Diamond & Diamond

[2024] FedCFamC1A 201

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Diamond & Diamond [2024] FedCFamC1A 201

Appeal from:

Diamond & Diamond [2024] FedCFamC2F 902

Appeal number:

NAA 173 of 2024

File number:

MLC 577 of 2024

Judgment of:

ALDRIDGE, AUSTIN & CARTER JJ

Date of judgment:

29 October 2024

Catchwords:

FAMILY LAW – APPEAL – Divorce – Where the wife appeals from a divorce order – Where the parties married in Country B and thereafter lived in Australia – Where the wife commenced proceedings in Country B against the husband and his family after the husband commenced proceedings in Australia – Where the primary judge found the Country B proceedings were not matrimonial in nature – Where the primary judge rejected the wife’s objection to forum – Where several grounds of appeal make assertions but do not plead appealable errors – Where the wife seeks leave to adduce further evidence – Where the wife’s affidavit and the affidavit of her Country B lawyer do not demonstrate error by the primary judge – Leave refused – Application dismissed – Appeal dismissed – No order as to costs.  

Legislation:

Family Law Act 1975 (Cth) Pts VII, VIII, ss 39, 48, 55, 55A, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35

Country B Marriage Act

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Bakshi v Mahanta (No 2) (2022) 367 FLR 177; [2022] FedCFamC1A 90

CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd (2017) 55 VR 62; [2017] VSCA 11

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Considine v Citicorp Australia Ltd [1981] 1 NSWLR 657

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

Henry v Henry (1996) 185 CLR 571; [1996] HCA 51

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305

Sfakianakis & Sfakianakis [2018] FamCAFC 185

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:

48

Date of hearing:

29 October 2024

Place:

Melbourne

The Appellant:

Litigant in person

Counsel for the Respondent:

Mr Oldham

Solicitor for the Respondent:

VDG Lawyers Pty Ltd

ORDERS

NAA 173 of 2024
MLC 577 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DIAMOND

Appellant

AND:

MR DIAMOND

Respondent

ORDER MADE BY:	ALDRIDGE, AUSTIN & CARTER JJ
DATE OF ORDER:	29 OCTOBER 2024

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 9 October 2024 is dismissed.

2.The Notice of Appeal filed on 8 July 2024 is dismissed.

3.The respondent’s oral application for costs is dismissed.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Diamond & Diamond has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. This appeal, brought by the wife from a divorce order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 14 June 2024, should be dismissed.

   Background

2. The parties were born in Country B, but both are now Australian citizens.

3. They were married in 2017 in Country B, but they thereafter lived in Australia. They separated in December 2022.

4. In September 2023, the husband started proceedings in Australia under the Family Law Act 1975 (Cth) (“the Act”) seeking both parenting orders in respect of the parties’ children under Pt VII of the Act and property settlement orders under Pt VIII of the Act, which proceedings are still pending.

5. In January 2024, the husband filed an application for the parties’ divorce.

6. About a month later, in February 2024, the wife instituted proceedings in Country B against the husband and his parents, being criminal prosecutions and domestic violence injunctive proceedings. The wife adduced contradictory evidence about the nature of the Country B proceedings before the primary judge.

7. Initially the wife said this in her affidavit filed on 30 May 2024:

   2.The marital litigation between me and the [husband] is pending in Australia and [Country B].

   …

   5.I have initiated marital proceedings against the [husband] in [Country B].

   …

   19.The marital proceedings between me and the [husband] are already pending in [Country B] courts and the husband is well aware of the facts.

   (Emphasis added)

8. However, immediately thereafter, she deposed this in her affidavit:

   21.      Currently more than one proceeding are pending in [Country B].

   i.Criminal proceedings initiated by Government of [State C, Country B] through First Investigation Report…under sections [...] [Country B] Penal Code.

   ii.Complaint Case…under section [...] [Country B] Penal Code.

   Pending in the court of [named magistrate], next court date [...] August 2024.

   iii.Complaint Registration…under section [...] Read with sections [...] of the [Country B domestic violence legislation].

   Pending in the court of [named magistrate] at [City D], next court date [...] June 2024.

   (Emphasis added) (As per the original)

9. The wife annexed to her affidavit a statement supposedly compiled by the Country B lawyer who represented her in the Country B proceedings, which he said were “filed against [the husband] and his family”. Presumably in reliance upon the wife’s instructions, the lawyer alleged the husband and his family had “committed heinous offences” in Country B, in relation to which alleged conduct there were then three criminal cases pending in “[Country B] Criminal Courts”. Otherwise, the lawyer simply stated the parties were married under “[Country B] Law in [Country B]” and, if they sought a divorce, then the appropriate jurisdiction was a Country B court.

