Desai & Desai
[2024] FedCFamC2F 470
•17 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Desai & Desai [2024] FedCFamC2F 470
File number: PAC 3972 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 17 April 2024 Catchwords: FAMILY LAW – Divorce – Forum non conveniens – Divorce order made. Legislation: Family Law Act 1975 (Cth) ss 39, 48, 55 Cases cited: Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90
Deslandes & Deslandes [2015] FamCA 913
Navarro v Jurado (2010) 44 Fam LR 310
Division: Division 2 Family Law Number of paragraphs: 50 Date of hearing: 11 April 2024 Place: Parramatta Counsel for the Applicant: Mr Jackson Solicitor for the Applicant: Redline Legal Counsel for the Respondent: Ms McMahon Solicitor for the Respondent: Pannu Lawyers ORDERS
PAC 3972 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DESAI
Applicant
AND: MR DESAI
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
17 APRIL 2024
THE COURT ORDERS THAT:
1.A divorce order be made.
AND THE COURT NOTES THAT:
A.Pursuant to s 55 of the Family Law Act 1975 (Cth) the divorce order takes effect at the expiration of one month from the date of this Order.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
These are Reasons for Judgment in respect of divorce proceedings instituted by the wife and opposed by the husband.
BACKGROUND
The parties were married in Country B in 2013. There are no children of their relationship.
The parties relocated to Australia in 2019. The husband came to Sydney in 2019 under an Australian work visa from his Country B employer. The wife arrived in Sydney in 2019 on a dependency visa.
The parties resided together in Australia until early 2020, when the husband returned to Country B alone while the wife remained in Australia. This precipitated the breakdown of the parties’ relationship.
In mid-2021, the parties were both granted permanent residency in Australia.
In mid-2021, the wife filed a divorce application in Country B. The husband filed a counterclaim for restitution of conjugal rights under the Country B Marriage Act.
In late 2021, the husband returned to Australia.
In mid-2022, the wife withdrew her divorce application in Country B and accordingly the application was dismissed by the Country B court. The husband’s counterclaim remains on foot and is presently part heard.
On 21 July 2022, the wife filed an Application for Divorce in this Court.
In mid-2022, Local Court made a final Apprehended Domestic Violence Order (“ADVO”) for the wife’s protection against the husband for a period of 2 years.
MATERIAL RELIED UPON
The wife relied upon:
(a)Her affidavit filed 23 September 2022;
(b)Her affidavit filed 9 June 2023;
(c)Application for Divorce filed 21 July 2022;
(d)Affidavit of Mr C filed 12 May 2023;
(e)Written submissions.
The husband relied upon:
(a)His affidavit filed 8 December 2022;
(b)His affidavit filed 13 July 2023;
(c)His affidavit filed 10 April 2024;
(d)Amended Response to Divorce filed 12 September 2022;
(e)Affidavit of Mr C filed 12 May 2023.
JURISDICTION
The fact that the parties were married in Country B in accordance with Country B law does not of itself mean that the Australian courts will not have jurisdiction. This Court has jurisdiction in divorce proceedings if, on the date of the filing of the application, one or more of the subsections of s 39(3) of the Family Law Act 1975 (Cth) (“the Act”) are satisfied.
The wife contended, and the husband conceded, that on the date of the filing of the application by the wife, she was both domiciled and ordinarily resident in Australia and accordingly s 39(3)(b) and (c) of the Act were satisfied.
The husband sought a stay or dismissal of the proceedings on grounds of forum non conveniens. The wife contended, and the husband conceded, that the grounds for divorce under s 48 of the Act were clearly satisfied. Accordingly, unless the Court is persuaded to decline an exercise of jurisdiction, for example, by staying or dismissing the divorce application on inappropriate forum grounds, the Court has no discretion not to grant the divorce order: Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90 at [43].
CONSIDERATION
Forum non conveniens
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 serious and unjustified trouble and harassment”. (Navarro v Jurado (2010) 44 Fam LR 310 at [192]).
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)
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].
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.
The Court will now consider each factor in turn.
a) Factors of convenience and expense, such as the location of witnesses;
Both parties are currently present and reside in Australia, and are the only lay witnesses in the proceedings. There is a single expert on Country B matrimonial law, Mr C, who was not required for cross-examination.
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;
The husband conceded that this factor does not indicate that Australia is a clearly inappropriate forum. Both parties are fluent in English. The parties are both present before this Court.
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;
Each of the parties was born in Country B, and the marriage took place in Country B.
The wife has lived in Australia since 2019. She has worked in Australia on a full-time basis since 2019 and has obtained permanent residency. The husband is also a permanent resident. He has lived in Australia between late 2019 and early 2020 and from late 2021 to the present.
The Court reminds itself that the question at hand is not the comparative appropriateness of the available forums, but whether Australia is a clearly inappropriate form. Australia is not a clearly inappropriate forum on the basis that the parties lack sufficient connection to Australia.
In respect of relief, the husband is presently pursuing proceedings in Country B for restitution of conjugal rights. The Court has no significant evidence before it in relation to the nature of an application or order in Country B for restitution of conjugal rights, and the Court has no significant evidence before it as to what the issues are upon which relief in such an application in Country B might depend.
