GATTO & NORTON

[2012] FMCAfam 1175

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GATTO & NORTON [2012] FMCAfam 1175

FAMILY LAW – DIVORCE – Jurisdiction – whether Court should exercise jurisdiction – forum non conveniens – appropriate forum – whether clearly inappropriate forum – where parties were married in India – whether divorce proceedings should be heard in India or Australia – Australia is not a clearly inappropriate forum.  

Family Law Act 1975 (Cth), ss.39, 48, 55, 55A, 104
Hindu Marriage Act 1955 (India)
Special Marriage Act 1954 (India) ss.27, 28, 31, 34

Henry v Henry (1996) 185 CLR 571; 20 Fam LR 171; FLC 92-685
Jones v Dunkel (1959) 101 CLR 298
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Yunghanns v Yunghanns (1999) 24 Fam LR 400; FLC 92-836

Applicant: MR GATTO

Respondent: MS NORTON

File Number: SYC 8166 of 2010

Judgment of: Scarlett FM

Hearing date: 22 October 2012

Date of Last Submission: 22 October 2012

Delivered at: Sydney

Delivered on: 6 November 2012

REPRESENTATION

Solicitors for the Applicant: Armstrong Legal

Solicitors for the Respondent: Lukes Law

ORDERS

1. The Application for Divorce filed on 27 April 2012 is granted.

2. The Response to Divorce filed on 14 June 2012 is dismissed.

3. The Court finds that:

   (a)The parties were married [in] 2007 at [omitted] in India;

   (b)The Applicant is an Australian citizen domiciled in Australia;

   (c)The marriage between the parties has irretrievably broken down as the parties have separated and have thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the Application;

   (d)The Court makes a Divorce Order;

   (e)There is one child of the marriage under the age of 18 years to whom section 55A of the Family Law Act 1975 applies, [X], born [in] 2008;

   (f)The Court is satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of the child [X];

   (g)The Divorce order takes effect by force of section 55 of the Family Law Act 1975 at the expiration of a period of one (1) month from the date of this Order.

IT IS NOTED that publication of this judgment under the pseudonym Gatto & Norton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 8166 of 2010

MR GATTO

Applicant

And

MS NORTON

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for divorce brought by the husband. The Application is opposed by the wife on the basis that Australia is an inappropriate forum and that the parties should be divorced in India. She seeks that the Court either dismiss the Application or, in the alternative, stay the Application until the parties can make application and be granted a divorce in India.

Issues

1. The husband submits that the issues to be decided are:

   a)whether the Court has jurisdiction;

   b)if so, whether the husband is entitled to an exercise of jurisdiction in his favour (which involves a consideration of adjudicational facts after having found the existence of jurisdictional facts[1]); and

   c)whether the Court should decline to exercise its jurisdiction, by way of permanently staying the proceedings, on the ground of forum non conveniens.    

   [1] Yunghanns v Yunghanns (1999) 24 Fam LR 400; FLC 92-836 at [109] per Lindenmayer, Holden and Mullane JJ

2. The wife sets out the issues in this way:

   a)whether the law in India would recognise an Order for Divorce made under the Australian Family Law Act 1975; and

   b)if the Divorce Order would not have effect in India, the appropriateness of this Court granting the husband’s Application for a divorce.  

Background

1. The parties’ solicitors have each provided a useful chronology in their case outline documents. There is substantial agreement as to the facts.

2. The parties were both born in India, the husband [in] 1974 and the wife [in] 1975.

3. The husband commenced living permanently in Australia in June 2006.

4. The parties were married in [omitted], India, [in] 2007.

5. The wife moved to Australia in February 2008 to live with the husband.

6. The wife became pregnant and travelled to India in anticipation of giving birth.

7. The parties’ daughter [X] was born [in] 2008.

8. The wife returned to Australia with the child in February 2009.

9. The parties initially separated on 25 December 2009, when the wife moved out of the matrimonial home with the child. They separated on a final basis on 24 November 2010.

10. The husband commenced proceedings seeking parenting and other orders on 24 December 2010.

11. On 21 December 2011 a Registrar of the Court made final parenting and property Orders by consent.

12. The husband became an Australian citizen on 22 February 2012.

13. The husband filed an Application for Divorce on 27 April 2012, returnable on 14 June 2012.

14. The wife filed a Response to Divorce on 14 June in which she set out the following reasons why the Application for Divorce should be dismissed:

    1.  The parties’ marriage was registered as an arranged marriage under the Hindu Marriage Act in [omitted], India.

    2.  If the parties were to be divorced under the law of Australia it would not be recognised in the country of India and under the Hindu Marriage Act 1955.

    3.  If the parties are not also divorced in India then any subsequent marriage would be an offence in India under the Penal Code.