10. The wife’s initial assertion of having instituted “marital proceedings” in Country B was unverified by either any Country B process or the statement of her Country B lawyer.

11. The husband filed a rebuttal affidavit on 30 May 2024 confirming he had checked the online portal of the Country B court and verified two facts: first, the proceedings in Country B were not commenced until late-February 2024; and secondly, those proceedings were confined to criminal and domestic violence complaints. Documents to verify those facts were annexed to his affidavit, affirming the Country B proceedings were criminal prosecutions and a domestic violence application, thereby contradicting the wife’s unverified evidence of “marital proceedings”.

12. In the hearing before the primary judge, the lawyer representing the wife in the Australian divorce proceedings made this written submission:

    No formal divorce application is pending in [Country B].

    (Wife’s Written Submissions filed 11 June 2024, p.5)

13. The husband’s Australian divorce application was listed before the primary judge for hearing on 14 June 2024. Despite the absence of any competing foreign divorce or other form of matrimonial proceeding, the wife opposed and sought the dismissal of the husband’s divorce application, but alternatively, the stay of the divorce application until the proceedings she instituted in Country B were complete. Her objection to the exercise of jurisdiction under the Act was founded on the alleged proposition that Australia was a clearly inappropriate forum to determine the divorce application.

14. Without any expert evidence to verify it, the wife asserted Country B law required all matrimonial disputes in respect of parenting and property division to be resolved before any separate divorce proceeding could be commenced (at [13]). Even if that is so, how the Australian divorce proceeding was thereby compromised was not explained to his Honour.

15. Given the state of the evidence, the primary judge understandably found the Country B proceedings were not matrimonial in nature and certainly did not comprise a divorce application (at [7], [12] and [13]). The primary judge found the husband’s discrete divorce application enlivened jurisdiction under the Act and the wife’s submissions, which concerned the parties’ property, her beliefs about their planned future places of residence, and the pending Country B proceedings were irrelevant (at [15]–[19]). Nor did the primary judge pay any heed to the wife’s unverified submission that an Australian divorce order would not be recognised in Country B (at [20]–[25]).

16. Once jurisdiction under the Act to grant the divorce order was established and Australia was not a clearly inappropriate forum for the divorce application, there was no reason why the regularly invoked jurisdiction should not be exercised. The primary judge rejected the wife’s objection to forum (at [26]–[27]) and then made the divorce order upon proof of the statutory pre-conditions by the husband (at [29]–[34]).

    The appeal

17. The wife was self-represented in the appeal and her grounds of appeal are set out within the Notice of Appeal filed on 8 July 2024.

18. Grounds 1, 2 and 3 are not competent as they only make assertions and do not plead appealable errors, though they will be addressed all the same. This is an appeal by way of re-hearing, the success of which depends upon the demonstration of appealable error by the primary judge (Allesch v Maunz (2000) 203 CLR 172 at 179–181 and 187; CDJ v VAJ (1998) 197 CLR 172 at 201–202 and 233–234; Harris v Caladine (1991) 172 CLR 84 at 124–126). In the absence of appealable error, there is no scope for appellate interference.

19. Nor are Grounds 4 and 5 competent grounds of appeal. They are merely statements of the wife’s intention to file amended grounds of appeal and an application to adduce further evidence in the appeal. As it transpired, she did not amend the appeal but did file an application seeking permission to adduce as further evidence, pursuant to s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), her affidavit filed on 9 October 2024 and the affidavit of another Country B lawyer filed on 10 October 2024.

20. Without pausing to discuss the apparent failure to fulfil the pre-conditions to the admissibility of opinion evidence given by a single or adversarial expert, the wife’s new Country B lawyer (“the putative expert”) now represents her in Country B divorce proceedings she instituted after the Australian divorce order was made. Opinion evidence of the sort now afforded by the putative expert was not adduced before the primary judge. However, contrary to the wife’s expectations, such expert evidence would not have required the dismissal of the Australian divorce application at first instance and so does not now sustain the appeal, in which event it is rejected as further evidence in the appeal. The primary purpose of further evidence being admitted in an appeal is to demonstrate error by the primary judge and to show how its availability at the hearing would have produced a different result. If the proposed evidence does not acquit that purpose there is no utility in its admission (CDJ v VAJ at [109], [111], [140]–[151], [169] and [186.9]).

21. The putative expert confirms the Australian divorce order will not be recognised as being valid in Country B because the parties’ marriage was solemnised in Country B under the Country B Marriage Act and, if the divorce of a couple who married under that statute is to be recognised in Country B, Country B courts retain exclusive jurisdiction to grant the divorce order.

