Fareed & Chavan
[2025] FedCFamC2F 529
•28 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fareed & Chavan [2025] FedCFamC2F 529
File number(s): SYC 9967 of 2023 Judgment of: JUDGE STREET Date of judgment: 28 April 2025 Catchwords: FAMILY LAW – DIVORCE – stay of proceedings – prejudice to proceedings - not inappropriate forum - challenge to jurisdiction dismissed – response seeking a stay for dismissal – Divorce order made – wife undertaking - stay of order for 28 days and if appealed by wife – no order as to costs Legislation: Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90; 367 FLR 177:
Byquist & Ieri (No 2) [2024] FedCFamC1A 217
CSR Limited v Cigna Insurance Limited [1997] 189 CLR 345
Desai & Desai [2024] FedCFamC1A 170
Deslandes & Deslandes [2015] FamCA 913
Henry v Henry [1996] HCA 51; (1996) 135 ALR 564
Kent & Kent [2017] FamCAFC 157
Navarro v Jurado [2010] FamCAFC 210; (2010) 44 Fam LR 310
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538
Division: Division 2 Family Law Number of paragraphs: 131 Date of hearing: 25 October 2025 Counsel for the Applicant: Ms A Wallace Solicitor for the Applicant: DM Legal Australia Counsel for the Respondent: Mr J Bennett Solicitor for the Respondent: Proficient Legal ORDERS
SYC 9967 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FAREED
Applicant
AND: MS CHAVAN
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
28 APRIL 2025
THE COURT DECLARES THAT:
A.It is satisfied that there are proper arrangements in all the circumstances that have been made for the care, welfare and development of the child who has not yet obtained the age of 18 years.
THE COURT ORDERS THAT:
1.The Court makes a divorce order in relation to the marriage of the applicant and the respondent, which is to take effect by reason of s 55 of the Family Law Act 1975 (Cth) at the expiration of a period of one month from the making of this order.
2.The Court stays the declaration and order 1 for 28 days, and if a notice of appeal is filed by the respondent wife on the basis of the undertaking given to this Court to pursue the appeal with all reasonable diligence, the stay is to continue until the determination of the appeal or further order of the appellate Court.
3.The Court makes no order as to costs as between the parties.
4.The response seeking a stay or dismissal of the proceedings by the respondent 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).
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).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These divorce proceedings were commenced under Part VI of the Family Law Act 1975 (Cth) (“the Act”) on 29 December 2023, where the by the applicant husband (“the husband”) was seeking a divorce order. The husband was born in 1988 in Country B and the respondent wife (“the wife”) was born in 1989 in Country B. The husband is now a permanent resident of Australia, and the wife is now an Australian citizen.
The parties were married at Suburb C, Australia in 2016 and there is one child being, X (“the child”), born in 2022 of the marriage.
The husband gave evidence that the parties separated on 28 November 2022. The parties have not resumed an intimate relationship as husband and wife since 28 November 2022.
The Court finds that there has been an irretrievable breakdown of marriage between the husband and the wife, and that the parties have lived separately and apart for a continuous period of not less than 12 months immediately following the filing of the application for a divorce order.
After the commencement of these proceedings, the wife filed a response on 30 January 2024, seeking to dismiss the application for divorce. The wife’s response identified the commencement of property proceedings against the husband in the City D Court, Country B, in mid-2023. The wife identified that she and her child are entitled to a share of the husband’s ancestral property under Country B law. The wife identified that she commenced proceedings on behalf of herself and her child to safeguard their property rights in Country B. The wife contended that a finalisation of the divorce proceedings in Australia will give rise to the wife losing her claim over the husband's property in Country B, as she would not be deemed to be a coparcener for the purposes of partition of the husband's property in Country B.
The wife identified in her response that these divorce proceedings were commenced by the husband after she had commenced property proceedings against him in Country B in the City D Court of Country B in mid-2023. The wife also identified that there is a further civil matter that was filed by her in late 2023 against the husband in the City D Court of Country B, involving a transaction recorded in the Land Revenue Office by City E in mid-2023, allegedly impacting on the wife's share in the husband’s ancestral property in the sum of $15,000 and that such proceedings were commenced to avoid that transaction.
