Desai & Desai
[2024] FedCFamC1A 170
•26 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Desai & Desai [2024] FedCFamC1A 170
Appeal from: Desai & Desai [2024] FedCFamC2F 470 Appeal number: NAA 118 of 2024 File number: PAC 3972 of 2022 Judgment of: ALDRIDGE J Date of judgment: 26 September 2024 Catchwords: FAMILY LAW – APPEAL – Appeal from divorce order – Where the appellant unsuccessfully contended Australia was an inappropriate forum and the proceedings should have been stayed – Where the respondent withdrew her divorce application in India and commenced proceedings in Australia – Where the appellant continues his application for resumption of conjugal rights in India – Grounds of appeal are broad and do not identify error – Appellant’s counsel made concessions at first instance which the appellant now ignores – Relevant factors considered – Findings open on the evidence – Decision not unreasonable or plainly wrong – Appeal dismissed – Appellant to pay the respondent’s costs. Legislation: Hindu Marriage Act 1955 (India) ss 13, 13B Cases cited: Bakshi v Mahanta (No 2) (2022) 367 FLR 177; [2022] FedCFamC1A 90
Henry v Henry (1996) 185 CLR 571; [1996] HCA 51
House v The King (1936) 55 CLR 499; [1936] HCA 40
Talwar & Sarai (2018) FLC 93-855; [2018] FamCAFC 152
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55
Number of paragraphs: 64 Date of hearing: 16 September 2024 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Strik Solicitor for the Respondent: Redline Legal ORDERS
NAA 118 of 2024
PAC 3972 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DESAI
Appellant
AND: MS DESAI
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
26 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $13,788.61 within 28 days.
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 the pseudonym Desai & Desai has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
This is an appeal from the making of a divorce order by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 17 April 2024.
The appellant, Mr Desai, had unsuccessfully contended that the proceedings should have been stayed because, having regard to all of the circumstances, which included existing concurrent proceedings in India, Australia was a clearly inappropriate forum in which to litigate the parties’ dispute. The appeal was opposed by the respondent, Ms Desai.
Each of the parties was born in India. They were married there in mid-2013. Each party is Hindu and the provisions of the Hindu Marriage Act 1955 (India) (“Hindu Marriage Act”), which I shall discuss shortly, apply to them.
BACKGROUND
The respondent arrived in Australia in late 2019 and has been permanently employed since late 2019. There was no evidence that she intended to return to live in India. The primary judge found, without challenge, that she has employment and friends here and considers Australia her home. She has been granted permanent residency (at [33]).
The appellant lived in Australia between late 2019 and early 2020. He returned in late 2021 and has lived here ever since.
The appellant too is a permanent resident in Australia, but he does not intend to remain in Australia. He said that he will return to India, where his friends and family live (appellant’s affidavit filed 13 July 2023, paragraph 10). In his oral submissions on the appeal, the appellant added that he will relocate when his current employment permits him to do so.
In mid-2021, the respondent commenced proceedings in the Family Court of India seeking a divorce. The appellant filed a response in early 2022 objecting to that divorce and seeking an order under the Hindu Marriage Act for restitution of conjugal rights.
The respondent filed a withdrawal in early July 2022 and her application for divorce was dismissed approximately two weeks later (respondent’s affidavit filed 9 June 2023, paragraphs 20–21).
An Application for Divorce was then filed in Australia in late July 2022.
In August 2022 the appellant filed an application in India seeking an injunction restraining the respondent from proceeding with or commencing any further action in any court outside of India. It was dismissed by October 2022.
An appeal against the dismissal was then filed by appellant and subsequently dismissed in November 2022.
The proceedings in India have continued and are yet to be resolved. For reasons which are unexplained, the respondent attended the Court in India in person on three occasions in August 2024 where she was cross-examined on an affidavit which she had previously sworn.
In July 2024, a judge of the Family Court of India made an ex parte injunction which restrained the respondent “from contracting second marriage till further orders” (Annexure “A” to the appellant’s affidavit filed 2 September 2024, p.10).
