FAMILY COURT OF AUSTRALIA
| DANE & KABRIG | [2013] FamCAFC 113 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – DIVORCE ORDER – where the wife seeks that the divorce order granted on 1 May 2012 be set aside with costs – where the husband opposes the appeal – where the grounds of appeal do not constitute proper grounds of appeal – where the wife says that jurisdiction should not be exercised because the divorce order may not be recognised in India – where the court had jurisdiction to grant the divorce – where Australia is clearly not an inappropriate forum – appeal dismissed. FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the husband seeks costs on an indemnity basis in the event that the appeal is unsuccessful – where the wife opposes any order for costs – where there are circumstances that justify an order for costs – where the wife has been wholly unsuccessful – where there are no unusual or exceptional circumstances – costs ordered on a party/party basis. |
| Family Law Act 1975 (Cth) – s 39(3), s 48, s 117 Family Law Rules 2004 (Cth) – r 19.08 |
| Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Yunghanns v Yunghanns (2000) FLC 93-029 |
| APPELLANT: | Ms Dane |
| RESPONDENT: | Mr Kabrig |
| FILE NUMBER: | MLC | 608 | of | 2012 |
| APPEAL NUMBER: | SOA | 43 | of | 2012 |
| DATE DELIVERED: | 2 August 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 29 November 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 1 May 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 547 |
REPRESENTATION
| THE APPELLANT | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Robinson |
| SOLICITORS FOR THE RESPONDENT: | GPZ Legal |
Orders
The appeal be dismissed.
The wife pay the costs of the husband of and incidental to the appeal, such costs to be assessed on a party/party basis in default of there being agreement as to the same, with such costs to be paid within four months of the date of any assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dane & Kabrig has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 43 of 2012
File Number: MLC 608 of 2012
| Ms Dane |
Appellant
And
| Mr Kabrig |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 25 May 2012 Ms Dane (“the wife”) seeks to appeal against the order for divorce made in these proceedings by Federal Magistrate Riethmuller, as he then was, on 1 May 2012. The respondent is Mr Kabrig (“the husband”) and he opposes the appeal.
On 24 September 2012 I conducted a directions hearing to prepare…
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- Dane & Kabrig [2013] FamCAFC 113
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- [2013] FamCAFC 113
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CaseChat Overview and Summary
In this case, the wife appealed against a divorce decree granted by the Federal Court of Australia, arguing that the court erred in law and on the facts, and lacked jurisdiction. The wife contended that the marriage was solemnized in India under the Hindu Marriage Act, 1955, and therefore, the Australian court had no jurisdiction to grant a divorce. She also claimed that the respondent concealed material facts and filed the divorce petition with malafide intentions. Additionally, the wife argued that the decree of divorce had no legal status in India and would cause her psychological and financial burden.
The legal issues before the court were whether the Federal Court had jurisdiction to grant a divorce, whether there were material errors in the judgment, and whether the decree of divorce had any legal force in India. The court needed to determine if the marriage was governed by Indian law and if the respondent's actions constituted an abuse of process. Furthermore, the court had to consider whether the respondent's concealment of material facts and the implications of the decree of divorce in India warranted setting aside the judgment.
The court examined the jurisdiction of the Federal Court to grant a divorce based on the parties' marriage solemnized under the Hindu Marriage Act in India. The court found that the marriage was governed by Indian law, but since the respondent had been residing in Australia for ten years and had no intention of leaving, the court exercised its jurisdiction. The court also reviewed the evidence and found no material errors in the judgment. The wife's claims of malafide intentions and concealment of material facts were deemed insufficient to set aside the decree of divorce. The court further held that the decree of divorce would have legal consequences in India, but the wife's burden to challenge it in Indian courts did not justify setting aside the Australian judgment.
The appeal was dismissed, and the decree of divorce granted by the Federal Court of Australia was upheld. The court found no grounds for setting aside the judgment, and the wife's claims of jurisdictional errors, material irregularities, and malafide intentions were not substantiated. The court emphasized the importance of respecting the sovereignty of other nations and their laws, but also noted that the wife's remedy lay in challenging the decree of divorce in Indian courts.
The legal issues before the court were whether the Federal Court had jurisdiction to grant a divorce, whether there were material errors in the judgment, and whether the decree of divorce had any legal force in India. The court needed to determine if the marriage was governed by Indian law and if the respondent's actions constituted an abuse of process. Furthermore, the court had to consider whether the respondent's concealment of material facts and the implications of the decree of divorce in India warranted setting aside the judgment.
The court examined the jurisdiction of the Federal Court to grant a divorce based on the parties' marriage solemnized under the Hindu Marriage Act in India. The court found that the marriage was governed by Indian law, but since the respondent had been residing in Australia for ten years and had no intention of leaving, the court exercised its jurisdiction. The court also reviewed the evidence and found no material errors in the judgment. The wife's claims of malafide intentions and concealment of material facts were deemed insufficient to set aside the decree of divorce. The court further held that the decree of divorce would have legal consequences in India, but the wife's burden to challenge it in Indian courts did not justify setting aside the Australian judgment.
