Darvish & Karo (No 3)
[2024] FedCFamC2F 1046
•26 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Darvish & Karo (No 3) [2024] FedCFamC2F 1046
File number(s): SYC 9053 of 2023 Judgment of: JUDGE STREET Date of judgment: 26 July 2024 Catchwords: FAMILY LAW – PROCEDURE - challenge to jurisdiction dismissed – clearly not inappropriate forum - application for a stay on the grounds of an inappropriate forum dismissed – application for instituting proceedings under Part VI of the Family Law Act 1975 (Cth) are by order also treated as instituting proceedings under Part VII and Part VIII – injunction under s 68B restraining proceedings in Country B. Legislation: Family Law Act 1975 (Cth)
Federal Circuit Court and Family Court of Australia Act 2021 (Cth)
Marriage Act 1961 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Henry v Henry [1995] 185 CLR 571
Kent & Kent [2017] FamCAFC 157
Talwar & Sarai [2018] FamCAFC 152
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538
Division: Division 2 Family Law Number of paragraphs: 26 Date of hearing: 26 July 2024 Place: Sydney Counsel for the Applicant: Ms S Mahony Solicitor for the Applicant: I & J Law Respondent: Appeared via video and audio link ORDERS
SYC 9053 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DARVISH
Applicant
AND: MR KARO
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
26 JULY 2024
THE COURT ORDERS THAT:
Final Orders
1.Subject to order 2, the respondent is restrained pursuant section 68B of the Family Law Act 1975 (Cth) from taking any further step in any of the three proceedings commenced by the respondent, Mr Karo, against the applicant, Ms Darvish, in the Country B Court or any steps seeking to enforce any orders obtained in any of those three proceedings.
2.Pursuant to section 68B of the Family Law Act 1975 (Cth) the respondent is to file a sealed copy of these orders in each of the three proceedings before the Country B Court.
INTERIM ORDERS, THE COURT ORDERS THAT:
3.The applicant’s application instituting proceedings under Part VI of the Family Law Act 1975 (Cth) for divorce orders are hereby treated as also instituting proceedings under Part VII for parenting orders and Part VIII for property orders of said act.
4.The respondent’s challenge to jurisdiction is dismissed.
5.The respondent’s application for a stay on the grounds of an inappropriate forum is dismissed.
6.The applicant is directed to file and serve an amended application on or before 9 August 2024.
7.The respondent is directed to filed and serve an amended response on or before 23 August 2024.
8.The applicant is directed to file and serve any submission and/or affidavit in support of costs which can be in short form on or before 9 August 2024.
9.The respondent is directed to file and serve any affidavit in answer to the application for costs and/or submission on or before 23 August 2024.
10.The matter is fixed for directions hearing commencing at 9:30am on 10 September 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
11.Liberty is granted to the parties to apply on three (3) days’ notice.
12.Leave is granted to the parties to provide consent orders to be made in chambers, if appropriate.
THE COURT NOTES THAT:
A.The Court will determine the application for costs under section 117 of the Family Law Act (Cth) in respect of the unsuccessful application and opposition by the respondent at the directions hearing on 10 September 2024 and if successful, will fix the amount of costs to be made.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were commenced under Part VI of the Family Law Act 1975 (Cth) (“the Act”) on 29 November 2023, where the applicant wife (“the wife”) was seeking a divorce order. The wife put on evidence identifying that separation occurred in April 2022 and that the respondent husband (“the husband”) moved to Country B in early 2022.
The marriage occurred in 2008 in a town in Country B, and there is one child, being X, born in 2016 (“the child”), of the marriage. The child has been living with the wife since the husband returned to Country B.
After the commencement of these proceedings, the husband filed a response on 7 February 2024, which sought to challenge this Court’s jurisdiction and asked for a stay. The husband has filed a number of other affidavits and filed an application which sought a stay for the alleged failure by the wife to comply with a notice to produce, which was filed on 18 July 2024. On 31 May, this Court made orders fixing the matter for hearing today and which gave the husband an opportunity to put on affidavit evidence including any expert evidence on or before 1 July 2024, however, the husband did not do so. The orders also required the filing of a case outline by 4 pm on 25 July 2024, however, the husband did not do so.
The chronology of the proceedings are as follows.