It is also alleged that the wife commenced criminal proceedings in late 2023 against the husband and his parents at the City D Court. The response identified that the wife instituted a third proceeding against the husband and his parents in relation to the ancestral property, and a record that was lodged with the Land Revenue Office of City E in mid-2023. The response alleges that a divorce order would be an unjust outcome for the wife by denying her right to property under existing Country B law and asks that the proceedings be dismissed.
Since the filing of the response, there was appointed a joint expert, Mr F, who provided a report on 18 October 2024 in relation to Country B law. The wife was given leave to rely upon the affidavit of a further legal expert, Mr G filed on 21 October 2024.
EVIDENCE
The following affidavits were read, with annexures treated as being in evidence.
(1)The Affidavit of Mr Fareed dated 25 August 2024.
(2)The Affidavit of Ms Chavan dated 23 August 2024.
(3)The Affidavit of Mr H dated 30 May 2024.
(4)The Affidavit of Mr G dated 21 October 2024.
EXHIBITS
The following exhibits were tendered into evidence in the proceedings:
(1)Exhibit A: Affidavit of Expert Mr F dated 15 October 2024.
(2)Exhibit B: Respondent’s Financial Statement dated 24 October 2024.
(3)Exhibit C: Respondent's tender bundle.
(4)Exhibit D: Undertaking dated 25 October 2024
CHRONOLOGY
Date Chronology 1988 Husband is born in Country B, aged 37 1989 Wife is born in Country B, aged 36. 2016 Parties marry in NSW, Australia. 2018 Wife becomes Australian citizen. 2021 Husband becomes a permanent resident of Australia. 2022 Child, X, is born in Australia. 28 November 2022 Agreed date of separation.
Husband leaves the home.Mid-2023 Wife commences property proceedings against husband in City D Court (Country B). Late 2023 Wife commences civil and criminal proceedings against the husband and his parents at City D Court (Country B). 29 December 2023 Husband files divorce application in Sydney. APPLICANT HUSBAND’S EVIDENCE
The husband deposed that he does not object to the parties date of separation being 28 November 2022. The husband noted that he previously declared the parties date of separation as at 20 December 2022.
The husband contended that despite the initial discrepancy in the parties’ date of separation the requirement of 12 months separation has been satisfied.
The husband identified that he instructed his solicitor to commence financial proceedings in Australia to settle the division of martial property.
The husband asserted that his solicitors have requested discovery of documents from the respondent and have received no response apart from an email form the respondents representative confirming that they do not have instructions to deal with the property proceedings.
The husband identified that the wife is an Australian citizen, that he is an Australian permanent resident, that the parties were married in Australia and that the parties child was born in Australia.
The husband deposed that the wife has not filed a divorce application along with the property proceedings in Country B.
The husband contended that it is more appropriate for the matter to be heard and resolved in Australia.
The husband identified that the wife filed a civil claim in Country B. The husband asserted that the civil matter is unrelated and does not affect the divorce application in Australia.
The husband alleged that the property proceedings in Country B will take several years to resolve and will result in him not able to re-marry.
The husband identified that there is one child to the relationship who lives with the wife. The husband further stated that he spends time with the child between 4:30pm and 8pm on weekdays and between 8 am and 8 pm on the weekends.
The husband deposed that he pays $530 per month in child support payments.
The husband identified that he seeks for the parties to share parental responsibility.
The husband asserted that the divorce proceedings in Australia will not impact on the property proceedings or the wife’s property rights in Country B. The husband expressed that he is willing to provide a partition of the property to the wife once the City D Court makes its decision.
The husband stated that the wife is entitled to a share of the martial property and alimony until partition of the property is completed and that the wife’s rights to property are protected irrespective of the jurisdiction in which the divorce is granted.
The husband gave oral evidence that the parties separated in November 2022 and that the wife commenced proceedings in Country B in mid-2023 and further proceedings late 2023. The husband acknowledged that at the time of filing the divorce application in December 2023 he was aware of the property, civil and criminal proceedings commenced by the wife in Country B.