22. The putative expert neither expresses nor implies the invalidity of the Australia divorce order. Rather, the emphasis of his opinion evidence is upon the potentially adverse matrimonial consequences for the wife in Country B if the Australian divorce order stands and the parties are not divorced in Country B instead. The putative expert acknowledges it is possible to obtain a Country B divorce regardless of the existence of the Australian divorce order, for otherwise the wife would not have engaged him to separately commence divorce proceedings in Country B.

23. Leave to rely upon the wife’s affidavit should also be refused. First, she deposed she has since filed a Country B divorce application, but that only serves to emphasise the absence of any competing matrimonial proceedings in Country B when the Australian divorce order was granted. Secondly, she deposed the husband now admits the Australian divorce order will not be recognised as being valid in Country B, but his admission does not now impugn the validity of the divorce order and would not have foreclosed the validity of the divorce order at first instance. Thirdly, she deposed the primary judge rejected some admissible evidence at the hearing and, although his Honour did reject some evidence in line with the husband’s objection, there is no suggestion, much less a ground of appeal which asserts, the rejection of such evidence was erroneous. Fourthly, the wife alleged the husband’s misconduct of the litigation between them, but such allegations are irrelevant to the issue about the validity of the Australian divorce order. Lastly, the wife’s evidence about the operation and effect of Country B law is rejected as she lacks the expertise to give such evidence.

    Ground 1

24. This ground is pleaded as follows:

    1.The primary court was required to dismiss the divorce application on the ground that the divorce order if made by the Australian court will not be recognised in [Country B].

    i.The fact that [Country B] does not recognise an Australian divorce order was established from the material before the primary court. Alternatively, the primary court could seek an expert opinion on this issue.

    ii.The wife indicated the recognition issue through her certificate of readiness and sought appointment of an expert through her minutes of proposed orders.

    iii.The husband did not raise the recognition issue at all.

    iv.The husband did not deny the fact that [Country B] does not recognise the Australian divorce order.

    v.Admittedly, the parties are of [Country B] origin and the marriage was solemnised in [Country B]. Both parties are deeply connected with [Country B].

25. Leaving the five particulars to one side, which are partly inaccurate, but no more than gratuitous observations in any event, the point made by this ground is merely a re-statement of the submission made to and rejected by the primary judge. His Honour was certainly not “required” to dismiss the divorce application.

26. Even though the new putative expert opinion evidence upon which the wife wants to rely would prove Country B law will not recognise the Australian divorce order, the Australian divorce order is not vitiated by such foreign non-recognition. The Full Court has previously taken the same view in similar circumstances (Bakshi v Mahanta (No 2) (2022) 367 FLR 177 at [61]). The wife might be precluded from remarrying in Country B without a Country B divorce, but the Australian divorce order entitles her to remarry in Australia or in any other country which recognises the Australian divorce order. Even so, it is just a consideration to be taken into account and is not determinative. It carries less weight here because the parties have lived in Australia since 2017 and there was no evidence of any likely return to Country B.

27. The tenor of the putative expert’s evidence is that it would be more convenient and efficient for the wife to obtain the Country B divorce order if and once the Australian order is set aside. The putative expert deposed this in his affidavit:

    23.The divorce proceedings initiated by [the wife] in [Country B] may conclude in two monthssubject (sic) to appearance of [the husband] and continuous participation in the proceedings.

    24.If [the husband] does not participate continuously, matter will proceed ex-party and it may take 3 to 5 and more years to conclude.

    25.The other option for [the wife] to get recognise her Australain (sic) divorce in [Country B] is to give up all her and her children property and maintenance rights and give an unconditional consent to the divorce order made by the Australian court.

28. Regardless, the wife retains her rights under Pt VII and Pt VIII of the Act in respect of the parties’ children and their property, even if the Australian divorce order does complicate the resolution of her Country B affairs. Importantly though, this appeal entails an inquiry as to validity, not convenience. Nor was convenience a dispositive consideration for the primary judge when deciding the wife’s forum objection at first instance.

29. The wife alleged in her Summary of Argument that the proceedings she instituted in Country B were commenced in mid-January 2024 – not late February 2024 as the primary judge found – but that submission is rejected because it is not proven by the evidence adduced at first instance. Nor would it be proven by the further evidence the wife wanted to adduce in this appeal because neither she nor the putative expert deposes the Country B proceedings were commenced before late February 2024.  

30. As the evidence stands, when the husband filed his application for an Australian divorce on 19 January 2024, there were no pending proceedings of any sort in Country B. No Country B proceedings were commenced by the wife until late February 2024 and, even then, were not matrimonial in nature. It is still not clear when the wife later instituted the divorce proceedings in Country B, though it was not until after the Australian divorce order was granted, because the putative expert deposed this:

    15.[The wife] approached me for legal advice after the Federal Circuit and Family Court of Australia division 2, Melbourne, made an order on 14 June 2024 divorcing her marriage with [the husband].