Evidence and Submissions

1. The husband relied on his affidavit sworn on 28 June 2012.

2. The wife relied on her affidavits affirmed on 14 June, 15 August and 8 October 2012.

3. Neither party was required for cross-examination.

4. The solicitors for the parties prepared detailed written submissions and spoke to those submissions.

5. There is no factual issue in contention between the parties.

6. The husband deposed that he regards Australia as his home and intends to live indefinitely in Australia. He is an Australian citizen. He has lived in Australia for the twelve months immediately prior to the filing of the Application for Divorce.[2]

   [2] Affidavit of Mr Gatto 28.6.2012 at paragraphs [15]-[17]

7. He deposed that there were parenting and property proceedings in this Court between the parties which were finalised by consent orders made by a Registrar on 21 December 2011.

8. The husband has this to say in his affidavit about the wife’s opposition to the Application for Divorce:

   31.    From reading paragraph 26 of [Ms Norton’s] Affidavit, I am aware that she seeks that I file an Application for Divorce in India.

   32.    To date, [Ms Norton] has not commenced any application for divorce in India or any other country. To date, [Ms Norton] has not filed any Application in this Honourable Court seeking to stay my Application for Divorce.

   33.    I am not certain of the process, the timeframe or the estimated costs of obtaining a Divorce in India. However, I say that such proceedings would be oppressive to me.

   34.    I do not have any intention to revel to India in the near future.[3]

   [3] Ibid at [31]-[34]

9. The husband has annexed to his affidavit copies of his Certificate of Citizenship and the consent orders in respect of the earlier parenting and property proceedings.

10. In her affidavit of 14 June 2012 the wife set out her reasons for opposing the divorce order being made by this Court:

    22…I am concerned that the Divorce in Australia that has been filed by the husband will not be accepted in India under the Hindu marriage Act. It would not be accepted to be registered in the “Divorce List” in India and I would still be considered married. If I therefore seek to again marry in the future, I am of the belief that it would not be recognised in India and in fact I would be committing an offence in India under the Penal Code by marrying another person without being properly divorced in that Country.

    23.    I believe that even if I was a joint applicant to this application this would not give rise to an Order that is binding upon the Indian Courts, to my understanding.

    24.    I am a permanent resident in Australia but am still an Indian National…[4]

    [4] Affidavit of Ms Norton 14.6.2012 at paragraphs [22]-[24]

11. The wife went on to depose:

    25.    I seek Orders that the Husband’s application be dismissed. In the alternative, I seek that the application be stayed pending the finalisation of the Husband making application for divorce, to which I would consent.

    26.    As it is the Husband who seeks the Divorce then I believe that he should be the one to make the application appropriately to the Courts in India.[5]

    [5] Ibid at [25]-[26]

12. The wife annexed various documents to her affidavit of 15 August 2012, including:

    a)a copy of the Hindu Marriage Act 1955;

    b)an excerpt of a chapter of book entitled “Marriage, Separation and Divorce”  by Asutosh Mookerjee, Fourth Edition, 2010;

    c)an excerpt of a chapter from the Third Edition of the same book; and

    d)an excerpt of a chapter from the book entitled “Civil Procedure” by Justice C.K. Thakker and Mrs M.C. Thakker.

13. In her affidavit of 8 October 2012 the wife corrected an error that had been made in her two earlier affidavits, saying:

    …I previously deposed that the marriage was registered under the Hindu Marriage Act and I have since found this to be incorrect. On a recent trip to India I met with the celebrant that performed the marriage ceremony. The marriage was actually solemnized under the Special Marriage Act 1954 and not the Hindu Marriage Act 1955.[6]

    [6] Affidavit of Ms Norton 8.10.2012 at [2]

14. The wife stated that whilst in India she made inquiries of a Marriage Officer named Ms S who gave her certain advice:

    I was told by Ms S and verily believe that I would be able to make application to the Court in [location omitted], where the Ceremony took place, despite not living in the Country of India. This is set out in Section 31 of the Special Marriage Act 1954[7].

    [7] Affidavit of Ms Norton 8.10.2012 at [6]

15. The wife annexed to her affidavit copies of two decisions of the Supreme Court of India and a decision of the Madras High Court.

16. In a detailed and carefully prepared written submission, the husband’s solicitor, Ms Marr submitted that this Court has jurisdiction under s.39 of the Family Law Act. Her submission was that the Court has jurisdiction under all three of the subsections of s.39 because:

    a)the husband is an Australian citizen;

    b)the husband is domiciled in Australia; and

    c)the husband is ordinarily resident in Australia and has been so resident for one year immediately preceding that date.

17. It is further submitted that, under subsection 48(1) of the Act, an application for a divorce under shall be based on the ground that the marriage has broken down irretrievably.