The husband admitted that he did not provide substantive disclosure to the wife during proceedings. The husband rejected the proposition that a letter sent to the wife’s representatives regarding disclosure was to make it look like he was going to start property proceedings in Australia.
The husband denied initiating divorce proceedings in Australia to impact upon the property proceedings in Country B.
The husband admitted that neither him nor the wife have any significant real estate holdings in Australia and acknowledged that his parents have a property in Country B.
The husband denied having any knowledge of members of his family attending the Land Revenue Office in Country B in 2023 and making representations about the existence of coparceners entitled to receive property.
The husband denied that when filing the divorce proceedings, he thought that it would limit the wife’s ability to get property in Country B, as a coparcener.
RESPONDENT WIFE’S EVIDENCE
The wife identified that the parties were married in Australia in 2016.
The wife deposed that the parties have one child to the marriage, X, born in 2022.
The wife alleged that the parties separated on 28 November 2022.
The wife alleged that she is the primary parent and carer of the child.
The wife identified that she submitted a response to the Divorce application on 30 January 2024.
The wife stated that she was served by the husband’s representative and subsequently signed divorce documents on 4 January 2024.
The wife deposed that she did not know the implications of signing the Acknowledgement of Service.
The wife claimed that the husband failed to disclose two civil and one criminal matter, initiated by her in Country B, in his divorce application.
The wife identified that she has commenced property proceedings against the husband at the City D Court in Country B in mid-2023.
The wife stated that her legal representatives in Country B have advised her that the finalisation of the divorce application in Australia, will extinguish her right to claim an entitlement under Country B law in relation to ancestral property. The wife noted that the husband commenced divorce proceedings 6 months after she had commenced property proceedings in Country B.
The wife stated that she has also commenced a second civil proceeding against the husband in the City D Court in late 2023, seeking to void to void the official receipt of ancestral property as claimed by the husband and his parents before the Land Revenue Office, City E, Country B in mid-2023.
The wife deposed that the husband has mispresented to the Government Officials at the Land Revenue Office, City E, Country B that there are no coparceners for the purposes of partition of the husband’s ancestral property.
The wife identified herself and her child’s as relevant coparceners for the purposes of partition of the husband’s ancestral property in Country B.
The wife identified that she has commenced criminal proceedings against the husband and his parents in the City D Court in late 2023 for providing false or misleading information to the Country B government to extinguish her and her child’s claim over the husband’s share of his ancestral property.
The wife alleged that the husband instituted divorce proceedings to avoid the wife and child’s claims over his share of his ancestral property in Country B.
The wife requested that the divorce application be dismissed or stayed until the Country B proceedings are finalised.
The wife gave oral evidence that following the parties’ separation in November 2022 she remained in the parties’ rental home with the child. The wife acknowledged that following separation the husband paid the parties rent for approximately seven to eight months.
The wife admitted that she is not working, is in receipt of Centrelink payments and that the husband pays $540 per month in child support.
The wife acknowledged that the husband sees the child for one to two hours each weekday and purchases gifts for the child.
The wife acknowledged that the husband stays at the property in a separate room on Friday and Saturday nights to spend time with the child.
The wife admitted that she has a second bank account that she did not provide to the Court. The wife stated that she does not use the second account, and its only purpose is to transfer funds into from her primary account. The wife admitted that she transferred about $1,200 from her second account into her primary account.
The wife denied regularly transferring money from her second account.
The wife admitted that she never told the husband she intended to start the property proceedings in Country B.
The wife confirmed that it was her understanding that she and the parties child are each entitled to a third portion of the husband’s share in his parents’ property.
The wife acknowledged that she will be engaging in mediation with the husband’s parents in October 2024 to resolve the property proceedings.
The wife stated that her and her child’s respective one third entitlement in the husband’s ancestral property would be the equivalent of approximately two Country B currency units combined. The wife stated that while she was uncertain 1 currency unit would equal approximately $90,000 to $100,000 in Australian currency.
The wife admitted that she commenced criminal proceedings against the husband and his parents in Country B but denied that it was done so to assist her in her property proceedings.
The wife acknowledged that she has previously been married twice and did not commence property proceedings in relation to her ex-husband’s parent’s property.
