Dane & Kabrig
[2013] FamCAFC 113
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 the matter for hearing. One of the orders I made was as follows:
…
3.The appellant file and serve a written summary of argument and list of authorities, if any, on or before the close of business on Friday
2 November 2012.…
As a result of non-compliance by the wife with this order I called the matter on for directions on 19 November 2012. At that hearing the wife asked that I treat the content of her Notice of Appeal filed on 25 May 2012 as her summary of argument. The husband’s counsel did not oppose that request, but indicated that at the hearing of the appeal he proposed to make an oral application for its dismissal, and in the event that the appeal was dismissed, for costs.
In these circumstances I made an order that the wife’s Notice of Appeal be treated as her summary of argument. However, I put the wife on notice that it was a matter for me to determine at the hearing of the appeal on 29 November 2012, whether or not there was sufficient there for the appeal to be successful.
Background
The parties married in India in September 2004 and separated on or about 16 July 2008.
There are no children of the marriage.
The husband moved from India to Australia in June 2002. He subsequently returned to India where the parties married and they then came to Australia as a couple in late 2004.
The wife took out Australian citizenship in 2008, and the husband in 2009.
On 27 January 2012 the husband filed an application for divorce.
The wife filed a response on 9 March 2012 opposing the application on the basis that the parties were married in India pursuant to the Hindu Marriage Act 1955 and any divorce granted in Australia would not be recognised in India.
The wife filed an affidavit in support of her case on 2 April 2012, and the husband filed his affidavit on 27 April 2012.
On 1 May 2012 his Honour heard the contested divorce application, delivered ex tempore reasons for judgment and granted the divorce.
The reasons for judgment of the Federal Magistrate
The Federal Magistrate commenced his reasons for judgment by finding that “the relevant factual basis for a divorce under Australian law [was] established”. Both parties were Australian citizens, they lived and worked in Australia, and the husband had “real property” in Australia. The wife intimated that she may return to India but there was no evidence of any “clear or present plans”.
The wife opposed the application on the basis that the parties were married in India pursuant to the Hindu Marriage Act 1955 and as a result any divorce granted in Australia would not be recognised in India. She also asserted that she had commenced other legal proceedings in India which involved allegations of domestic violence by the husband, and matters concerning dowry and jewellery. His Honour noted that not all the matters the subject of the Indian proceedings “would have occurred in Australia”, with the exception of the assault alleged to have taken place at separation.
His Honour identified the question that he had to determine as “whether or not [he] should allow the divorce proceedings to proceed in Australia or stay the divorce proceedings in Australia and require the parties to bring their divorce proceedings in India”.
His Honour recognised that, “[t]he strongest point in the wife’s case is the claim that an Australian divorce order would not be recognised under the law of India as a result of the impact of the Hindu Marriage Act, coupled with the failure of the state of India to enter into the Hague Convention with respect to the recognition of divorces”. In the end result though his Honour found that the parties lived and worked in Australia, and on the evidence before him would be “likely to continue” to do so. Further, his Honour found that the parties had “chosen to live their lives under the protection of the Australian law and subject to the obligations that Australian law imposes upon them.” The proceedings were able to be brought in Australia, but it was his Honour’s view that the wife had “brought proceedings in India as she believes she is likely to obtain some advantages there rather than pursuing proceedings here in Australia where the parties live and work”.
Crucially, his Honour found that it could not be said that Australia is a clearly inappropriate forum to hear the divorce application in light of the parties’ living and working arrangements, and went so far as to say that “there would be a strong case that India would be a clearly inappropriate forum in a case such as this”.
His Honour found that the fact that an Australian divorce order may not be recognised in India was not significant because the parties were living in Australia and able to obtain ancillary relief here. It might have been different though if they were living in India.
In the circumstances his Honour refused to stay the proceedings commenting that although “many jurisdictions around the world refuse to recognise court orders from other jurisdictions, … such a refusal cannot of itself be a proper basis for denying a citizen of Australia who is living here their rights and benefits under Australian law properly applied”.
Grounds of appeal and orders sought
The wife set out her grounds of appeal in her Notice of Appeal filed on
25 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)
The orders sought by the wife in her Notice of Appeal are as follows:
1.Setting Aside of Orders Dated 01 May 2012 With exemplary costs to be paid by the respondent.
2. Respondent should be directed to approach appropriate forum.
It is readily apparent that these grounds of appeal do not comprise proper grounds of appeal, but rather a combination of assertions and evidence. Ironically, they are also more in the form of a summary of argument than grounds of appeal, and that is one reason why I made the order that I did at the earlier directions hearing.
The difficulty of course is in extracting from this narrative the complaints that need to be addressed. Later in these reasons I identify and deal with those complaints.
Relevant statute law
The court’s jurisdiction is found in s 39 of the Family Law Act 1975 (Cth) (“the Act”) as follows:
…
(3)Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order if filed in a court, either party to the marriage:
(a)is an Australian citizen;
(b)is domiciled in Australia; or
(c)is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.
Section 48 of the Act provides for the one ground of divorce as follows:
48Divorce
(1)An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
(2)Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.
(3)A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
Discussion
His Honour correctly found that the relevant factual basis for a divorce under Australian law was established. The court had the jurisdiction to grant the divorce and the ground was established.