    (As per the original)

    Ground 2

31. This ground is pleaded as follows:

    2.The divorce application was required to be dismissed on the ground the final divorce order if made by the Australian will not resolve all the issues to be adjudicated between the parties.

    i.The marriage between the parties included different [Country B] rites and to undo the effects of these rites only the [Country B] law can address the issues.

    ii.For example, [Country B] rite involves the families and relatives of the marrying parties as accepted by the husband through paragraph 4 of his affidavit 29/05/2024.

    (As per the original)

32. It is true the divorce order made by the primary judge does not “resolve all the issues” between the parties. It resolves only their divorce – at least in Australia and in any other country which recognises the Australian order. The divorce order will take effect one month from the determination of this appeal (s 55(3)(a) of the Act). It is simply wrong to assert the divorce application had to be dismissed because it would not resolve associated matrimonial disputes. The parties’ sundry disputes over their children and their property will be determined in due course when the separate causes of action under Pt VII and Pt VIII of the Act are heard.

    Ground 3

33. This ground is pleaded as follows:

    3.The primary court failed to appreciate that the husband came before the court with unclean hands as he concealed material facts from the court.

    i.The husband filed a false and misleading undertaking as to disclosure in the primary court.

    ii.The husband did not disclose his [Country B] assets and business.

    iii.The husband did not disclose that he was waiting for approval of his USA [Visa] application.

    iv.The husband wanted to usurp the huge financial advantages using the Australian jurisdiction.

1. The ground appears to be a collocation of discretionary and equitable concepts, which are inapposite and did not apply.

2. Doctrines and maxims of equity cannot be deployed to frustrate or negative the operation of a statute (Considine v Citicorp Australia Ltd [1981] 1 NSWLR 657 at 661–662; Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305 at [51]–[57]; CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd (2017) 55 VR 62 at [73]; Sfakianakis & Sfakianakis [2018] FamCAFC 185 at [37]). The decision to either grant or refuse a divorce application is not discretionary, as the satisfaction of the conditions enabling the grant of a divorce order (ss 39(3), 48 and 55A of the Act) requires evaluative factual findings. The conditions are either fulfilled or they are not.

3. So too the anterior question of whether Australia was a clearly inappropriate forum to entertain and decide the divorce application was evaluative, not discretionary, in nature because the question admits of only one correct answer: Australia either is or is not a clearly inappropriate forum. That point has been made by the Full Court before (Talwar & Sarai (2018) FLC 93-855 at [19] and [27]). While the answer to the question is influenced by numerous different considerations which are peculiar to the case at hand (Bakshi v Mahanta (No 2) at [37]–[47]), the decision is not truly discretionary because the law does not tolerate multiple correct answers, which is the hallmark of a discretionary decision (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [16] and [26]; Norbis v Norbis (1986) 161 CLR 513 at 518). The litigant who contends Australia is a clearly inappropriate forum bears the burden of proving it (Henry v Henry (1996) 185 CLR 571 at 579, 580 and 589; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 556, 564, 586 and 587) and if the burden is not discharged then the Australian proceedings are competent.

4. In respect of the four propositions which particularise the ground, the first is meaningless, the second and third are irrelevant, and the fourth is an assumption.

   Disposition

5. The application to adduce further evidence in the appeal should be dismissed.

6. The appeal should be dismissed.

7. I propose the following orders be made:

   (1)The Application in an Appeal filed on 9 October 2024 is dismissed.

   (2)The Notice of Appeal filed on 8 July 2024 is dismissed.

   CARTER J:

8. I agree with the reasons given by Austin J, and I also agree with the orders his Honour proposes.

   ALDRIDGE J:

9. I also agree, so the orders will be as proposed by Austin J.

10. Consequent upon the dismissal of the appeal, the respondent seeks an order that the appellant pay his costs in the sum of $7,742.58.

11. The general position under s 117 of the Act is that parties are to bear his or her own costs, unless the court considers that in all of the circumstances another order is just.

12. In the present case, the respondent relies upon the fact the appeal was wholly unsuccessful. However, while the appellant currently receives income, she has the care of the parties’ two children and is wearing the responsibility for the mortgage on the matrimonial home in which she lives. She has only started to receive child support within the last two months.

13. Taking these matters into account, I am of the view it is appropriate there be no order as to costs and propose an order to that effect.

    AUSTIN J:

14. I agree.

    CARTER J:

15. I agree.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justices Aldridge, Austin & Carter.

Associate:

Dated:       5 November 2024