18. Under subsection 55A of the Act, a divorce order does not take effect unless the Court has, by order, declared that it is satisfied that the only children of the marriage who have not attained the age of 18 years are the children specified in the order and that proper arrangements in all the circumstances have been made for the care, welfare and development of those children (s.55A(1)(b)).

19. It is submitted that the husband is entitled to an exercise in his favour of the Court’s jurisdiction as:

    ·The parties separated on a final basis in about November 2010 and had therefore been separated for more than 12 months at the date of filing of the Divorce Application.

    ·Proper arrangements have been made for the child of the marriage by the Consent Orders made by the Court on 21 December 2011.

20. The husband submits that the Court should not decline to exercise its jurisdiction by way of permanently staying the proceedings, on the ground of forum non conveniens. It is the wife who bears the onus of establishing that this Court would be a clearly inappropriate forum and the continuance of proceedings within this Court would be oppressive or vexatious to her.

21. It was submitted that the wife’s evidence in her affidavit of 8 October 2012 of her conversation with the Marriage Officer, Ms S, should not be accepted as it is hearsay. As there is no affidavit by Ms S the Court is invited to draw a Jones v Dunkel[8] inference that her evidence would not have assisted the wife’s case.

    [8] (1959) 101 CLR 298

22. However, there was no objection at the time of the hearing to this paragraph of the affidavit and in my view it should be admitted. It is a matter of weight.

23. It was further submitted that this Court would recognise the validity of a divorce effected in accordance with the law of India under paragraph 104(3)(d) of the Family Law Act because the wife is a national of India. The Court notes there are no divorce proceedings on foot in India.

24. However, the husband submits that there is no admissible evidence before the Court that either:

    a)an Indian Court would not recognise an Australian divorce order; or

    b)it would be an offence under the Indian Penal Code for either party to enter into a further marriage once a divorce Order has been made in Australia.

25. The husband also submits that, although the wife says in her affidavits that she, too, wishes to finalise the proceedings between the parties by means of a divorce under Indian law, there is no evidence that she has taken any steps towards applying for an Indian divorce. The only proceedings currently on foot are the husband’s Application to this Court. This, it is submitted, is highly relevant (see Henry v Henry[9] at 591).

    [9] (1996) 101 CLR 185; 20 Fam LR 171; FLC 92-685

26. The husband submits that Australia is not a clearly inappropriate forum but the natural forum for divorce proceedings to be conducted, as:

    ·The Court has power to grant an application for divorce.

    ·The jurisdictional and adjudicational facts relevant to the granting of the Application have been met.

    ·There are no issues of language in the proceedings.

    ·The parties are both legally represented and have demonstrated an equal ability to participate in the proceedings.

    ·There are no proceedings on foot in India.

    ·The parties would have to travel to India to participate in divorce proceedings in that country.

27. The husband also relies on the decision of the High Court in Voth v Manildra Flour Mills Pty Ltd[10] in submitting that the jurisdiction to grant a stay or dismiss the action is to be exercised with great care or extreme caution.

    [10] (1990) 171 C LR 538

28. The wife’s solicitor has prepared a well researched and thoughtful Case Outline which succinctly addresses the issues.

29. It is conceded that, as the parties live in Australia and the husband is an Australian citizen, the Family Law Act provides jurisdiction for the Application to be brought. However, it is submitted that the parties chose to be married in India, in accordance with the provisions of the Special Marriage Act 1954.

30. That Act provides that parties are only able to obtain a divorce in the limited circumstances set out in sections 27 and 28. The wife’s solicitor makes the interesting submission that entering into a marriage under the Special Marriage Act can be likened to entering into a contract and that the Court can not change the conditions of that contract. The submission is that, in effect, parties who enter into a contract to be married under the Special Marriage Act can only end that contract by means of obtaining a divorce under the provisions of that Act.

31. As neither party is able to make an application under s.27 of the Act, the only remedy available is to make a joint application for divorce under s.28. A divorce can only be granted under certain conditions but not otherwise (see s.34(1)(f)).

32. The wife is concerned that an Australian divorce would not be recognised under Indian law and if she were to marry again this would be seen as bigamy in India. Either party remarrying would be committing an offence and may be subject to charges in India. This is a significant issue for the wife.

33. The wife submits that the parties would need to make a joint application for divorce in India at the District Court nearest to the place where the marriage solemnised. She further submits that:

34. …the Court can not simply dismiss the Indian Law as there is a conflict between the Indian Law and the Australian Law and where the parties freely entered into the Marriage Contract in the Indian jurisdiction, it is submitted that the Law in India is the one that should prevail.[11]

    [11] Wife’s Case Outline page 7

35. Further, if the Australian divorce did not have the effect of the parties being recognised as divorced in India, they would not be able to re-marry, which would be oppressive. The wife submits that:

    The Divorce in Australia further would not completely resolve the issues of the parties and would require further proceedings to take place in India at some point in the future for the parties to be seen as divorced.[12]

    [12] Ibid

36. Thus, the wife submits that the husband’s Application for Divorce should be dismissed or, in the alternative, should be stayed until such time as the application for divorce in India is granted.