As his Honour recognised, the central issue in dispute was one of forum non conveniens. In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 the High Court held that the test to be applied when a party to proceedings seeks a stay of those proceedings in order to permit the same matter to be determined in a foreign forum having the necessary jurisdiction is whether or not the chosen forum (in this case Australia) is a “clearly inappropriate forum”. In Henry v Henry (1996) FLC 92-685 that test was held by the High Court to be the test to be applied to proceedings for a decree of dissolution of marriage under the Act.
For the reasons amply expressed by his Honour, Australia is clearly not an inappropriate forum, and there is no error here by the Federal Magistrate.
The wife of course says that jurisdiction should not be exercised because the divorce order may not be recognised in India. However, I agree with
his Honour that even if there can be no recognition in India, that cannot and should not prevent the husband here from exercising his rights under Australian law. The parties live and work in Australia and not India, and they are both Australian citizens with the husband having property here.
The wife also suggests that the fact of there being other legal proceedings in India should have also led his Honour to stay the proceedings. However, those proceedings were not proceedings for divorce, and I can see no basis for the presence of those proceedings preventing the Federal Magistrate from making the divorce order pursuant to the laws of Australia.
The wife further claims that the husband should not be permitted to obtain a divorce in Australia because he had failed to reveal that there were other proceedings in India. However, both parties gave evidence as to the existence of the Indian proceedings, and the issue was clearly brought to his Honour’s attention. His Honour then dealt with it in his reasons for judgment, and, I confirm, appropriately.
Conclusion
There is no merit in this appeal and it must be dismissed.
Costs
At the conclusion of the hearing I sought submissions as to costs.
If the appeal was unsuccessful counsel for the husband sought the husband’s costs of the appeal on an indemnity basis given the flawed nature of the appeal. Costs were sought in the total sum of $7,200 made up of $3,300 for solicitor’s fees, $3,850 for counsel fees, and an additional cost of $50 because the wife would not accept email service, and she had to be served physically.
The wife opposed any order for costs saying that she was in receipt of a Centrelink disability support benefit in the sum of approximately $700 per fortnight. She said she owns a motor vehicle, and currently resides in the former matrimonial home pending the finalisation of property settlement issues. That home is subject to a mortgage.
In response counsel for the husband asserted that there was equity in the vicinity of $300,000 in the former matrimonial home, a figure the wife did not cavil with. He also alleged that the wife ran a business or businesses and did not accept that she was in receipt of a Centrelink disability pension. In any event his position was that there was sufficient equity in the former matrimonial home to meet any order for costs.
Any application for costs whether in the context of an appeal or a first instance hearing is governed by s 117 of the Act. That section in so far as it is relevant provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
As is apparent the section provides that each party is to bear their own costs, but if the court is of the opinion that there are circumstances that justify it in doing so, it may make such order as to costs as it considers just. The court is directed to s 117(2A) which sets out the factors that the court should have regard to, when considering whether an order for costs should be made, and also what the quantum of that order should be.
The obvious circumstance here that justifies an order for costs is the fact that the appeal is to be dismissed, and thus the wife has been wholly unsuccessful in the proceedings. That allows for a costs order to be made, and I have no difficulty in so finding.
The next question is whether the financial circumstances of the parties, and specifically the wife here, would militate against an order for costs being made.
Although the wife only receives a disability support pension, the fact that property settlement issues have yet to be resolved and there is a home with an equity of $300,000 is sufficient for me to find that the financial circumstances of the parties, and specifically the wife, would not disincline me to exercise the discretion to award the husband his costs of the appeal if I was otherwise of the opinion required by s 117(2) of the Act. Indeed, there is ample Full Court authority that even impecuniosity is not a bar to an order for costs being made. The plain fact is that the husband has been put to cost and expense in instructing lawyers to meet an appeal brought by the wife which has turned out to be unsuccessful, and he should have those costs.
The next question is on what basis should the order for costs be made, namely, on a party/party basis or on an indemnity basis. The husband seeks that it be on the latter basis.
Pursuant to r 19.08(3) of the Family Law Rules 2004 (Cth) a party applying for an order for costs on an indemnity basis must inform the court if there is a costs agreement, and, if so, the terms of the costs agreement. The husband failed to comply with this sub-rule, but more importantly, to obtain an indemnity costs order the court has to be satisfied that there are exceptional circumstances here. That requirement stems from the oft-quoted decision of Shepherd J in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225. That decision has been followed in a number of Full Court cases in this court including Kohan and Kohan (1993) FLC 92-340, Yunghanns v Yunghanns (2000) FLC 93-029, and D & D (Costs) (No 2) (2010) FLC 93-435, and the principle has not changed.
Here I am not satisfied that there are exceptional circumstances. I have to take into account that the wife has been without legal representation, and although she has clearly taken the time and trouble to research the issues, her lack of legal expertise has told in the end. She has been misguided in the Notice of Appeal that she has filed. However, there is nothing unusual or exceptional about these circumstances.
Thus, costs will be on a party/party basis, but I propose to allow the wife four months in which to pay the amount. I am not aware of the stage the parties have reached in sorting out a property settlement, but that period may allow that issue to be finalised before payment is due to be made. However, I hasten to add that my order is not conditional upon that issue being finalised.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
2 August 2013.
Associate:
Date: 2 August 2013
6
4
0