DALLAL & HANIF

[2020] FCCA 2313

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALLAL & HANIF [2020] FCCA 2313

Catchwords:
FAMILY LAW – Contested application for divorce – wife in India since March 2018 – whether husband disclosed intention to divorce in January 2019 – whether parties later reconciled – text messages in January 2019 clear and unequivocal – wife’s later messages not unequivocal – wife’s challenge to Australia court’s jurisdiction not upheld – divorce ordered.    

Legislation:

Family Law Act 1975 (Cth), ss.55A(1)(b), 55A(3)

Cases cited:

Henry & Henry [1996] 185 CLR 571

Applicant: MR DALLAL

Respondent: MS HANIF

File Number: MLC 805 of 2020

Judgment of: Judge Burchardt

Hearing date: 7 August 2020

Date of Last Submission: 7 August 2020

Delivered at: Dandenong

Delivered on: 20 August 2020

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Self-represented

Solicitors for the Respondent: Not applicable

THE COURT FINDS:

1. The marriage is proved.

2. The husband was at all material times domiciled in Australia.

3. The ground for the application for a divorce order – namely, that the marriage has broken down irretrievably – is proved.

THE COURT, BY ORDER, DECLARES THAT IT IS SATISFIED:

1. The only child of the marriage, as that expression is defined in section 55A(3), who have not attained the age of eighteen years is:

   (a)X born in 2011

2. The Court by order declared that it was satisfied that the only child of the marriage who has not attained the age of eighteen years is the child specified in the order and that proper arrangements in all the circumstances have been made for the care, welfare and development of the child.

THE COURT ORDERS:

1. A divorce order be made, such divorce order to take effect, 30 days from the date of this Order and thereby terminate the marriage on 21 December 2010.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 805 of 2020

MR DALLAL

Applicant

And

MS HANIF

Respondent

REASONS FOR JUDGMENT

1. This is a divorce application that has proceeded in difficult circumstances in a number of ways. First, at least by the time of the hearing, both parties are not legally represented.  Second, the respondent wife is in India.  Third, the hearing had to be conducted by Microsoft Teams because of the COVID emergency.  These matters presented obvious and significant forensic challenges to the court.

2. The applicant husband has sought a divorce in his application filed 28 January 2020.  He details the date of marriage as 2010 and separation on 23 January 2019.The marriage itself is not in issue. 

3. The wife’s response asserts, relevantly, that this Court as an Australian Court, has no jurisdiction as the applicant and respondent and their son are Indian citizens and the matter should be transferred to an Indian Court.  She further asserts that, in substance, that the parties are not, in fact, separated.

4. In Part C paragraph 7 of her response she asserts:

   He is not living in Australia from 31/01/2018.  We together moved to Australia on in 2018 and returned back to City B in 2018.  From there Mr Dallal went to Country C and I along with my son returned to City D.  Mr Dallal finally left Country C in 2019 and since then he is living there in Australia.

5. In his affidavit filed in support, filed 28 April 2020, the husband corrected an error in his divorce application and asserted that he started living in Australia permanently in 2019 (something not ultimately in dispute).

6. In a further affidavit filed on 19 May 2020, the husband deposed, relevantly, that in 2019, he attended his brother’s wedding in India together with the wife and son.  (The son X was born in 2011).  In paragraph 5 of his affidavit, the husband deposed:

   Upon conclusion of the wedding the Respondent Wife and I decided to take a short trip to City E, India with our son.  During that trip I disclosed to the Respondent Wife that if she will not join me in Australia, she could consider the marriage as over. 

   In 2019, the Respondent Wife departed to her hometown in India and I travelled to Country C to surrender my C-Permit which was my then permanent resident status before travelling to Australia on a permanent basis.  I say that we did not travel together since that day. 

   During my flight to Country C I sent a few Whatsapp Messages to the Respondent Wife.  In the messages I conveyed to the Respondent Wife that the relationship was over and reiterating that I am separating from her. 

   The Respondent Wife responded stating that it was a good idea to separate and she will sign the Divorce Paper.