The appeal was dismissed, and the decree of divorce granted by the Federal Court of Australia was upheld. The court found no grounds for setting aside the judgment, and the wife's claims of jurisdictional errors, material irregularities, and malafide intentions were not substantiated. The court emphasized the importance of respecting the sovereignty of other nations and their laws, but also noted that the wife's remedy lay in challenging the decree of divorce in Indian courts.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The wife set out her grounds of appeal in her Notice of Appeal filed on25 May 2012 as follows:(A)Because the impugned judgment dated 01.05.2012 in pith and substance is contrary to the facts, law and circumstances of the case.(B)Because the Ld. Federal Court, Australia, has erred in law as well as on facts of the case while granting the decree of divorce in favor of the respondent and against the appellant.(C)Because the impugned judgment dated 01.05.2012 suffers from material illegalities and irregularities and can cause irreparable loss to the appelant [sic].(D)Because the petition filed by the respondent for seeking divorce is motivated and afterthought & most importantly under Section 23(1)(a) of the Hindu Marriage Act, the respondent is not entitled to seek decree of divorce in his favor as prayed for and the impugned judgment dated 01.05.2012 is liable to be set aside with heavy compensatory costs.(E)Because the Ld. Federal Court, Australia did not have the territorial jurisdiction to try and adjudicate the divorce petition and this vital fact has completely been ignored by the Federal Court, Australia while deciding the petition and has committed an error apparent on the face of it and passed the order in a very mechanical way without applying judicial mind by observing that since petitioner had been residing in Australia for the last 10 years and had no intention to leave Australia without considering the fact that the petitioner was residing in Australia even before the marriage. But despite of [sic] the said fact he opted for a girl based in India for marriage and came to India for solemnization of marriage as per Hindu rights and custom and Hindu Law instead for choosing to marry under Australian Law. It is pertinent to mention here that the marriage of the appellant and the respondent was solemnized in Delhi, India on … 2004 according to Sikh Rites under Hindu Marriage Act, 1955 which extend to whole of India except state of Jammu & Kashmir and moreover, the same applies to the Hindus domiciled within the territory outside India. It is further pertinent to mention here that the entire ceremonies to the marriage of the parties were taken place in India and the marriage of the appellant and the respondent was also got [sic] registered in accordance with the rules framed under section 8 of the Hindu Marriage Act, with the Registrar of Marriage, New Delhi and hence the decree of divorce passed by the Federal Court has of [sic] no legal status and force in India and deserves to be set aside.(F)It is obligatory on the part of civilized nations, including their courts, to regard the sovereignty of other nations and their domicile laws inter se having the core principle of pacific co-existence.(G)Because the Ld. Federal Court of Australia has failed to appreciate the fact that the respondent has filed the divorce petition on the basis of false and frivolous facts by concealing material facts from the court and on that very ground the decree passed by the Federal Court of Australia deserves dismissal. It is pertinent to mention here that there are several litigations between the appellant and respondent which are criminal in nature are pending in the competent court of India and this vital fact has completely concealed by the respondent herein while filling [sic] the petition for seeking divorce. The respondent also tried to misrepresent and play fraud upon the court by stating that no case is pending against him. The respondent has also appeared in the cases pending in Indian Courts through his counsel and his father, has filed his reply to the petition relating to matrimonial disputes filed by the brother of the appellant on her behalf and hence subjected himself to the jurisdiction of Indian Courts for decision of cases under Indian Law. In fact he cannot be permitted to file divorce petition in Australia and indulge in Forum shopping by using the system as per his convenience and hence on the very ground, the order passed by the Federal Court of Australia deserves to be set aside out rightly.(H)Because the Respondent does not respect the court orders of any country and wants to use court as a tool to his malafide intentions. He disobeyed the orders passed by the Ld Court and did not submit his reply in time even though it has been prepared by the dates given by the Ld. Court. He intentionally did so, so that the appellant does not get appropriate time, set by the Ld Court, to file the counter reply. It is highly appreciated that the Ld Federal Court did not consider the reply at the time of passing the impugned order. However, had the respondent given his reply honestly and in time, the appellant would have filed her counter reply and then the impugned order would not have been passed in such a mechanical manner. Hence on the very ground, the order passed by the Federal Court of Australia deserves to be set aside out rightly.(I)Because the Ld. Federal Court in Australia has failed to even sense the malafide intention of the respondent herein who in an effort to get rid of litigation pending in Indian courts filed Divorce petition in Australia. It is pertinent to mention here that the Ld. Federal Court has failed to appreciate the fact that the respondent from the very beginning, has misrepresented and suppressed the material facts from the court and even to strengthen his Divorce petition also misrepresented in the Federal Court of Australia that he intends to live indefinitely in Australia.(J)To the utter shock and surprise of the appellant, the appellant has recently came [sic] to know that the respondent does not reside in Victoria & intends to leave Australia, which clearly indicates the malafide and notorious intention of the respondent as he is using the Australian Courts for his own convenience and hence on this ground alone the judgment passed by the Federal Court of Australia is liable to be set aside.(K)Because the Ld. Federal Court of Australia has failed to appreciate the fact that the[sic] India is not a signatory to Hague convention on Divorce and thus the decree of Divorce passed by Australian court has no bearing in India.(L)Because the Ld. Federal Court of Australia has failed to appreciate that the marriage solemnized between Sikhs in Sikh Temples even in Australia is governed under the basic principals [sic] of Hindu Law. Thus the judgment passed by the Federal Court of Australia is liable to be set aside as the appellant is aggrieved due to infringement of her fundamental and religious rights which needs to be protected in all respect as the appellant belongs to a minority community in Australia.(M)Because the Ld. Federal Court of Australia has failed to consider the vital fact while passing the impugned Judgment that the same will result in a hammer stroke to the appellant as the impugned judgment in multiplicity of the litigations between the parties and also become a hurdle in the progress of the litigations filed by the appellant against the respondent in India. It is also pleaded that the appellant will be over burdened Psychologically & financially due to impugned judgment passed by the Ld. Federal Court of Australia since appellant will have to start another litigation in India for declaring the divorce passed by Australian Court null and void.(The wife’s emphasis)
Ratio Decidendi
Legal Principle Established
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