As is obvious, the last two events took place after the primary judge made the orders subject to this appeal. The respondent agreed that the appellant could rely on these matters as further evidence in this appeal and an order was made at the hearing accordingly.
The Hindu Marriage Act
Before turning to the grounds of appeal, it is useful to discuss the effect of the Hindu Marriage Act. It retains a fault-based system for divorce and separation is not of itself a ground. Subject to certain conditions, a divorce might be sought by consent (s 13B of the Hindu Marriage Act). One of the grounds for divorce is the failure of a party to restore conjugal rights within a year after the passing of a decree for restitution of conjugal rights in a proceeding between the parties (s 13(1A)(ii) of the Hindu Marriage Act).
As the primary judge pointed out, there was no significant evidence before the Court as to the nature of an application for the restitution of conjugal rights. The appellant informed me that the order would not be enforced in the sense that the respondent would not be required to live with him again, but would provide grounds for divorce if not voluntarily complied with by her, as already noted.
This appears not to be consistent with what the primary judge recorded as the submissions made to him as follows (although the appellant did suggest that he might have been misunderstood):
28.Again, this Court has no significant evidence before it in relation to the nature of an application or order in India for restitution of conjugal rights, and no significant evidence as to whether such an order could be recognised or enforced in Australia. If such an order would somehow require the parties to, as asserted by the husband, “continue living together and resume our relationship”, it is difficult to see how such an order would be enforceable in Australia.
The appellant agreed that he presently could seek a divorce in India on the grounds that the respondent had deserted him for a period of more than two years but said he did not wish to follow that course. It is likely that he could also obtain a divorce by consent if he wished to follow that course.
The appellant called expert evidence which opined that a divorce order made in Australia “may not” be recognised or considered as valid in India, at least as far as parties to which the Hindu Marriage Act applies (Expert Opinion annexed to the affidavit of Mr C filed 12 May 2024, paragraph 30).
The expert further said that a divorce order made in Australia, but not in India, may cause either party to be guilty of bigamy in India if they remarried.
Applicable legal principles
The primary judge identified the principles to be applied in determining whether the application for a divorce order should be stayed, as follows:
16.The principles applicable to the grant of a stay or dismissal of proceedings where it is contended that the local court is a clearly inappropriate forum were set out in the wife’s written submissions which the Court adopts:
17.The relevant general principle, expressed in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, and re-stated in Henry v Henry (1996) 135 ALR 564 at 576 is:
…a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment.
18. Accordingly, to grant the Respondent’s application, the Court:
…must find that a continuation of the divorce proceedings… “would be productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious in the sense of productive or [sic] serious and unjustified trouble and harassment”. (Navarro v Jurado (2010) 44 Fam LR 310 at [192]).
17.The Full Court said in Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90; 367 FLR 177:
51.Despite some earlier suggestion that the local court should engage in some analysis of the foreign litigation, it now appears settled that the focus is on the inappropriateness of the local court. The focus is not upon the appropriateness or comparative appropriateness of the foreign forum, but on assessing whether there are enough factors indicating that the local forum is clearly inappropriate, in which case a stay should be granted. Australian courts should not concern themselves with an assessment of the comparative procedural or other claims of the foreign forum. As Deane J put it in Oceanic Sun Line at 242, “the clear inappropriateness of the local forum may justify dismissal or a stay. The mere fact that some foreign tribunal would represent a ‘more appropriate’ forum will not”.
(Citations omitted)
18.The husband bears the onus of establishing that this Court is a clearly inappropriate forum: Bakshi & Mahanta (No 2), supra, at [52] referring to Navarro v Jurado (2010) 44 Fam LR 310 at [188].