The wife confirmed that she commenced three sets of proceedings in Country B, the first against the husband’s parents and the second and third against the husband and his parents.
The wife confirmed that she has not commenced divorce proceedings in Country B.
The wife admitted that when the husband left in November 2022 the parties had a discussion surrounding the husband wanting a divorce and the wife knew the husband wanted a divorce. However, the wife stated that she did not know from any communication with the husband that he was going to divorce her, and that she believed that he was going to return home despite packing his bags and leaving.
The wife acknowledged that the parties have not resumed a relationship as husband and wife. The wife noted that the parties ceased an intimate relationship in November 2022 when the husband left.
The wife stated that when she commenced her first proceedings against the husband, she was unaware that the husband would divorce her.
The wife admitted that the first proceedings seeking partition of the husband’s ancestral property were commenced by her to obtain the benefit of partition before the husband divorced her.
The wife agreed the husband became a permanent resident of Australia in 2021.
EVIDENCE OF MR H
Mr H identified that he is a practising lawyer in Country B.
Mr H stated that he represents the wife in proceedings in Country B, against the husband and his parents in relation to the partition of the ancestral property.
Mr H acknowledged that the proceedings were initiated in Country B to secure the wife and the parties child rights over the husband’s ancestral property in Country B.
Mr H deposed that the wife currently lives in Australia and has given power of Attorney to Ms J to act on her behalf in Country B.
EVIDENCE OF MR G
Mr G identified that he is a practising solicitor in the Supreme Court of Country B.
Mr G identified that he was instructed by the wife to review the expert report provided by Mr F, including providing an opinion on the report and consider whether the report reflects on Country B law governing partition and divorce.
Mr G asserted that he does not agree with the conclusions of the report provided by Mr F asserting that it does not comprehensively address Country B law governing partition and divorce.
Mr G posits that no relevant matters have been omitted in the report, except those stated in the report.
Mr G contends that the facts in the report are true and that his opinions are made independently and impartially.
Mr G acknowledged that he has complied with his duty to the court.
Mr G gave oral evidence that if there is a divorce between the husband and wife, that the wife is not regarded as coparcener, and will not have a right to claim partition of the ancestral property.
Mr G acknowledged that foreign divorces are recognised in Country B.
Mr G acknowledged that Country B law mentions that for the purpose of property division that a husband, wife, father, mother, son and daughter are considered co-partitioners and that once a divorce is granted the wife will no longer be regarded as a family member or the wife of the husband and will lose her right to a property claim.
Mr G stated that if a divorce is granted in Australia, it will be recognised in Country B and the wife will not be entitled or have entitlements over the husband’s ancestral property.
Mr G noted that there is no clear legal basis or ground for the wife to receive an interest in the ancestral property as a coparcener after being divorced.
Mr G asserted that s 99 of the Country B civil codes should be read in its entirety referring to section 99(1) which states that there is no divorce without partition noting that in practise the Court will hear a matter relating to partition before executing a divorce. Mr G contended that section 99(5) of the Country B civil codes refers to the alimony that can be received before partition and a divorce are executed.
Mr G alleged that s 99(5) is a provision related to chapter 10 of the Country B civil codes and is applicable to partition.
Mr G stated that Country B Courts would not recognise a property judgment made by an Australian Court noting that in Country B there is a clear legal basis that property claims should be heard in Country B Court’s.
Mr G asserted that a wife is a person who is married with a celebration or legal marriage per section 67 of the Country B civil code. However, Mr G noted that Country B law does not clearly define who a husband or a wife are. Mr G further noted that the Country B civil code does not presume an ex-wife to be a wife.
EVIDENCE OF MR F
Mr F in giving oral evidence referred to his expert report marked exhibit A and asserted that the wife will still be entitled to her partition of the husband’s ancestral property even after a divorce is granted.
Mr F acknowledged that the wife commenced property proceedings in Country B that are in the process of mediation.
Mr F stated that divorces granted in Australia will be recognised in Country B.
Mr F stated even if a divorce is granted in Australia, it will not prejudice the wife’s property interests, as she has commenced proceedings in Country B that are registered with the Court.
Mr F stated that the wife’s property right as coparcener in the husband’s ancestral property is an inherent right that she will not lose if a divorce is granted.