CHRONOLOGY
Date Event 1980 The husband is born in City G, Country B. 1987 The wife is born in City H, Country J. 2008 Marriage contract of the parties at Town L, Country B. 2008 The Registrar executes the marriage certificate of the parties. 2016 The child of the parties is born. April 2022 The husband moves to Country B. April 2022 An allegation of domestic violence is made against the husband. 23 April 2022 The parties separate in Australia, the wife left home with the child. 9 June 2022 A parenting plan is signed both parties which is in place until 1 February 2023. The child lives the wife and she has primary parental responsibility, encouraged video calls no less than one per week. 29 November 2023 The relevant date under s 39 for jurisdiction. Late 2023 An Application for divorce is filed by the wife with plans to make changes to the parenting arrangements and would like the husband to pay for child support. Late 2023 Alleged detention and interrogation of the husband in relation to City G Public Prosecution for entering the maternal grandfather’s house. Late 2023 The husband commences proceedings for custody for the child in the Country B Court. 2023 The husband remarries in Country B to Ms K. Early 2024 The husband commences two proceedings for divorce and visitation right. Early 2024 Purported service of notice of three proceedings filed by the father with the Country B Court. Early 2024 The husband made complaints to the Child Protection Service in relation to the welfare of the child. Early 2024 A purported acceptance of valid service of notice by judge of the Country B Court in Region M. Early 2024 The husband files a response to divorce, which sought dismissal of the divorce application. April 2024 Alleged last video contact between the husband and child. 31 May 2024 Order by Judge Boyle fixing matter for hearing, timetable for evidence 20 June 2024 Wife files consolidated affidavit (3 days late under order 2 made on 31 May 2024) 24 June 2024 The husband serves notice to produce 1 July 2024 Husband’s affidavit evidence including expert due, not filed under order 3 made on 31 May 2024 18 July 2024 The husband files application in a proceeding for vacation of hearing date, adjournment and production of documents
After dealing with the Application in a Proceeding dated 18 July 2024, the Court proceeded to hear the husband’s challenge to this Court’s jurisdiction. The kernel of the husband’s challenge to jurisdiction was his repeated assertion that any order made by this Court would not be recognised by Courts in Country B. No argument whatsoever was advanced as to why the provisions of this Court in relation to s 39 of the Act, which vests jurisdiction in a matrimonial cause as defined in s 4 of the Act, taken together with s 132 of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth), does not vest jurisdiction in respect of the divorce application that was filed in this Court. The proceedings under pt VI have been instituted by application in accordance with s 44(1) and have been instituted by one party to the marriage under s 44(1A) of Act.
Under s 39 of the Act, there is one criterion, relevantly, that one party has ordinarily been a resident in Australia and has been so resident one year. It is apparent that such criterion is satisfied by the wife. Further, it is apparent because of the provisions of pt VA of the Marriage Act 1961 (Cth) that the marriage that took place in 2008, as identified in the marriage certificate, is one that this Court would recognise, under s 88D of the Marriage Act 1961 (Cth), as being valid, given that the wife was not under 16 years of age.
The husband has vigorously asserted that a Court in Country B will not recognise any order made by this Court for divorce, that the parties will remain married, in his view, because of the absence of jurisdiction of this Court, or ineffectiveness of the jurisdiction of this Court, or the unwillingness of the foreign Courts to recognise the jurisdiction of this Court. There is not an iota of expert evidence put on by the husband to support his contentions. The assertions made by the husband in his affidavit are not ones that are founded on any relevant qualification by him to give opinion evidence upon foreign law. There is evidence that has been put on by a lawyer in Country B in respect of the law of Country B that does not support the contentions advanced by the husband.
Nothing that was advanced by the husband properly identifies any basis as to why this Court is not properly seized of jurisdiction in respect of the divorce application under Part VI that was filed on 29 November 2023. Accordingly, to the extent that, there was a challenge to jurisdiction of this Court, that challenge fails.
The husband also contended in his Response to Divorce dated early 2024 that Australia was a clearly inappropriate forum and after the commencement of these proceedings in Australia, the husband apparently commenced three sets of proceedings in Country B, one proceeding in late 2023 for custody and, two, purportedly commenced in early 2024 for divorce and visitation rights. It is apparent, on any view, that the first proceedings that were commenced were those by the wife.