19.In Deslandes & Deslandes [2015] FamCA 913, Kent J set out the factors relevant to the determination of whether Australia is a clearly inappropriate forum:
22.Whether or not Australia is a clearly inappropriate forum depends on an assessment of the following (non-exhaustive) factors (derived from Lord Goff’s factors in Spiliada) as approved of in Voth and as added to by Henry at 592-593:
a)Factors of convenience and expense, such as the location of witnesses;
b)Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing;
c)The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;
d)Whether the other potential forum will recognise Australian Orders and vice-a-versa and the ease of enforcement in each country;
e)Which forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy;
f)The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;
g) The governing law of the dispute;
h) The place of residence of the parties;
i)The availability of an alternative forum; and
j)Any legitimate juridical advantage to litigating in either jurisdiction.
That identification of the principles to be applied was not the subject of a ground of appeal.
His Honour then specifically considered all 10 matters raised by Kent J and concluded that:
47.In view of the above discussed matters, the Court is of the view that Australia is not a clearly inappropriate forum in this case.
48.The Court does not accept the submission for the husband that the wife is attempting to “forum shop”, or that the current proceedings are vexatious or oppressive or will work an injustice to the husband. There is no basis for the Court to find, as discussed above, that the grant of a divorce order in this Court will prejudice the husband’s application in India for restitution of conjugal rights.
The approach to an appeal in a case such as this was identified by the Full Court in Bakshi v Mahanta (No 2) (2022) 367 FLR 177 (“Bakshi”) as:
37.There is a strong presumption in favour of the primary judgment, and we must be satisfied it is clearly wrong before there is any appellate interference: Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627. As explained below, unlike many, if not most, judgments given in Division 2, the decision of the primary judge to grant a divorce order was not discretionary. On the other hand, his refusal to stay or dismiss the application for divorce on forum non conveniens grounds may be seen as a discretionary refusal to exercise a discretionary power: see below at [47]. In any event, this Court must undertake a real review of the primary judge’s decision: Fox v Percy (2003) 214 CLR 118 at [25]. But it should also be borne in mind, as Kiefel CJ and Keane J recently confirmed in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) [399 ALR 535] at [67], that it is no part of the function of an appellate court to reformulate the case a party seeks to make.
THE APPEAL
Ground 1 – The primary judge erred by failing to find that Australia was a clearly inappropriate forum, in circumstances where the marriage of the parties has taken place in India under the Hindu Marriage Act and where the parties have no children or property in Australia.
This is a broad ground indeed and does not identify error, other than perhaps to assert indirectly that the outcome was unreasonable or plainly wrong (House v The King (1936) 55 CLR 499).
In his Summary of Argument, the appellant referred to each of the ten factors considered by his Honour. It is not necessary to refer to each factor individually as the same submissions are often repeated. I will instead deal with the substance of the complaints instead.
It was submitted that his Honour did not consider that the appellant had spent a significant amount of money in India defending the claim for divorce and prosecuting his own claim for restitution of conjugal rights.
His Honour, in terms, did not do so. That is probably explained by the absence of submissions made to him to that effect. Indeed, in addressing whether the parties are able to participate in the respective jurisdictions on equal footing, the appellant’s lawyer conceded that “everybody is here today, so there’s not an issue with that” (Transcript 11 April 2024, p.15 lines 18–20). It is now not open to criticise a trial judge for not taking something into account which was expressly eschewed at the hearing or was not the subject of submissions.
Further, I am unable to see how the fact that the parties have chosen to spend money on litigation in India supports a finding that Australia is a clearly inappropriate forum. As the primary judge correctly observed, both parties are presently in Australia, both speak English and the only other witness, the expert, was not required for cross-examination.
The appellant then turned to the consideration of the connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend on in those jurisdictions. Again, although not noted by the primary judge, there was a concession from the appellant’s lawyer “that there’s nothing that will flow from it” (Transcript 11 April 2024, p.15 lines 21–22).