Mr F accepted that section 99(5) of the Country B civil codes provides Country B Court’s jurisdiction to make an order for divorce before granting partition to coparceners. Mr F further stated that the wife can claim alimony for the property
Mr F agreed that s 99(5) is a provision related to chapter 10 of the Country B civil codes.
Mr F asserted that because the wife has commenced property proceedings in Country B a divorce in Australia will have no effect on her property interests as the matter has been registered
Mr F agreed that Country B Courts would not recognise a property judgment made by an Australian Court and that in Country B there is a clear legal basis that property claims should be heard in Country B Court’s.
Mr F stated that there is no definition for wife or husband in Country B law.
Mr F disagreed with Mr G noting that in his opinion an ex-wife qualifies as a wife within Country B law.
RELEVANT LEGAL PRINCIPLES
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] (“Voth”), as well as the principles in Kent & Kent [2017] FamCAFC 157 at [31].
As set out by Aldridge J in Desai & Desai [2024] FedCFamC1A 170, the relevant general principle, expressed in Voth, and re-stated in Henry v Henry [1996] HCA 51; (1996) 135 ALR 564 at 576 (“Henry”) 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.
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] FamCAFC 210; (2010) 44 Fam LR 310 at [192]).
The Full Court said in Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90; 367 FLR 177:
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”.
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 has also taken into account the observations of McCelland DCJ, Schonell and McNab JJ in Byquist & Ieri (No 2) [2024] FedCFamC1A 217.
The Court has also taken into account the principles under s 43 of the Marriage Act 1961 (Cth) (“the Marriage 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 Marriage Act.
FINDINGS AND CONCLUSIONS
The Court had the two foreign law experts, Mr G and Mr F, hot-tubbed so that their evidence could be taken at the same time and efficiently in respect of the alleged prejudice to the partition proceedings concerning the ancestral property by the wife in Country B. The Court also heard evidence from the husband, who was cross-examined, as was the wife.
In relation to the expert evidence, the Court notes that both experts impressed the Court in their endeavour to identify the relevant principles of Country B law that may be applied. The Court also had the benefit of translations of the relevant provisions of the Civil Code of Country B (“the Code”) which relevantly included:
Section 99:
(1) If divorce is to be effected because of the husband, the concerned Court shall, if the wife so demands, cause partition to be effected between the husband and wife before effecting divorce
Section 205: To be deemed coparcener:
(1) For the purpose of appointment of a property in common, the husband, wife, father, mother, son, daughter shall be deemed to be coparceners, subject to the other Sections of this chapter
Section 209: To obtain partition share from part of father or husband:
(1) A son and daughter child or wives of brother living in an undivided family shall obtain partition share only from the part of their respective father or husband, as the case may be.
(2) If the husband, father or mother dies before effecting partition, his wife or his or her child shall obtain the partition share to which the husband, father or mother is entitled.
(3) If a person has more than one wife, they shall obtain their respective partition share only from the part of the husband.
Section 211: Right to obtain partition share:
(1) A husband, wife, father, mother, son and daughter having property in common shall make, according to their reputation and income, arrangements for the maintenance and medical treatment of the wife, husband, son, daughter, father and mother, as the case may be.
(2) If a person who is bound to make arrangements as referred to in sub-section (1) fails to make such arrangements, the coparcener is entitled to get separated by obtaining his or her partition share
Section 212: Separation may be effected at any time:
(1) If there is a mutual agreement between the coparcener, they may get separated at any time by obtaining their respective partition share.
(2) If the husband, father, mother or person acting as the head of family considers it appropriate for the coparcener to obtain their respective partition share and get separated rather than living in a single family, the coparcener may get separated by effecting partition at any time. Explanation: For the purposes of this Act, the ter. “person acting as the head of the family” means a person who is attained the age of majority pursuant to law and acts as the head of family or who has the responsibility to run the household affairs living in the joint family by engaging in farming, trade, business or any other work in various places.
In summary, the jointly appointed expert, Mr F, maintained that as the wife had commenced proceedings in Country B, her right to partition and obtaining the benefit of being a coparcener as a wife under the relevant Code would not be lost if a divorce order was made in Australia.
