CHANDRA & ALHOUB - [2015] FamCA 77

FAMILY COURT OF AUSTRALIA

CHANDRA & ALHOUB

[2015] FamCA 77

FAMILY LAW – Application for declaration as to validity of marriage where a divorce was granted in Country C – Requirements of establishing the relevant date for filing of the divorce application in Country C relaxed by virtue of the nature of the application.

FAMILY LAW – Application to waive the service requirements on the respondent who could not be found and substituted service unlikely to bring the matter to the attention of the respondent before the order is made – Matter adjourned several times to attempt various searches and service on the respondent and her family.

Family Law Act 1975 (Cth)

In the Marriage of Tansell (1977) 3 Fam LR 11,466

APPLICANT:

Mr Chandra

RESPONDENT:

Ms Alhoub

FILE NUMBER:

MLC

3694

2014

DATE DELIVERED:

17 February 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

22 January 2015; 16 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Zeno

THE RESPONDENT:

No Appearance

Orders

That the requirements for service on the respondent are waived and the applicant has permission to proceed with his application on an undefended basis.
A declaration is made the divorce granted by the B Court in Country C on 7 December 2011 is a valid divorce for the purposes of Australian law.
That the application as amended on 21 January 2015 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chandra & Alhoub has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3694 of 2014

Mr Chandra

Applicant

And

Ms Alhoub

Respondent

REASONS FOR JUDGMENT

By his application filed 12 August 2014 and amended on 21 January 2015, Mr Chandra sought orders that:
the requirement of service of his application upon the respondent be waived (that was in a separate application in a case document filed 26 November 2014); and
a declaration be made that a divorce granted in Country C was validly recognised in Australia.
The application had to be adjourned for the applicant to obtain appropriate evidence both as to service attempts but also as to the substantive proceeding.
The respondent in the proceedings is Ms Alhoub. Although the application asserted she was born in 2011, the marriage certificate, which is obviously much more reliable than anything signed by the applicant, says 1992. She was said to have been born in Country C.
The applicant asserts that despite his best efforts, he has been unsuccessful in ascertaining the whereabouts of the respondent albeit he thinks she is residing with her new husband in Country C. According to the applicant, the respondent does not see her parents and family in their village in Country C often and they say they are not aware of where she is living.
The evidence about attempts at service was sparse and the Court was asked to rely upon what the applicant was told by various members of his family including his father. His attempts through formal channels such as a registration system in Country C were also not enthusiastically embraced. In this case however, I am satisfied that some attempt has been made to contact and serve the respondent but that, having regard to the nature of the application, it would be most unlikely that she would have any interest in the proceedings. To use an expression that seems to have found favour with the applicant, the respondent has moved on with her life and he wants to as well. All of that must be viewed in the context of these unusual facts and the question of procedural fairness. For the reasons that follow, I find it is appropriate to dispense with formal service requirements.
The applicant was born in Australia in 1989.
The applicant began proceedings in the Federal Circuit Court on 30 April 2014 by filing an application for divorce. It soon became apparent that even on the applicant’s version, he was already divorced but that had occurred through the courts in Country C. The divorce proceeding was then dismissed and because of the view that Court took about jurisdiction, the proceedings began here.
The applicant relied on several affidavits and, because of my uncertainty about what he was saying, oral evidence was given on 22 January 2015. That did not advance the matter much at all. Again because of lack of evidence, the matter was further adjourned. A further affidavit was filed this day sworn by the applicant attaching another affidavit of service purporting to be sworn by his cousin in Country C to the effect that he had served the respondent’s father in her village with the limited documents that had been filed with the Court. That did not advance the matter much either but needless to say, there has been no appearance by or on behalf of the respondent.
This saga all began in 2010 when the applicant went to Country C for a holiday where he met the respondent. That meeting led to an engagement to be married and thereafter, the applicant returned to Australia and applied for a spousal visa for his wife-to-be.
Because of custom and religion, the parties also married in Country C somewhere around January 2011. The applicant was in Australia and thus the ceremony occurred either by proxy or through an attorney under power. On 1 February 2011, the respondent arrived in Australia and moved into the home of the applicant’s parents.
The applicant and the respondent were married under Australian Law at Suburb D on 24 March 2011. Each described their usual place of residence as the address at which the applicant still lives.
The marriage and also their relationship was short-lived. The parties separated on 1 May 2011 because, to use the words of the applicant, they were not happy. An agreement between the respective families then saw the respondent fly back to Country C on some unstated time after 1 May 2011. The families then reached a further agreement that the couple should divorce.
The applicant then signed a power of attorney to his cousin and on his behalf, a divorce was sought from the B Court in Country C.
A translated certificate shows a divorce was granted by the B Court on 7 December 2011 and the equivalent of the Australian divorce order was issued on 21 December 2011.
The applicant then wanted that divorce recognised in Australia and hence the proceedings were commenced as described. The applicant gave evidence that his contacts advised that the respondent had “eloped” with a man from City E in Country C and the inference to be drawn was that such an arrangement did not find favour with her family. Thereafter, the respondent left the family’s village and just how often she has contact with them remains a mystery. It will be obvious why my concluded view was and remains, that service is pointless but also why the respondent probably has no interest in these proceedings.
Although the certificate of divorce issued in Country C distinguishes between the parties by use of the words “Divorce'” and “Divorcee” which would tend to suggest that the applicant was the applicant for the divorce, it was his evidence that the application was made the jointly. Nothing turns on that. The applicant also said that at the time the respondent left Australia, they were “on good terms”. Despite all of those matters, the applicant and his family have been unable to present any evidence to show how these court documents could be drawn to the attention of the respondent.
At the hearing on 22 January 2015, the solicitor for the applicant sought to proceed with the application on the basis of s 104 of the Family Law Act 1975(Cth) (“the Act”) but she conceded that whilst that provision requires Australian authorities to recognise divorces granted by overseas jurisdictions, there is no power to grant a declaration about the validity of the divorce under that section. The relevant power lies in s 113 of the Act.
An adjournment ultimately became necessary for the applicant to provide proofs of the issues in s 104 of the Act.
In relation to jurisdiction, s 39 of the Act provides that proceedings for a divorce may be instituted under the Act if at the date of the filing of the application, either party to the marriage satisfied citizenship, domicile or residence requirements. The applicant satisfied the requirement. Divorce or validity of marriage proceedings as defined by s 4 of the Act refers to proceedings between the parties to a marriage including proceedings for a declaration as to the validity of a divorce. The reference to the parties to a marriage includes a marriage that has come to an end.
The applicant desires a declaration because the relevant Victorian registration authority will not accept that he has been divorced in Country C such as to enable him to marry again.