Ignoring that concession the appellant submitted:
·He had no links to Australia – other than his employment;
·The outcome if no stay is granted is that the parties will be regarded as divorced in Australia, but not in India;
·If either party remarries they will be considered guilty of bigamy in India; and
·The primary judge did not follow Talwar & Sarai (2018) FLC 93-855 (“Talwar”).
It is to be recalled that the appellant bore the onus of persuading the Court that Australia was a clearly inappropriate forum. In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, the High Court said (at 554):
First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised “with great care” or “extreme caution”.
As to the first point, the primary judge recorded, correctly, that the appellant is presently resident in Australia. In that limited sense, it makes proceedings in Australia less burdensome than if he was in India. An intention to return to India at some point in the future does not change that fact.
The effect of the expert’s evidence is that the divorce in Australia will most likely not be recognised in India, leading to the undesirable consequence that the parties would be divorced in one country but not in the other.
The primary judge discussed this at [29]–[31] and concluded that:
32.In the view of the Court, any such suggested “serious mischief” could, at least in theory, be likely cured by the husband discontinuing his application in [India] for restitution of conjugal rights and then filing for divorce separately in [India]. There is no suggestion, on the evidence before this Court, that if the husband was to file an application for divorce separately in [India], that the wife would resist such an application. The Court refers to Bakshi (supra) at [61]:
61.It is also true that the letter of advice suggested that the Australian divorce order would not be recognised in the Indian courts, apparently because there exists no treaty or convention between India and Australia about mutual recognition. …if it be assumed this is correct, it would hardly favour a conclusion that Division 2 was clearly an inappropriate forum, for the simple reason that it appears the parties would need to apply for orders dissolving the marriage in both Australia and India anyway. …
33.In any event, there is no evidence that the wife intends to return to [India] whether to live, remarry, or otherwise; the evidence is that the wife does not have any intention to return to [India] on a permanent basis, she has permanent residency in Australia having lived here since 2019, she has employment and friends here, she considers Australia her home, and if a divorce order is made in this Court she has no intention to make a separate application for divorce in [India].
Thus, the disadvantage of being divorced in Australia but not in India was taken into account but weighed against other factors.
The question of bigamy can easily be answered. The appellant could seek a divorce in India and remarry. The respondent is free to marry in Australia but could face difficulties if she did and then returned to India. There was no evidence to suggest either party was close to considering remarriage. Anyway, it would be his or her decision as to the course to be followed. It carries little weight on the issue as to whether Australia is a clearly inappropriate forum.
The appellant laid particular stress on what he described as the failure on the part of the primary judge to follow the decision of the Full Court in Talwar. It is necessary first to look at the salient facts in that decision because they are significantly different to this matter.
In that case, the parties married in India in August 2013. The husband returned to Australia on 7 September 2013. On 31 December 2013, the husband withdrew his sponsorship of the wife’s partner visa.
The wife arrived in Australia on 20 May 2014 but the husband refused to have anything to do with her. She returned to India on 11 August 2014.
As the Full Court recorded:
10.A number of proceedings have subsequently been instituted against the husband and his family in India. On 6 February 2015 the wife’s father made a criminal complaint with the police, alleging criminal breach of trust, cheating and that the husband and his family had unlawfully demanded a dowry from the wife’s family. Criminal charges pursuant to ss 34, 406, 420 and 498A of the Indian Penal Code 1860 (India) were brought sometime thereafter. Proceedings were also commenced against the husband and his family under the Dowry Prohibition Act 1961 (India) (“the Dowry Prohibition Act”). In those proceedings the wife asserts, amongst other things, that the husband and his family have unlawfully demanded a dowry from her and her family and have unlawfully retained gifts that were provided upon marriage. The wife has also filed a complaint against the husband under the Protection of Women from Domestic Violence Act 2005 (India) (“the Protection of Women Act”). None has been concluded.
Against the backdrop of that litigation, the husband filed a divorce application in the Federal Circuit and Family Court of Australia (Division 2) on 10 March 2017.
On 27 May 2017, a judge of the Family Court of India made an injunction restraining the husband from continuing his proceedings in Australia.