7. The husband appended to his affidavit interpreted versions of those text messages.

8. Inter alia, these text messages assert:

   …Ms Hanif, I now want to separate from you… We cannot give him any future by staying together.  Perhaps we could give him stability by separating? 

   Ms Hanif, this is my conclusion that you and I are not compatible.  We are two very different persons whose thinking, ambitions, aspirations, motivations, expectations and everything else do not match.  In this way, we cannot provide support to each other… You will never be able to live a happy life with me, and I will never be able to live with you in peace.

9. The wife’s response inter alia asserted:

   You have thought correctly and it’s a good decision… you can initiate the process… now you are going to Australia where I will not be there.  At least spend your time in peace and concentrate on finding a job…

   If you cannot invest your time and honesty in a relationship, you should not expect much in return… husband and wife relation should be transparent, not a fake relation… you cannot carry it… so long as a husband keeps fighting on behalf of his mother and sister, the relationship cannot be sustained… send me divorce paper, I will sign it.

10. The husband went on to depose that he regarded the marriage as over on 23 January 2019.  The matter went before a registrar who on 18 June 2020, relevantly made the divorce order.  What is before the court, of course, is the application for review filed by the wife on 7 July 2020.  In that the wife asserted, relevantly, that

    4) we have a child of 8 years and I don’t have any financial support.

    5) …one year separation which he has showed to the court is not correct.  It is completely false.

    2) I have a PR along with my child, and our PR should be sent to us immediately, show that I can also make Australia my home country.

    3) My husband is an Indian citizen and it is an offence in India to seek divorce like this.  He is misutilising Australian law by deserting me and his child.

11. When the matter came before the court, the parties essentially made submissions, although I did affirm each of them.

12. I note that it was agreed that the parties married in India in 2010.  It was a Muslim marriage.  The husband addressed the Court first.  He asserted that in 2019 he was in Country C.  The wife had left Country C in 2018 to go to India.  In 2019, he exercised his permanent residence in Australia (his migration permit had been provided to the Court).  He confirmed that the parties had been to Australia in February 2018. 

13. He asserted that he had communicated the intention to divorce on 23 January 2019, both in person and then by text.  He said that after January 2019, they had a trip to City E.  He said they discussed at length and he asked her to join him in Australia and she refused.  He said he had told her orally that if she did not join him then the marriage would be over.  She flew to City D and he left for Country C on the same day.  He sent her text messages of his intention to separate shortly after arrival in Country C and she responded.  She has said, “Send me the divorce paper and I will sign it.”

14. I permitted Ms Hanif to cross-examine, but what really emerged was a statement by her.  She said she, “was already staying in India.”  She said, “there was no separation in City E.”  He had not mentioned it in front of either her parents or his parents.  They were still husband and wife.  She referred to a message in 2019 in which she wished him happy for his birthday and issues to do with the in-laws.  She had texted him on 25 September 2019 saying she would come and referring to small disputes.  She said she had, “Always said she would come.”  And she would not have otherwise told the husband on 3 August to, “Get a proper job.”  She referred to the fact that there has been a police complaint lodged in India arising out of what is said to be the unlawful application for divorce in Australia.  Finally, the wife said that it would be impossible for her to make any claim for financial assistance in India if a divorce was granted in Australia.

15. It should be noted that the wife has sent a number of emails to my chambers which, albeit not in proper form on affidavit, I have obviously had regard to.  I have had proper regard to all of these texts, which may appear not to have been fully disclosed by the wife in her tranche of materials, (when one looks at the husband’s subsequent enlarged version.).  Nonetheless, in my view, they are all ultimately equivocal.  I note that in her emails to my associate the wife has tended to emphasise the alleged refusal of the husband to send her PR (Permanent Residence) to her in City D and also his refusal to send air tickets to enable her to come to Australia.

16. During the currency of the hearing I requested the husband to provide copies of the Permanent Residence documents and he did so entirely cooperatively and, at least, the wife will have the benefit of having had that issue resolved in her favour. 

17. Disaggregating from this exactly what the true position is, is not entirely easy.  But I will deal with issues as best I can. 