Conclusions

1. It is not in issue that this Court has the jurisdiction to hear the Application for a Divorce Order under s.39 of the Family Law Act. Section 39 provides that at subsection (3) that:

   Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order is filed in a court, either party to the marriage:

   (a)    is an Australian citizen;

   (b)    is domiciled in Australia; or

   (c)     is ordinarily resident in Australia and has been so resident for 1 year immediately preceding the date.

2. The operative date is the date of filing of the Application, which in this case is 27 April 2012. On the date of filing:

   a)The husband was an Australian citizen;

   b)The husband was domiciled in Australia; and

   c)The husband has lived in Australia since June 2006.

3. Any of those conditions would suffice. However, the wife is a permanent resident of Australia and has lived in Australia since about June 2010. She has acquired an Australian domicile.

4. There seems to be no argument that the courts of India would also have jurisdiction under the provisions of the Special Marriage Act. The wife argues that a court in India is a more appropriate forum. This argument requires a consideration by this Court as to whether the Federal Magistrates Court is a clearly inappropriate forum (Voss v Manildra Flour Mills[13] at 558). “The availability of relief in a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one.”[14]

   [13] supra

   [14] (1990) 171 CLR 538 at 558 per Mason CJ, Deane, Dawson and Gaudron JJ

5. In Henry v Henry[15] the High Court applied the test as set out in Voth v Manildra Flour Mills Pty Ltd, holding:

   In Voth[16], this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that 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’.[17]

   [15] supra

   [16] Footnotes omitted

   [17] (185) CLR 571 at 587 per Dawson, Gaudron, McHugh and Gummow JJ

6. There are no proceedings currently on foot in India. An examination of the provisions of the Special Marriage Act, a copy of which is annexed to the wife’s affidavit of 8 October 2012, shows that neither party would appear to have a ground for a petition for divorce under s.27 of that Act. The grounds available to both parties are:

   a)Adultery;

   b)Desertion for a period of not less than two years;

   c)Undergoing a sentence of imprisonment for seven years or more;

   d)Cruelty; or

   e)of unsound mind or a mental disorder.

1. In addition, a wife may petition on the following additional grounds:

   a)That the husband has been guilty of rape, sodomy or bestiality;

   b)That an order for spousal maintenance has been made and cohabitation has not been resumed for a year or more.

2. Further, either party may petition on the grounds that:

   a)There has been no resumption of cohabitation for a year or more after the passing of a decree of judicial separation; or

   b)There has been no restitution of conjugal rights for a year or more after the passing of a decree for restitution of conjugal rights.

3. Section 28 of the Act allows a joint petition for divorce “on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved”.     

4. The wife seeks that the husband should join with her in bringing a joint petition to the District Court within the local limits of whose original civil jurisdiction the marriage was solemnized (s.31(1)(i)).

5. It is apparent that relief would be available to the parties by means of a joint petition to the District Court in India.

6. However, the facts of this case are that the parties have chosen to live permanently in Australia and the husband has chosen to become a citizen of this country. It does not follow, despite the submission on behalf of the wife, that because the parties were married in India under the provisions of the Special Marriage Act, that the only way that the marriage should be dissolved is by a court in India under that same Act. The parties have chosen to live in Australia and have chosen to submit to the jurisdiction of this Court in respect of their property and parenting proceedings.

7. No evidence has been presented to show that either party would be in jeopardy of a prosecution for bigamy if he or she were to remarry in Australia under Australian law. What jurisdiction would an Indian court have if the husband, an Australian citizen, were to marry in Australia? If the wife were to be divorced under Australian law and remarry in Australia, would an Indian court have any jurisdiction in respect of a charge of bigamy? The likelihood of such a prosecution being brought would seem to be remote, at best.

8. The wife has not established that this Court is a clearly inappropriate forum. This Court has jurisdiction and should proceed to exercise it.

9. The Court finds that the parties were married on 19 November 2007 at Kolkata in India. The Applicant is an Australian citizen domiciled in Australia. The Respondent is domiciled in Australia. The parties separated in November 2010 and have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of filing of the Application on 27 April 2012. Cohabitation has not resumed. The Court is satisfied that the marriage has irretrievably broken down.

10. There is one child of the marriage under the age of 18 years, [X], who was born [in] 2008. Parenting Orders were made by consent in this Court on 21 December 2011. The Court is satisfied under the provisions of s.55A of the Family Law Act 1975 that proper arrangements in all the circumstances have been made for the care, welfare and development of the child.

11. Accordingly, a divorce Order is made taking effect at the expiration of a period of 1 month from the date of this decision.  

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  6 November 2012