On 26 July 2017, an order for interim relief was made by the Metropolitan Magistrates Court granting the wife’s interim maintenance application. The husband appeared to have engaged in those proceedings via legal representatives.
There are two fundamental differences between these circumstances and those in the present case.
In Talwar the wife lived in India, whereas here both parties live in Australia.
In Talwar the husband was restrained from continuing the divorce proceedings by order of the Court in India. The Full Court regarded the injunction as “very significant” (at [61]). The failure of the primary judge to take the injunction into account was one of the errors that led to the appeal being allowed.
Here it was the exact opposite. The Family Court of India refused to grant an injunction restraining the wife from continuing divorce proceedings.
Further, whilst the appeal was allowed in Talwar, the application for a stay was remitted for rehearing. The Full Court did not impose a stay.
Thus, the ‘failure’ of the primary judge to follow Talwar, could not be described as erroneous.
The statements of principle in Talwar are, respectfully, unremarkable and entirely consistent with the other authorities that deal with this issue. The appellant relied on particular statements made by the Court which he says support his case. That is unsurprising when there are many factors to be considered, some of which point one way, some another.
The appellant put particular emphasis on the third paragraph of a quotation from the High Court decision in Henry v Henry (1996) 185 CLR 571 at 590-591, quoted by the Full Court as follows:
90.This is, in our opinion, consistent with the following passage in Henry at 590 – 591:
Foreign proceedings usually fall for consideration in a context in which they involve the same or related factual issues as those involved in the local proceedings, but not the same legal issue and, perhaps, not the same parties. Even in cases of that kind it may sometimes be appropriate to grant a temporary stay of the local proceedings to allow the factual issues to be determined in the other jurisdiction. There are more compelling considerations in favour of a stay of the local proceedings if, as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings and the proceedings are between the same parties and with respect to the same issue or controversy.
Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia. In Union Steamship Co of New Zealand Ltd v The Caradale, Dixon J observed of that latter situation that “[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration.” From the parties’ point of view, there is no less – perhaps, considerably more – inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.
It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
(Footnotes omitted)
This consideration would carry particular force if a divorce had been sought by either party in India. Here, each party has expressly declined to take that course with the wife having withdrawn her divorce proceedings in India prior to commencing the proceedings in Australia.
Finally, the consideration of parallel proceedings is powerful, but not determinative – see Bakshi at [50].
I can see no error as asserted.
Grounds 2–5
The remainder of the Summary of Argument essentially speaks to the above points.
The appellant’s oral submissions referred repeatedly to the difficulty of being married in one jurisdiction and not in another and the risk of bigamy.
The further evidence was relied upon to show that the respondent was participating in proceedings in India. The appellant drew my attention to a section on the wife’s Application for Divorce filed in Australia where she explained she withdrew her Indian divorce proceedings “[s]ince she wouldn’t be travelling to India anytime soon and is unable to attend the court for evidence”. It is not at all clear to me how that demonstrates the primary judge erred.
I do not see the relevance of the injunction restraining the wife from remarrying – it is simply the court in India refusing to recognise the divorce order, which is consistent with the evidence of the expert witness.
In short, the submission really contends that a different decision should have been made. That is not enough to establish error.
One further point should be made. The primary judge did not take into account the refusal of the Family Court of India to restrain the respondent from continuing the Australian divorce proceedings. It is, however, most significant. In considering whether these proceedings in Australia should continue in all the circumstance, it is an acceptance of the appropriateness of the proceedings. It would have been a powerful factor pointing to the refusal of the stay.
Disposition
No error on the part of the primary judge has been established. The decision was open on the material before the Court and cannot be described as unreasonable or plainly wrong.
The appeal will be dismissed.
COSTS
The appeal has been wholly unsuccessful. It is just in all of the circumstances that the appellant pay the respondent’s costs of the appeal fixed in the sum of $13,788.61.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 26 September 2024
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