the Family Court of City C on 8 April 2021.
The Applicant Husband filed the application for divorce with this Honourable Court on 6 November 2020, subsequent to the Indian proceedings being commenced by me.
I say that the orders sought by the husband in his Application for Divorce, namely, a Divorce Order, is available and sought by me in the Indian Proceedings.
As a result of my dowry and harassment claims against the husband, criminal investigations and proceedings have been commenced against him by Police in City C.
In correspondence to City C Police, dated 19 January 2021, the Husband has sought to rely on his application for divorce, filed with this Honourable Court in support of his request that the criminal matters be dismissed, seeking that the Police “kindly quash the inquiry report.”
and she appended a copy:
I say that the Indian Proceedings that I have commenced referred to above in this my affidavit have the potential to provide me remedies and compensation, additional to, and other than remedies available through his Honourable Court. I also say that any determination by –
and obviously, part of the text has been lost, in turning over of the page, because it continues:
…upon the Indian Proceedings, and therefore should the husband’s Application be granted, it would be prejudicial to the conduct of the proceedings initiated by me in India.
I further say that the Husband is seeking to rely on the Divorce proceedings before this Honourable Court, to contest the criminal proceedings against him currently under investigation in India. Should the Husband be permitted to proceed with his Application for Divorce before this Honourable Court, I say that my criminal complaint will be prejudiced.
For all of the above reasons set out above, I humbly seek the court make the orders set out in my response.
I should indicate that, although paragraph 10 is incomplete, there is nothing in what there
is in the text to indicate what the additional remedies there might be in India, to which references were made. Now, 2 is the petition actually lodged in India on 16 October 2020. It was filed by the wife’s father, under a power of attorney. It gives the wife’s residence as being in City C, but at present, Suburb D. It gives the husband’s address in City E in Suburb F, and gives an alternative address in Melbourne, which is the husband’s employment, it would seem. The petition, on its face, is made pursuant to section 10 of the Divorce Act, 1869.
The narrative – and that is a fair way to describe the document, I think – prepared in support of the petition, or, perhaps, constituting it, appears to refer to wedding expenses, which would translate into Australian dollars of about $15,000 to $20,000, the wife having spent $50,000, including $7,000 on the husband’s visa. There are allegations of harassment, in respect of dowry matters and the obtaining of a visa for the husband to come to Australia, and at paragraph 10, I note that the wife’s jewellery was taken from the wife’s house in Australia. It is then asserted that the dowry is with the husband’s parents, but it is not clear whether any of those are said to be in India.
The times of alleged residence of the parties in City E are not easy to discern from the document, or indeed, it is possible, in City C either. But it does seem clear that it is asserted, and it does not, perhaps, seem in dispute that the parties came to Australia in 2016. The petition also refers to taunts made against the wife, as being a former divorcee, and that the husband got permanent residence through the wife, but that there was no co-habitation in Australia. The wife is asserted to have left for India on 29 October 2019, and at paragraph 25, which is I think, concluding paragraph of the document, it is prayed as follows:
…That in view of the above, it is therefore prayed that the marriage of the parties may please be dissolved by passing a decree of Divorce in the interest of justice.
3 is a letter sent by the husband to the police in City C. I propose to read it out. It is dated 19 January 2021, and it is to what I presume is deputy, superintendent of police, HQ, in City C:
Dear Sir,
This is in regards to your letter, number … dated 14/02/2021. I hereby inform you (Ms Goel) father Goel, Mr G, has filed 1 other complaint, No … dated 30/01/2020 of which the inquiry has been completed by Superintendent of Police HQ, City C. Enquiry report is attached in this letter.
1. I hereby inform you Ms Goel lives in Australia and is an Australian citizen by grant (file number given)
2. The divorce suit of marriage between me and Ms Goel is pending as per the Australian jurisdiction signed application signed by both parties attached –
and he gives the number. I will pause and interpolate there, just to say that insofar as it was said that the divorce application was signed by both parties, it is immediately apparent that that is not the case.
The letter goes on:
3. Regarding marriage all issues are pending before the Federal Circuit Court of Australia and all mentioned issues in the complaint have been fake and forged and of malafied intent. Ms Goel and myself both live in Australia, and she has lived in Australia for the past 8 years, which makes all the dowry and harassment claims false as she has lived from 2016 only 34 days out of 1178 days at City E after marriage, proof of travel dates and tickets can be provided upon request.
4. Ms Goel has also been issued an intervention order (FVIO) by a Suburb H Magistrates Court, Melbourne which if breached, will be a criminal offence.