In relation to the issue of whether Australia is a clearly inappropriate forum the Court has taken into account the law as identified in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 at [32] – [35], as well as the principles in Kent & Kent [2017] FamCAFC 157 at [31] and also the decision in Talwar & Sarai [2018] FamCAFC 152 at [24] – [25]. The Court has also had regard to the non-exhaustive factors identified in Henry v Henry [1995] 185 CLR 571 at 590 – 593. In considering whether or not Australia is a clearly inappropriate forum, from the evidence before the Court it appears that the wife wishes to pursue proceedings not just under pt VI of the Act, but also under pt VII and pt VIII of the Act.
In the course of the husband’s submissions, he identified a very alarming proposition that he has pursued, while these proceedings were on foot, proceedings in the Country B Court in Region M and has obtained custody orders in relation to the child who has been living in Australia for the last four years. No disclosure by the husband of the seeking of such custody orders appears in his affidavits. The Court is left with the clear impression that the husband has been seeking to delay these proceedings while he seeks to obtain some juristic advantage in respect of the proceedings that he has commenced in the Country B Court in Region M (“the Court in Country B”).
The wife’s solicitor asked the Court to make an order treating these proceedings that have been instituted in this Court under pt VI of the Act as also being instituted under pt VII and pt VIII of the said Act, so as to cover the field of property and parenting as well as divorce. It is apparent that the parenting plan that the parties had, has expired according to its terms on 1 February 2023. There is no current satisfactory position that has been identified in respect of the child. The apparent position that the father might have been pursuing proceedings in Country B for his advantage to obtain custody of the child while these proceedings are still on foot, is one that warrants this Court making the order sought by Ms Mahony that these proceedings instituted by application under pt VI of the Act should be treated as being instituted also under pt VII and pt VIII of the Act. The application filed by the wife instituting the proceedings meets the jurisdictional requirement under s44 that proceedings be instituted by application, as well as the requirement under s39 that a matrimonial cause may be instituted under this Act, and the breadth of the meaning of matrimonial cause and the meaning of proceedings in s 4(1) of the Act, as well as the jurisdiction picked up by s 4(3)(a) of the Act. The Court has taken into account the breadth of powers in r 1.31 and r 1.32 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The Court has taken into account the principles in s 43 of the Act, as well as s 60B, s 69ZN and the overarching purpose in s 95 of the Act and the breadth of power to make orders that the Court considers appropriate under s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), as well as the power to determine all matters in controversy in s 139 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The Court is satisfied that it is appropriate in the best interests of the child and in the interests of the administration of justice to make an order treating the proceedings instituted under Part VI by application as being treated as instituting proceedings under pt VII and pt VIII. Further under s 189 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the Court is of the opinion the proposed order causes no substantial injustice and that any express omission of reference to those parts in the application instituting proceedings in this Court by the wife can and in this case should be treated as a defect or irregularity that does not invalidate the consequences of the order now made.
In these circumstances where the Court makes an order treating these proceedings instituted by application under pt VI as also being treated as instituted by application under pt VII and pt VIII of the Act, and makes an order for the filing of an amended application. Accordingly, this Court is seized of the same subject matter as it appears has been invoked by the husband in Country B.
Given the location of the marriage and the place of birth of the child, the Court is willing to accept that the Country B Courts also have jurisdiction over the same subject matter. The issue that then arises is whether or not Australia is a clearly inappropriate forum so as to permit the proceedings to continue in Country B and to stay the proceedings in Australia. The Court raised with the husband that a corollary of the application he was making was that if he fails in his application for a stay of these proceedings, this Court would make orders under s 68B of the Act restraining the husband from taking any steps in the three proceedings he has taken in the Country B Court in Region M.
The factors advanced by the husband as to why Australia was a clearly inappropriate forum turned very much on the same proposition he had advanced in relation to jurisdiction. That was, the husband’s earnest contention that any order of this Court made for divorce would not be recognised in the Court in Country B, and that the parties would effectively remain married, and accordingly, this Court would be putting the parties to inconvenience and unnecessary further confusion, if this Court did not stay these proceedings so that the matter could be dealt with in the Court in Country B.
The first difficulty with the husband’s main argument is that he has no expert evidence to support such a proposition. The husband sought to challenge the expert evidence that had been put on by the wife through a solicitor in Country B, contending that the Courts in Country B would not recognise orders of this Court, and identified that he is seeking to make complaints to a professional body in respect of that solicitor. Putting to one side the potential vexatious nature of that observation by the respondent, there is not an iota of admissible evidence to support his contention that the Courts in Country B will not recognise the order made in Australia.