18. The first question is the matter of jurisdiction.  There is no doubt that both the applicant husband and the respondent wife and their child are all permanent residents of Australia.  The documentation forwarded to the Court makes that plain.

19. The next issue is whether it is appropriate to proceed with the application in Australia when all three relevant parties are Indian citizens and the parents were married in India according to Indian Muslim law. 

20. The High Court has made it clear in the case of Henry & Henry [1996] 185 CLR 571 that the test for these matters is whether Australia is a clearly inappropriate forum. In circumstances where the applicant husband is living here and has every settled intention of remaining here and is a permanent resident of Australia, there is no question that Australia is not a clearly inappropriate forum. The wife has asserted that it is a criminal offence to act in the way that the husband has by seeking a divorce in Australia and that she has instituted criminal proceedings to this effect in India as a result. No evidence has been put before me that this is, in fact, the case. But even if it is, it is not, in my view, a ground of opposition sufficient to oust the Australian forum as being clearly inappropriate. It may well be that the Australian divorce is of no legal effect in India. Although I note that the wife has asserted that the making of the divorce order here will make it impossible for her to pursue property proceedings in India, there is no evidence to support this proposition which is not otherwise disclosed in the wife’s relatively voluminous materials forwarded to the Court. It has all the appearance of being something added on as a last afterthought. Even if this is the case, however, it is not, in my view, sufficient to oust the Australian Court, once again, I repeat, as a clearly inappropriate forum.

21. The next question is whether or not the parties have been separated for a year.  The evidence in my view is compelling.  Mr Dallal gave his account of events to me after being affirmed and it was given in a cogent and clear and believable way.  Furthermore, it is entirely consistent with his contemporaneous text messages to the wife and her response.  The wife says that this was, in effect, just a momentary quarrel and that they made it up thereafter.  What is clear, however, is that they have not lived together for even 1 hour since they parted on 23 January 2019.  The wife has remained in India while the son completes an element of his schooling as was apparently agreed by the parents when she and her son moved to India in 2018.  The various messages put, to my way of thinking, merely show discourse between the husband and wife.  But they do not reveal any reconsideration of the clear notice the husband gave to the wife in January 2019 and its acceptance by the wife when she called for him to send her the divorce papers. 

22. In my opinion separation of more than 1 year before the divorce application was filed is established on the balance of probabilities.

23. The only other matter which is relevant is the question of the arrangements for the child pursuant to section 55A(1)(b) of the Family Law Act, the Court must be satisfied:

    (b)  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.

24. It is clear that the child named in the Court’s order is the only child of the marriage.

25. Very little has been said by either party about the arrangements for the care, welfare and development of the child.  What I do know is that the parents, according to the wife by agreement, permitted her to return to City D in 2018 so that the child’s English would be improved, he having been previously educated in Country C.  The husband has asserted without challenge that the wife lives with her parents.  The wife has said in her materials that she has no financial support but has not otherwise developed this point.  And the husband said, in almost his last remark, that he, “would support his son in India”.

26. In circumstances where the parties both agreed that the child would be in India until, at least, the latter part of 2019 to complete sections of his education it is in my view, doing the best one can in the circumstances, that there must be appropriate arrangements for the care, welfare and development of the child in place.  The parties would not have agreed to place him with the wife and her parents in India otherwise.  The wife, as I perceive the matter, has a vivid desire to come and live in Australia although it is in no ways clear to me that she wishes to live with the husband.  The most accented matter in her materials is the alleged withholding of the PR documentation, which difficulty has now been resolved.  She complains that she has not the funds to obtain airfares to Australia.  But as I pointed out, the Court has no power to make the husband send her airfares whether she is married or not married to the husband.  While the Court could, on one view, seek, as it were, to force the husband to send airfares by withholding the divorce order to which he would otherwise be entitled, this does not seem to me to be a proper exercise of the Court’s power.  The husband is either entitled to his divorce or he is not.  In my opinion, he is. 

27. The husband, if I understood him correctly, sought that the divorce order take effect immediately.  There is no good reason why the ordinary order should not be made, and this order will come into effect after the standard period.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 20 August 2020