5. The applicants mentioned in the false complaint My Father Mr J, is a heart patient, my mother Ms K has been treated for cancer, and my sister Ms L who lives in City M has had a baby, and due to Covid-19 risk are unable to appear before you.
6. I hereby request you to kindly look at the complaint no …, dated 19/09/2019 on the inquiry reports submitted by inquiry officer, Supdt Of Police HQ City C and pending issues as per the Australian jurisdiction divorce case before the Federal Circuit Court of Australia and the fact that applicant, Ms Goel, is not an Indian Citizen and resides in Australia. Also I am living in Australia and due to Covid 19 International travel bans by Australian government I am unable to travel and appear before you on the stated date.
I hereby request you that information in this letter has already been given to Superintendent of Police HQ City C and are also attached in this email for your reference. Given all the information and the divorce suit pending decision on 02/03/2021. Looking at all these facts and information provided Kindly quash the inquiry report by means of this letter, and accept the information. Much appreciated.
It is immediately apparent, further to the erroneous assertion as to the application for divorce in Australia having been made jointly, that the dowry harassment and return of funds and chattels are not involved in the Australian divorce proceeding. The father’s letter to the police was materially misleading, and must have been wittingly so.
On 6 July 2021, the wife filed an affidavit. At paragraph 6, she indicated that she was born in India, but has lived in Australia since about 2012, and is an Australian citizen. At paragraph 7, she deposed that the husband was born in India, and came to Australia in about January 2018. Paragraph 8, she gave details of the marriage in 2016 in City C, and separation in November 2019, and there were no children.
Paragraphs 10 to 17, I propose to read out:
On 16 October 2020, I initiated Divorce Proceedings pursuant to Section 10 of the Divorce Act, 1869. Mr Chanda is named as the Respondent Husband to the Indian proceedings.
Among other things, my Application in the Indian proceedings is for a Divorce on the basis of dowry harassment by Mr Chanda. I am also seeking further relief by way of return of dowry, return of my jewellery and money from Mr Chanda.
I am advised by my solicitor in India Ms N that the Family Court of City C has jurisdiction to herein determine my claims for relief and is able to deal with the entirety of the dispute between Mr Chanda and me.
In understand that my claims for relief as they relate to the return of personal items are analogous to Family Law property proceedings in Australia.
All of the assets namely the dowry, my jewellery and money, which are the subject of my claim for relief in the Indian proceedings, are located in India.
The next hearing in the Indian proceedings is listed on 5 August 2021 at 10.00 am local time.
On 6 November 2020, after I commenced the Indian proceedings, Mr Chanda filed an Application for Divorce in this Honourable Court.
I am advised by Ms N that if a Divorce Order were to be made in an alternate jurisdiction, that this would seriously prejudice my position in the Indian proceedings. Further, that the remedies available to me in the Family Court of City C are not available in the Federal Circuit or Family Court of Australia.
At paragraphs 18 to 23, she continued:
My allegations, in relation to dowry harassment by Mr Chanda are currently the subject of an ongoing criminal investigation in India, and there are currently criminal proceedings on foot. Following the filing of Mr Chanda’s Application for Divorce in this Honourable Court, Mr Chanda sent correspondence to the City C Police, seeking that the criminal matters be dismissed. Mr Chanda’s correspondence to City C Police dated 19 January 2021, ask that the police kindly quash the inquiry report and relies on his Application for Divorce in this honourable court.
The criminal proceedings relate specifically to misappropriation of dowry by Mr Chanda and his mother, Ms K, and father Mr J (‘Mr Chanda’s parents’).
While these proceedings are in fact in relation to a criminal complaint, I am advised by Ms N that they are intimately connected that with the Indian Divorce proceedings, insofar as they relate to my claims for relief by way of return of dowry, jewellery and money from Mr Chanda..
I understand that the outcome of the criminal proceedings will necessarily impact the outcome of the India Divorce proceedings and are very relevant to the Court’s determination of both the basis for the divorce sought by me, and the remedies ordered.
I also understand that if a Divorce Order were to be made in the Federal Circuit Court of Australia, that my criminal complaint will also be prejudiced as Mr Chanda will utilise said Divorce Order as a basis to dismiss the Criminal proceedings.
I also understand that if a Divorce Order were to be made in the Federal Circuit Court of Australia, Mr Chanda would be able to remarry in Australia prior to the Indian proceedings being resolved. There would be no incentive for Mr Chanda to respond to the Indian proceedings which will necessarily delay and prejudice those proceedings.