Insofar as the husband is concerned, he has chosen to return to Country B where he has been for the last two years. The wife has indicated she has no intention of returning to Country B, and wishes to raise the child, at this stage, it appears, in Australia. The Court was informed that the child may also have Country J citizenship. In either case, there is no expressed desire by the wife to return to Country B.
The other considerations, in respect of whether Australia is a clearly inappropriate forum, include the potential delay in the determination of the divorce proceedings. Curiously, the husband made assertions in his affidavits as to the possibility of reconciliation of the marriage. In his affidavits opposing this Court making such a divorce order, it appears to have been part of his desire to protract these proceedings while he pursues steps in the Court in Country B which have not been fully disclosed to this Court. Those steps taken by the husband are allegedly ones where he asserts, he has obtained a custody order. For a custody order to have been made would also be contrary to the expert evidence advanced by the wife through a solicitor in Country B and would be contrary to the best interests of the child. The wife has not been notified of pursuit of custody orders by the husband in those proceedings.
The divorce proceedings are listed for hearing today. There would be no further delay. The Court has been informed that delay in relation to divorce proceedings can take up to six years. It is apparent from the husband’s reference to the nature of the contract that he entered into, in respect of the marriage, that this Court can recognise, under the provisions of the Marriage Act 1961 (Cth) in pt VA, is one that does not prevent him having further unions. It is apparent on the evidence that the husband appears to have married another person in 2023 from the marriage certificate that was put into evidence.
In any event, the Court is satisfied in terms of expeditious disposition, that the matter can be determined today by this Court. There are also competing arguments about the ability to appear electronically. This Court has no hesitation in permitting parties to appear electronically, and indeed that is what the husband has done.
There are also issues advanced in relation to further costs. The husband contends that the divorce proceedings in Country B will involve very little cost or no further cost. It is apparent that the wife, being in Australia, has to retain foreign lawyers, which would be expensive, in relation to the divorce proceedings, if they continue, or the two other proceedings, if they were allowed to continue. Those costs are a further inconvenience to the wife.
The husband contends that his position is parlance. The husband has put on no affidavit properly identifying his assets and liabilities. The Court places little weight on his assertion as to his financial position, particularly given the conduct involving the pursuit, disclosed only today, of endeavouring to obtain a custody order in respect of the child. The Court is not satisfied that the Country B proceedings can be pursued more expeditiously, or more inexpensively, than the proceedings in Australia.
There are further disadvantages that the wife would face if the proceedings were to be pursued in Country B. They include the inability of the wife, who was born in Country J, to read Country B Language. The wife has identified that although she speaks it, she cannot read it, and she would need assistance by way of an interpreter or translator, in respect of the conduct of the proceedings in Country B. It is apparent that the husband has no such difficulty, in respect of the proceedings in this Court.
The Court has taken into account the principles under s 43 of the Act and the principles in s 60B and s 60CA of the Act, in terms of the best interest of the child, as well as s 65AA of the Act, and the principles in s 69Z of the Act, and the overarching purpose in s 95 of the Act. The Court has also taken into account the provision contained within s 45 of the Act. In all the circumstances the Court is satisfied that Australia is not a clearly inappropriate forum and that continuation of the proceedings in this Court is in the best interests of the child and best advance the interests of the administration of justice.
In all the circumstances the Court is satisfied that Australia is not a clearly inappropriate forum. In these circumstances the pursuit of the three sets of proceedings by the husband in the Court in Country B are on its face vexatious, covering the same subject matter as the subject of these proceedings given the order permitting these proceedings and the institution of them by application to be treated as including proceedings under pt VII and pt VIII of the Act. It also follows that the three proceedings in Country B are vexatious and should be stayed by injunction under 68B. The injunction should extend to any to steps to enforce purported orders in the said proceedings in Country B and to require a copy of these orders to be filed in the said proceedings. The Court considers the said injunctions to be appropriate for the welfare of the child, to be in the best interests of the child and to best advance the interests of the administration of justice.
Accordingly, the Court makes the above orders.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the oral published Reasons for Judgment of Judge Street. Associate:
Dated: 7 August 2024
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