Darvish & Karo (No 3)

Case [2024] FedCFamC2F 1046


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…

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AGLC
Darvish & Karo (No 3) [2024] FedCFamC2F 1046
Case
[2024] FedCFamC2F 1046
Decision Date

CaseChat Overview and Summary

Ms Darvish has brought proceedings against Mr Karo in the Federal Circuit and Family Court of Australia, seeking divorce, parenting, and property orders under the Family Law Act 1975 (Cth). Mr Karo has commenced three separate proceedings against Ms Darvish in a court in Country B, and seeks to have the Australian proceedings stayed on the basis that they are an inappropriate forum. Mr Karo has also challenged the jurisdiction of the Australian Court to hear the matter. The Court was required to decide whether the Australian Court had jurisdiction to hear the matter, whether it was an inappropriate forum, and whether the Australian proceedings should be stayed.

The Court dismissed the challenge to jurisdiction, finding that the Court had jurisdiction under the Family Law Act 1975 (Cth). The Court found that it was not an inappropriate forum, noting that the parties have a significant connection to Australia and the matter is capable of being heard in Australia. The Court also dismissed the application for a stay, finding that the Australian Court is the appropriate forum for the proceedings. The Court treated the application for divorce orders as also instituting proceedings for parenting and property orders. The Court ordered that Mr Karo is restrained from taking any further steps in the Country B proceedings, and directed the parties to file and serve amended applications and responses by specified dates. The Court fixed a directions hearing for 10 September 2024.

The Court noted that it would determine the application for costs under section 117 of the Family Law Act 1975 (Cth) in respect of the unsuccessful application and opposition by the respondent at the directions hearing on 10 September 2024. The Court granted leave to the parties to apply for consent orders to be made in chambers, if appropriate. The Court also noted that the form of the order is subject to the entry in the Court’s records, and that this copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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