There then follow complaints about the husband’s approaches to the police, and the details as to status of the proceeding in India. 4, to that affidavit, is the First Information Report, which, as I understand it, is the initial document raised in criminal proceedings in India. At page 30 of 63 of the affidavit, it is noteworthy that the complainant is, in fact, the wife’s father. There are three respondents – namely, the husband in this case, his father, Mr O, and his mother, Ms K. At page 32, on 63, there are allegations of assault, to try and obtain additional dowry, theft of dowry and articles, and what is described as Istridhan which I understand to be articles given at the time of marriage.
It is said that the husband’s parents have abstracted 150,000 rupees worth of goods, and 150,000 rupees worth of cash – those figures at the current rate of exchange, being worth approximately $3000. The complaints made are essentially the same as those in the divorce petition, but first, the funds and goods and more money are included, whereas they are absent from the petition, and second, they are said to have been abstracted, at least, in part, by the second and third respondent. Exhibit 5 is a solicitor’s letter, written by the solicitors for the wife, to the solicitors for the husband, dated 22 June 2021.
This letter relevantly asserts:
1. The Divorce proceedings in India (the divorce petition) has not been adjourned indefinitely, but rather is next listed on 5 August 2021.
2. The Family Court at City C has jurisdiction to deal with the divorce matter and the criminal case bearing … dated 2 March 2021, namely the pending criminal matters against your client.
3. The criminal proceedings relate to misappropriation of dowry. These proceedings, whilst framed as a “criminal complaint”, are analogous to property proceedings in Australia and enable our client to seek relief including the return of dowry, jewellery and money from your client.
4. The correspondence from City C District Station annexed to your correspondence is undated. We are instructed that the criminal investigation and proceedings were reopened in or around January 2021, after an initial complaint from December 2019 was closed in January 2020 (The documents relating to those are enclosed).
5. Your client is seeking to utilise the Australian divorce proceedings in defence of the pending criminal matters in India. As outlined in our client’s Response to Divorce sworn 26 February 2021 at paragraph 9, and the annexure marked “-3”, your client responded to Police seeking to utilise the “issues…pending before the Federal Circuit Court of Australia” as a basis to “quash” the inquiry. It would therefore seem self-evident by your client’s conduct that the Australian Divorce matters are both relevant and prejudicial to the pending matters in India.
The next development in this matter was an affidavit sworn by Mr P on 8 July 2021. He is a consulting advocate of the wife. At paragraphs 7 to 9 he deposed:
On 16 October 2020, proceedings were filed on behalf of Ms Goel in the Family Court of City C pursuant to section 10 of the Indian Divorce Act (1869) on the basis of dowry harassment by the Husband ('the India Divorce Application').
The India Divorce Application relates to dissolution of the marriage between Ms Goel and the Husband, but also seeks further relief by way of return of dowry, return of Ms Goel's jewellery and money from the Husband.
The Family Court of City C has jurisdiction to hear and determine Ms Goel's claims for relief and is able to deal with the entirety of the dispute between Ms Goel and the Husband.
At paragraphs 11 to 13, the witness deposed:
In addition to the India Divorce Application, the allegation of dowry abuse by the Husband are subject to an ongoing criminal investigation by City C Police, with Case reference number ' … dated 2 March 2021 '.
Although the investigation by the City C Police and consequent criminal proceedings are framed as such, they are intimately related to the India Divorce Proceedings insofar as Ms Goel's claim for relief for dowry misappropriation and harassment.
The findings of the criminal complaint will affect the outcome of the India Divorce Application and any findings and relief granted to Ms Goel for dowry harassment by the Husband.
At paragraphs 18 to 20, the witness deposed:
The grant of a Divorce in Australia would be prejudicial to the India Divorce Application and the orders sought by Ms Goel.
There would be limited motivation for the Husband or any advocate on his behalf to respond and resolve the India Divorce Application in the event a Divorce were granted in Australia, in circumstances w here the Husband would be at liberty to remarry in Australia. This would likely lead to undue and avoid able delay and prejudice the India Divorce Application further.
Under Indian Law, even if a Divorce were g ranted in the Federal Circuit Court of Australia, neither party would be entitled to remarry in India until a Divorce has been obtained in an Indian Court. As such, Ms Goel seeks that the Indian divorce application be resolved on a final basis prior to the husband’s application for divorce being considered.
The wife filed a further affidavit which I do not need to refer to because it doesn’t take the matter further. The husband’s affidavit was filed on 14 July 2021. He deposed to having relocated to Australia in 2018 and to having achieved permanent residency in 2019. He deposed that the wife came to Australia in 2012 and had citizenship. He deposed the details of the marriage and separation on 28 October 2019. He deposed to interim intervention orders taken out by each of the parties, and I notice that he deposed to having re-partnered in 2020 and that he intends to marry.