It was common ground between the experts that the divorce order if made by Australia would be given recognition and effect because of the provisions of the Code including s 706 which is as follows:
Divorce effected abroad to be recognised: if a divorce is effected between the citizens of [Country B] or between a citizen of [Country B] and a foreigner in a foreign country, such a divorce shall, if effected in accordance with the law of that country, be recognised and enforced in [Country B] in accordance with the law of [Country B].
There is no provision of the Code that gives effect to a foreign Court's order in respect of property situated in Country B, and there is no dispute between the experts that the principles in Country B would treat Country B property as governed by the Lex situs. Mr F properly acknowledged that there was some uncertainty in respect of the principle for which he contended, was the commencement of the proceedings by the wife which would preserve the entitlement of the wife to obtain the benefit of partition under the Code, notwithstanding the making of a divorce order in Australia.
Mr G identified the proposition that the change of who the partitioners might be after the proceedings would affect the proceedings. Mr G maintained whilst there was no definition of the meaning of "wife" in the Code, there were provisions in the Code that identified the nature and duties of those in a matrimonial relationship, maintaining that the term "wife" did not include a divorced wife, and that if a divorce order was made in Australia, the wife would cease to meet the criteria in the Code for the purpose of obtaining a partition as a coparcener in respect of the husband’s ancestral property.
The Court regards the terms of the Code in its limited recognition of a foreign divorce order and in its expressed terms concerning wife in respect of the partition rights to ultimately weigh all in favour of accepting the expert evidence of Mr G. Accordingly, the Court finds that if a divorce order is made in Australia, it is more likely than not that the wife will no longer meet the criteria under the Code to obtain a partition of the ancestral property under Country B law.
The husband gave evidence and was cross-examined about the sequence of the commencement of proceedings, and it was put to the husband that his dominant purpose in commencing the divorce proceedings was to prejudice the wife's proceedings in Country B. The husband denied that proposition. The Court regards the husband as a credible witness and accepts the husband's denial.
Further, it is apparent that the proceedings that were first commenced by the wife were ones against the parents of the husband as well as the husband, seeking a partition of the ancestral property. The Court finds those proceedings were commenced at a point of time when the wife knew that the husband wanted a divorce after leaving her after the birth of their child. The wife purported to deny that she was aware of the husband’s intention to divorce her. The wife’s evidence in that regard was not credible. The wife has been divorced twice before. The wife confirmed that there was no resumption of intimacy, and that the relationship had irretrievably broken down when the husband left in November 2022. The wife gave inconsistent answers in relation to the purpose of her proceedings, and her knowledge of the intention communicated to her by the husband to divorce her. The Court finds the wife was aware of the intention of the husband to divorce her at the time he left in November 2022.
Contrary to the characterisation identified in the response, the wife confirmed that the husband himself owns no property in Country B, a proposition also confirmed by the husband. The Court finds that the dominant purpose by the husband in commencing the proceedings was the legitimate purpose of obtaining a divorce in circumstances of the irretrievable breakdown of marriage. The Court does not accept that a purpose of the commencement of the divorce proceedings was to prejudice the wife's proceedings brought in Country B.
There was evidence led from the wife in relation to receiving child support from the husband, and also being in receipt of Centrelink benefits. The financial circumstances of both parties on the evidence before Court are parlous. The wife gave evidence that the potential value of the coparcener interest if partition occurred in Country B may be in the order of a hundred and eighty to two hundred thousand dollars, in respect of both her and the child’s one-third interests in the husband's potential interest in the ancestral property if a partitioning order was made.
The nature of the proceedings commenced in Country B are not the same as the proceedings before this Court for divorce. The Court received written submissions from both Counsel. Mr Bennett on behalf of the wife asked the Court to stay these proceedings as a clearly inappropriate forum on the basis that they are oppressive, in the Voth sense of the word, because of the prejudicial effect that a divorce order would have on the wife's entitlement to pursue the partition proceedings. Mr Bennett argued that, whilst the partition proceedings were not of themselves divorce proceedings, the nature of the proceedings might be seen as being family property proceedings similar to those that could be brought under the Act.