23.Section 104 of the Act enables decrees from an overseas jurisdiction to be recognised in Australia. To satisfy the requirement however, the respondent in this case, had to be resident in Country C on the “relevant date”. The relevant date is that upon which the divorce application was filed. The evidence to support those two requirements had been missing throughout the proceedings. The solicitor for the applicant asked the Court to infer satisfaction of the requirements based upon what her client had been told by a very circuitous route but also based on guesswork as to when the application had been filed. She said, without evidence to support this, the applicant and the respondent had agreed to the divorce as had their families. The religious leader had approved it so the respondent and the applicant, through his attorney under power, went to the B Court where the formalities were concluded. Despite my willingness to waive the service requirements for the reasons set out, I did not consider it appropriate to “waive” or draw inferences about what I considered to be jurisdictional facts.

The adjournment did not cure the relevant date problem but on the best evidence available, I am satisfied for the purposes of s 104 (3)(a) of the Act that it was around the time asserted by the applicant and at that time, the respondent was a resident of Country C which country’s legal system issued the divorce order.
Section 113 of the Act permits the Court to grant such declaration as is justified. No formal requirements are set out in the section.
In In the Marriage of Tansell (1977) 3 Fam LR 11,466, the Full Court when dealing with an application for a declaration as to validity of a marriage said that, as a matter of law, the court should not grant relief where the validity was not in doubt or where the declaration can have no effect on the parties or their status. Whilst that related to a marriage, the same principles should apply to a divorce. Here, from the applicant’s perspective, this is not hypothetical and it does affect his status. From his perspective, on the evidence I have accepted, he needs the declaration to satisfy Australian law. It was not argued in this case whether that is right but I have accepted it is. Where the section is silent about its formal requirements, the Court should revert to the principles that Parliament provided, particularly as here, they are mandatory requirements.
Section 43 of the Act provides:
The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a)the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
(c)…
(ca)…; and
(d)the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.
Although marriage is seen as a voluntary institution entered into for life, the parties here lasted living together, let alone married, for only a few weeks. There is little point in the Court endeavouring to fulfil the mandated requirements of (a), (b) or (d) as set out above in this case because:
(a) the respondent had returned to Country C by agreement only days after the very short marriage broke down;
(b)      both parties then quickly divorced;
(c)      the respondent has remarried; and
(d)      the applicant espouses his wish now to remarry too.
Section 113 must be widely read. I am satisfied that “justified” means what is just and right in the particular circumstances.
The applicant is recorded in Australia as still married. He could not obtain a divorce order for that marriage because he is already divorced and as such, accepting as I do that the Country C order was issued, there is no basis for a divorce order to be made here. The applicant referred to his attempts through the Registrar of Births, Deaths and Marriages where he was told that he needed a court order to establish the authenticity of the overseas order. Accepting the evidence of the applicant that the respondent has “moved on” with her life and remarried as a result of the overseas divorce order, I consider it only just and right that he has the same opportunity. It goes without saying that if he is correct that he cannot obtain a divorce order in Australia, this was the very situation which the Act contemplated when the Parliament enacted sections 104 and 113.
It is appropriate therefore to grant the declaration sought.
I request that the Registrar of Births, Deaths and Marriages note the declaration accordingly.

I certify that the preceding Thirty Two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 February 2015.

Associate:

Date: 17 February 2015