He deposed that he either cannot or will not be able to return to India. He deposed that both parties intend to live in Australia. He also deposed in a hearsay way to advice from an advocate called Ms N to the effect that the divorce here would have no effect on the Indian proceedings, that the wife had lost Indian citizenship, that both parties would need to attend the proceedings in India in person, and that there were no criminal proceedings on foot because the pervious report had been quashed.
He appended a letter said to be from the Superintendent of Police at City C. That document has no letterhead, it has no date. It is signed, but there is no seal or stamp. What it purports to show is that previous allegations have been dismissed, and that the amounts asserted about dowry were false.
Finally, I think, there is an affidavit of Ms N on 16 July 2021, in which the witness deposes the matter cannot proceed as the parties cannot be in India. He deposes the wife will have no standing because she is not resident in India and not a citizen and he deposes that the divorce order here will make no difference in India.
I will refer briefly to the oral submissions made yesterday. Both traversed authority. Mr Devries for the husband emphasised that oppression in this matter works against the husband, not the wife. He submitted that this is an endeavour by the wife to ensure that any further negotiations take place, as he put it, on their terms.
Mr Robertson, for the husband, emphasised the complete relief being available in India. He submitted it would be oppressive to put the wife in the position where she loses the advantages available to her in India.
Having traversed at somewhat laborious length of these matters, I come to make my own comments. First of all, the onus lies on the party seeking relief, as Mr Devries submits it. However, the High Court in Henry was somewhat critical in [28] of the notion that a person who invokes, regularly, the exercise of a jurisdiction is prima facie entitled to insist on its exercise. At [29] the High Court said the following:
There may be cases in which the notion of prima facie right has some role in determining whether or not a stay should be granted. For example, it may well be significant in what is otherwise a finely balanced contest, but there are also cases in which that notion can do little more than indicate that the onus lies on the party seeking the stay to establish that the chosen forum is clearly inappropriate. Indeed, there may be cases where the forum is so clearly inappropriate that the notion of prima facie right can have no real bearing upon the matter.
But to the limited extent, therefore, envisaged by the High Court, the onus lies upon the applicant for the stay. Second, I find the arguments between the Indian lawyers very unhelpful. It seems also inconceivable to me that two members of the practicing profession, apparently in situ, could have such radically different views as to what the outcome of these proceedings in Australia might or might not cause in India. But I note in the case of Talwar, from which I earlier quoted at [46], the Full Court said the following:
We doubt that such a course is necessary in any event. A party seeking to rely on a foreign law bears the onus of proving it. In the absence of expert evidence, the Court should proceed cautiously, but bearing in mind the following words of Ryan J in Applicants in V 722 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1059:
33.However, it is not necessary for a court or tribunal to resort to expert evidence of that kind in order to make a finding as to the effect of a relevant law of a foreign country. If, for example, the text of a presumably relevant statute of that country or an authoritative statement in a legal text book or other authority appears to suggest with sufficient precision the effect of the law in question, the court or tribunal is entitled, in the absence of contradictory expert evidence, to make a finding accordingly (Evidence Act (Cth) 1995 s 174(1)).
I bear those observations and reservations carefully in mind. In the proceedings listed on 5 August 2021, there must be a query as to whether it would proceed bearing in mind that neither of the primary parties alleged would be present, although I note the second and third respondents to the criminal proceedings are in India.
It is quite impossible to assess in any meaningful way the effect of the non-residence of the parties and the loss of the wife’s citizenship, assuming that that is the case.
The wife says she has claims under other Indian legislation in relation to dowry, but these are not, prima facie, mentioned in the divorce petition. The only relief sought on the divorce petition in terms is dissolution of the marriage and by inference on the basis of dowry harassment.
The next point to note is that the proceedings were commenced very close together. The Indian proceeding commenced on 6 October 2020, and the Australian one on 6 November 2020, some three weeks later. It is not clear to me that the husband had even been served with the Indian proceeding by that point.
The Indian proceeding has not, it would seem, got very far at all. The one in Australia is all but finalised subject to this application. The next point to note, is that property proceedings are available here, but I do note that they are probably only really available as between the two primary players. Any application to join the husband’s parents would face considerable logistical and other difficulties.