The remedy of divorce on the grounds of irretrievable breakdown of the marriage, on the basis of separation and thereafter having 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, is available to the wife in Australia: see s 48 of the Act. According to the Single Expert Mr C, irretrievable breakdown of marriage is not a ground for divorce under Country B law. Thus, it would appear that this ground for divorce may only be available to the wife in Australia.
d) Whether the other potential forum will recognise Australian Orders and vice-a-versa and the ease of enforcement in each country;
Again, this Court has no significant evidence before it in relation to the nature of an application or order in Country B 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.
In respect of the Australian proceedings, the parties each relied upon the expert report of Mr C, a Country B advocate who describes himself as “a designated Senior Counsel equivalent to the Queens Counsel of United Kingdom”. Mr C was engaged to give an opinion on the following matters:
(a)Whether a divorce order made by the Federal Circuit and Family Court of Australia would be recognised or considered valid in Country B;
(b)Whether, if this Court were to make a divorce order and the wife were subsequently to remarry, she could potentially be subject to bigamy proceedings in Country B.
In brief, Mr C opines that a divorce order made by this Court may not be recognised or considered as valid in Country B. He also opined, it would appear, as a corollary to that first opinion, that if the wife obtained a divorce order from this Court, she may be liable to bigamy proceedings in Country B if she later remarried.
The husband deposes that he intends to return to Country B to live. Relying on the opinion of Mr C, the husband submitted that the grant of a divorce order by this Court, if it were not recognised in Country B, would be productive of “serious mischief” of the kind described in Navarro (supra at 262), where the husband residing in Country B would be legally still married to the wife according to Country B law, while the wife residing in Australia would be divorced according to Australian law.
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 Country B for restitution of conjugal rights and then filing for divorce separately in Country B. There is no suggestion, on the evidence before this Court, that if the husband was to file an application for divorce separately in Country B, 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 [Country B] courts, apparently because there exists no treaty or convention between [Country B] 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 [Country B] anyway. …
In any event, there is no evidence that the wife intends to return to Country B whether to live, remarry, or otherwise; the evidence is that the wife does not have any intention to return to Country B 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 Country B.
e) Which forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy;
It was submitted by the husband that the potential requirement for the parties to file separately for divorce in Country B, if a divorce order of this Court were not recognised, would result in a doubling-up of resources. It was submitted that it would have been more effective for the wife to have maintained her prior divorce application in Country B so that her application and the husband’s counterclaim could be dealt with together. The evidence before the Court is deficient in relation to those matters.
As it stands, there is presently no application for divorce on foot in Country B. The only divorce proceedings are those in this Court, and this Court is able to promptly resolve that controversy in circumstances where there is both jurisdiction and grounds to grant a divorce.
f) The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;
The wife’s (previous) application for divorce in Country B, the husband’s counterclaim seeking a restitution of conjugal rights, and the withdrawal and dismissal of the wife’s application for divorce in Country B, all pre-date the divorce proceedings in this Court (which were commenced in 2022 by the wife). The husband’s counterclaim for restitution of conjugal rights is presently part heard.
The husband deposes to having incurred about $3,000 in relation to the wife’s Country B divorce application, about $6,000 in relation to an unsuccessful appeal in respect of a failed anti-suit injunction he sought in Country B relating to these proceedings, and about $3,000 for notary and courier charges.
g) The governing law of the dispute;
The determination of the current dispute relating to forum non conveniens involves consideration of ss 39 and 48 of the Act, and the legal principles relating to a stay or dismissal of applications on the basis of clearly inappropriate forum.
The affidavit of Mr C sets out some aspects of the Country B Marriage Act and other legislation and case law pertaining to divorce in Country B.
The Court has before it no significant evidence as to the law governing the determination of the husband’s application for restitution of conjugal rights in Country B, and again, it has no significant evidence before it in relation to the nature of an application or order in Country B for restitution of conjugal rights.
h) The place of residence of the parties;
The parties both reside in Australia.
i) The availability of an alternative forum;
The wife’s application for divorce in Country B has been dismissed, on her application.
The husband in Country B has made an application for restitution of conjugal rights which presently is being opposed by the wife (to date, she herself has appeared electronically from Australia in those Country B proceedings). There is no significant evidence before the Court as to why the wife has defended those proceedings to date.
The husband opposes a divorce being ordered by this Court. Again, in theory, it would appear open to the husband to discontinue his application for restitution of conjugal rights in Country B and then make an application for divorce in Country B; it would appear that he may well be able to take these steps even if this Court presently made a divorce order as sought by the wife (see the opinion of Mr C stating that a divorce order made in this Court may not be recognised or considered as valid in Country B).
The Court observes that these proceedings do not involve parallel divorce proceedings in two different jurisdictions. It cannot be said that there are presently simultaneous proceedings in different countries with respect to the same controversy.
j) Any legitimate juridical advantage to litigating in either jurisdiction.
If it be the case that the husband’s claim in Country B for restitution of conjugal rights is one which is only available to him in Country B, then there is an advantage to him in litigating in that forum. However, in view of Mr C’s opinion that a divorce order made in this Court may not be recognised or considered as valid in Country B, it is difficult to see how the continuation of the divorce proceedings in this Court would prejudice his application for restoration of conjugal rights in Country B.
CONCLUSION
In view of the above discussed matters, the Court is of the view that Australia is not a clearly inappropriate forum in this case.
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 Country B for restitution of conjugal rights.
As outlined earlier in these Reasons, there is no dispute that the wife has satisfied the formal requirements for a divorce under the Act, and the Court finds that this is the case.
The Court makes a divorce order accordingly.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 17 April 2024
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