Australian law has no concept in family proceedings of making partition orders in favour of coparceners in respect of ancestral property not owned by the parties to the proceedings. Mr Bennett helpfully took the Court to the principles in the authorities, including in the majority judgment in CSR Limited v Cigna Insurance Limited [1997] 189 CLR 345 (“CSR”), the observation made by the Court at [401] which relevantly is as follows:
Proceedings which are brought for the dominant purpose of preventing another party from pursuing remedies available in the courts of another country and not available in this country are seriously and unfairly prejudicial and damaging. They are thus oppressive in the Voth sense of the word.
Whether these proceedings are ones in respect of which Australia is a clearly inappropriate forum are also the subject of observations in CSR at [391] which is as follows:
It is clear from the rationale of the exercise of the power to stay proceedings, and also from the words "oppressive", "vexatious" and "abuse of process" in Voth, and at least in Oceanic Sun, and in the cases considered in Oceanic Sun, including St Pierre v South American Stores (Gath & Chaves) Limited, that the power to stay proceedings on the grounds of formal inconvenience is an aspect of the inherent or implied power which, in the absence of statutory provision to the same effect, every Court must have to prevent its own processes being used to bring about injustice.
At paragraph 392 of CSR, the Court identified that the categories were not defined and closed, and that the power of the Court to grant an injunction must be exercised when the administration of justice so demands, and when necessary for the protection of the Court's own proceedings or processes.
At paragraph 393 of CSR, the Court identified that the mere co-existence of proceedings in different countries does not constitute vexation or oppression. There is the observation that an action going on simultaneously abroad which will give other or additional remedies beyond those attainable in the domestic forum does amount to vexation or oppression. However, this is not a case where there is a complete correspondence between the proceedings. The Court in CSR at paragraph 394 observed that:
Whether or not that is so, the equitable power to grant injunctions in restraint of litigation exists to serve equity and good conscience
The Court was also taken to paragraph 399 of CSR which is as follows:
It was held by this Court in Henry v Henry that, where proceedings are pending both in an Australian court and in a court of another country, it is necessary for the Australian court to have regard to the existence of the foreign proceedings in determining whether to stay its own proceedings on forum non conveniens grounds. In reaching that conclusion, the majority pointed out that, although it is not necessarily vexatious or oppressive 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 ... that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words".
The situation involved in the present case is not precisely the same as that considered in Henry v Henry. In that case, the parties were identical and the same subject-matter, namely, the parties' marital relationship, was involved in both proceedings.
Likewise, the situation in the present case does not involve identical subject matter in the foreign proceedings or all the same parties. The Court has also taken into account the observations made by the Court in CSR at the bottom of paragraph 400 under the heading nature of the test when the issues are not the same, where the Court stated:
In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are "productive of serious and unjustified trouble and harassment" or "seriously and unfairly burdensome, prejudicial or damaging"
Contrary to the submission of Mr Bennett, these are not proceedings in which it can be said were brought for the dominant purpose of preventing another party from pursuing remedies available in the Court of another country. The Court does, however, accept the proposition advanced by Mr Bennett that, even if it was not for the dominant purpose, the acceptance by the Court of the prejudice that the wife would follow engages the Court's discretion to determine whether or not an injunction should be granted on the basis of this Court being a clearly inappropriate forum.
In relation to those discretionary considerations, the Court has taken into account the following matters. First, the husband has no property in Country B. The husband is now an Australian resident. Secondly, the wife is now an Australian citizen, and her proceedings to partition were commenced after she was aware that the husband wished to obtain a divorce. Next, the Court accepts that the consequence of a divorce order in Australia is likely to be that the wife will not be able to further pursue the partition proceedings and will lose the potential benefit of a partition in the order of a hundred and eighty to two hundred thousand dollars, which is of significance given the parlous circumstances of the parties.
Next, the costs of these proceedings are ones in respect of which the divorce hearing has now been held, and the Court identified at the conclusion of oral argument the intention to reserve its reasons until 28 April 2025, as a result of this Court having a 10-year long service leave break, and to give the parties an opportunity to progress resolution of the proceedings in Country B. The Court was informed that there was a mediation to take place of the Country B proceedings in the following week, which may or may not give rise to the resolution of the proceedings that have been commenced by the wife.