The next point to note is that the criminal proceeding was only lodged as to the First Information Report on 2 March 2021. On any view of the matter, it is likely to take time. If it is intimately connected to the divorce proceedings, as is asserted by the wife, then it is inescapable that the divorce proceedings will surely be delayed until the criminal result is known. The general tenor of the proceedings in India that emerges for me is one that is likely to take a very expanded period of time.
The next point to note is there is no commonality of the parties in the family and criminal proceedings in India. Indeed, the First Information Report and the petition seemed to suggest that the extraction of the chattels in India was, in fact, conducted by the parents-in-law alone. I also note some of the wife’s own evidence suggests that, for example, her jewellery was extracted in Australia, although I suppose it is possible it has since been in some way sent to India.
Next, and this is important, the wife’s case does not disclose with any particularity what the advantages are that will be lost if the divorce is granted in India. I remind the parties of paragraph 10 of the wife’s response, which I read out. It may be incomplete, but on its face it says nothing there that indicates what the advantages are. If one goes to the wife’s affidavit at paragraph 17, I repeat what was said in that paragraph:
I am advised by Ms N that if a divorce order were to be made in an alternate jurisdiction that this would seriously prejudice my position in the Indian proceedings. Further, the remedies available to me in the Family Court at City Q are not available in the Federal Circuit Court or the Family Court of Australia.
And, at paragraph 22:
I also understand that if a divorce order were to be made in the Federal Circuit Court of Australia that my criminal complaint would also be prejudiced as Mr Chanda will utilise said Divorce Order as a basis to dismiss the Criminal proceedings.
I remind everybody again that Mr P said no more than the matters I have already read out in his affidavit as to what the effects of the divorce order here would be. His affidavit says that the Indian Court can grant further relief by way of a return of dowry and return of jewellery and money from the husband, but there is nothing said, in my view, that says with sufficient particularity what the rule in India is and exactly what advantages it is said are going to be lost.
So that brings us to the next set of considerations. First is the case in Australia prima facie vexatious? In Talwar at [25] the Court said further:
However, that is not the end of the consideration. The majority in CSR said at 400-401:
In cases such as the present, where different issues are involved in local and foreign proceedings, albeit that the different proceedings arise out of the same substratum of fact, the question is not whether the Australian Court is clearly an inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversies as a whole, the Australian proceedings are vexatious in the Voth sense of those terms, namely that they are productive of serious and unjustified trouble and harassment or seriously and unfairly burdensome, prejudicial or damaging.
In my view, that is not the case here. If the Court makes a divorce order here, the Australian proceeding is concluded. I repeat, all the pre-conditions to obtain a divorce in Australia have been met. They both live here, the wife, as a citizen, has lived in Australia since 2012. The husband has been a permanent resident since 2019. There is no question that they have been separated for a year and they have no children.
In my view, this is not, therefore, a prima facie vexatious case in the Voth sense. However, even if I am wrong as to this and it was prime facie vexatious in the Voth sense, the controversy in India, while clearly relevant, is not identical to that in Australia because there are different parties and, it would appear, at least for the moment, different causes of action. The claims against the husband, however, are all essentially financial and are, in substance, property claims arising from the marriage. Claims against the in-laws appear to me to be essentially theft, although there may be other matters.
However much of the disputed property is in India, the husband and wife are clearly going to be in Australia. Whatever uncertainties there are about the divorce in Australia on the proceedings in India, it is clear that if we were to adjourn this matter to await the Indian result, the husband would be prejudiced very directly, because he would not be able to remarry, which he wants to do.
It is clear, I would say in passing, that both parties plainly regard the divorce outcome here as weighing on their chances of success in India, but it is by no means clear to me, in truth, quite why they take that position. It may be as simple, as Mr Devries puts it, as a sort of bargaining chip. There may be other considerations that I feel lurk in the shadows but have not been illuminated, but I repeat: the wife has simply not articulated in any meaningful way what the actual disadvantages will be if a divorce order is made here.
It is not in any way clear to me why the divorce in Australia would affect the criminal proceedings against the husband, let alone his parents. Having regard to the controversy as a whole, and noting all of the matters I have set out, this proceeding is not vexatious in the Voth sense. The parties live here, the wife has done so since 2012. The husband wants to remarry, which is in the broader scheme of things a lawful and understandable desire.
The fact that other proceedings are underway is, of course, relevant, but not determinative. It is a matter of looking at the controversy as a whole, and I note that in India it is the wife’s position that she, indeed, wants a divorce. In all the circumstances, and I refer to all the points I have made, I decline to dismiss the application, and I also decline to adjourn generally. There is no good reason not to make the divorce order, and I propose to make the divorce order today in the usual terms.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 16 August 2021
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