Nonetheless, the three sets of foreign proceedings that have been commenced by the wife involve additional parties to the parties in these divorce proceedings and the Court finds that substantial costs are likely to be incurred in each of those proceedings, particularly given that the issue of the prejudice contended for successfully before this Court is likely to be agitated in the Country B Courts. Accordingly, the Court finds that the prejudice likely to be suffered by the wife if a divorce order is made in terms of the benefit of a partition in favour of herself and her daughter to a value of a hundred and eighty to two hundred thousand dollars is likely to be completely lost by the costs to be incurred by the parties who have parlous positions in the three sets of proceedings in Country B.
The Court has taken into account the notional entitlement to make adverse costs orders, and that costs orders if made might impact upon the ancestral property. However, on balance, the Court finds that the costs to be incurred as a result of the wife's three sets of proceedings in Country B, are likely to deplete substantially, if not in whole, the value of any benefit of a partition order that she may obtain for herself and her child. The husband and wife having married in Australia and residing as they do in Australia and having a child in Australia weighs in favour of this Court being an appropriate forum for the determination of the divorce, and, indeed, any parenting dispute, and if pursued, the alteration of property interests of the parties.
The Court has also taken into account the principles in s 43 of the Act. Ultimately, while the Court accepts that the wife will be exposed to a likely prejudice of being unable to pursue the partition proceedings if a divorce order is made, the Court finds that the proper characterisation of that prejudice is the loss of a forensic advantage that the wife sought to obtain after becoming aware that the husband wished to divorce her. In these circumstances, taking into account all the considerations, the Court is not satisfied that the loss of the forensic advantage of the Country B proceedings by the wife or the likely prejudice of not being able to obtain a partition order are oppressive in the Voth sense of the word. The Court finds that equity and good conscience does not require a stay of these divorce proceedings, and that the applicant is entitled to pursue his legal right to obtain a divorce order despite whatever consequences it may have in a foreign proceeding. The Court declines to grant a temporary stay until determination of the wife’s foreign proceedings. The Court has taken into account that the duration of those proceedings may take years. The Court declines the request to dismiss the proceedings for divorce.
The Court is not satisfied that this Court is a clearly inappropriate forum for the proceedings commenced for a divorce order. The Court finds, as a matter of discretion, that no stay of these proceedings on the grounds of clearly inappropriate forum should be granted. The Court finds that the husband is entitled to the making of a divorce order. The Court was informed of arrangements between the parties in relation to the child, that the child is regularly seeing the father, and that the father is paying child maintenance. On this basis, the Court finds in all the circumstances, proper arrangements have been made for the care, welfare and development of the child insofar as the parties are able to do so within the meaning of s 55A of the Act.
The Court accordingly is satisfied that the husband has made out the entitlement to a divorce order on the ground the marriage has irretrievably broken down. The Court is satisfied that there is no reasonable likelihood of cohabitation being resumed, and accordingly makes a divorce order to take effect within the period of one month of the making of this order under s 55 of the Act.
The Court notes before the conclusion of the proceedings the Court raised whether the wife may wish to pursue an appeal and whether or not a stay should be granted. The wife proffered an undertaking to pursue an appeal if filed within 28 days with all reasonable expedition, which was marked as exhibit D. In those circumstances, the husband did not contend that it would not be an inappropriate matter to permit the granting of a stay of the orders of the Court if a notice of appeal is filed within 28 days of the date of the orders of the Court, and for such stay to continue until the determination of the appeal on the basis of the wife’s undertaking to pursue the appeal with all reasonable diligence.
At the time of reserving, the Court also identified that the judgment would not be delivered until 28 April 2025 and would make orders permitting the parties to provide consent orders to be made in chambers if appropriate and encouraged the parties to seek to pursue a consensual resolution, particularly given the costs being incurred and that will be incurred by parties whose means are parlous. The Court also identified the potential issue as to costs, and neither party taking into account the financial circumstances of the other sought to maintain that an adverse order should be made under s 117 of the Act against the other party if unsuccessful.
It is for these reasons the Court makes the above orders.
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 28 April 2025
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