Goyal & Prabhu
[2022] FedCFamC2F 1217
Federal Circuit and Family Court of Australia
(DIVISION 2)
Goyal & Prabhu [2022] FedCFamC2F 1217
File number(s): MLC 8703 of 2021 Judgment of: JUDGE MANSINI Date of judgment: 7 September 2022 Catchwords: FAMILY LAW – contested divorce – where parties born, met and married in India – husband resides in Australia and is an Australian citizen – wife and child of the marriage reside in India and have never visited Australia – COVID-19 related border closure in Australia – pre-existing, extant proceedings in India brought by their respective parents – consideration of whether to exercise discretion to stay the divorce proceedings because Australia is a clearly inappropriate forum – jurisdiction engaged – dispute about date of separation – ground for a divorce order not established – application dismissed. Legislation: Evidence Act 1995 (Cth) ss. 174, 175
Family Law Act 1975 (Cth) ss.4, 39, 45A(6), 48, 49, 55A(3), 117(2)
Hindu Marriage Act 1955 (India)
Cases cited: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Falk & Falk [1977] FLC 90-247
In the Marriage of Falk (1977) FLC 90-247
In the Marriage of Todd (No 2) (1976) 1 Fam LR 11, 186; 25 FLR 260; FLC 90-008
Henry v Henry (1996) 185 CLR 571
Kent & Kent (2017) FLC 93-792
Marriage of Pavey (1976) 25 FLR 450
Marriage of Todd (No.2) (1976) 25 FLR 260
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
Talwar & Sarai [2018] FamCAFC 152
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Y. Narasimha Rao v Y. Venkata Lakshmi (1991) 3 SCC 451
Division: Division 2 General Federal Law Number of paragraphs: 112 Date of last submission/s: 8 August 2022 Date of hearing: 18 July 2022 Place: Melbourne Solicitor for the Applicant: Rangi Lawyers Solicitor for the Respondent: Singh Ausin Laywers ORDERS
MLC 8703 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GOYAL
Applicant
AND: MS PRABHU
Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
7 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The Husband’s Application for Divorce filed on 4 August 2021 is dismissed.
2.No order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Goyal & Prabhu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSINI
This is an application for an order for divorce filed by the Husband on 4 August 2021. The Wife opposed and sought dismissal of the application on grounds of jurisdiction.
For the reasons that follow, I have decided that Australia is not a clearly inappropriate forum, and, the application being filed less than 12 months after the date of separation, the ground for a divorce order is not established. It follows that the divorce application is dismissed.
Context
The facts
The facts of this matter are not contentious except where indicated.
The parties are Indian nationals by birth. The Husband initially came to Australia on a student visa, is now an Australian citizen and has lived in Australia for a number of years.[1] The Wife has never travelled to or resided in Australia, having resided in India at all relevant times.[2]
[1] Affidavit of Husband dated 6 July 2022 at [13]; Transcript of Hearing at page 17; Wife’s Affidavit of 11 July 2022 at [5].
[2] Affidavit of Wife dated 11 July 2022 at [28].
The Husband and Wife met when the Husband was visiting India. Their families arranged that they marry. The marriage took place in 2018, in a temple in India, in the presence of a community of approximately 500 family and friends, and pursuant to the Hindu Marriage Act 1955 (India) (Hindu Marriage Act).[3]
[3] Transcript of Hearing at pages 17-18; Affidavit of Wife dated 31 January 2022 at [1].
Shortly after the marriage ceremony in India, the Husband returned to Australia. The Wife remained in India.[4]
[4] Transcript of Hearing at page 25.
In 2019, the child of the marriage was born in India (Child). The Father applied for the Child’s Australian citizenship which has since been granted.[5]
[5] Affidavit of Husband dated 6 July 2022 at [20].
Around the time of the birth of the Child, the Husband returned to India. He stayed in India for around 3 to 4 months on that occasion.[6]
[6] Transcript of Hearing at page 25; Affidavit of Wife dated 11 July 2022 at [7].
Following the birth of the child, the Wife lived with the Husband and his family in India.[7]
[7] Affidavit of Wife dated 4 August 2021 at [10].
On 6 March 2020, the Husband left India for Australia.[8]
[8] Affidavit of Husband dated 6 July 2022 at [15] and -5.
On 19 March 2020, the Australian borders were shut to non-residents.[9]
[9] Department of Parliamentary Services “COVID-19: a chronology of Australian Government announcements (up until 30 June 2020”, Research Paper Series, 2020-21 (23 June 2021).
The Husband’s evidence was that his intention was always to bring the Wife and Child to Australia.[10] He said that, after he had left Australia, his father told him that the Wife “quarrelled” with the Husband’s parents, because she believed that the Husband was intentionally not lodging a visa application for her. The Husband also said there were technical issues which prevented him from applying for a visa for the Wife but she did not want to understand and threatened that she would get him deported from Australia – apparently over a dispute about dowry.[11]
[10] Transcript of Hearing at page 25.
[11] Affidavit of Husband dated 18 November 2021 at [4]-[8].
The Wife’s evidence was that the Husband stopped calling her after he returned to Australia. She said he was not happy after the wedding because he expected a bigger car and more dowry in the marriage because he was an Australian citizen; also because she bore a daughter not a son; and he did not want to get her a visa.[12] The Wife said it was never settled as part of the arranged marriage that she come to Australia but since during her pregnancy she had wanted to live with her Husband, wherever that was.[13] She also gave evidence that her family had paid the Husband approximately $10,000 AUD for the purpose of obtaining her a visa (among other claims she makes about financial support provided by her parents).[14] The Wife believed that the Australian border restrictions during the global COVID-19 pandemic did not prevent family members from the grant of partner visas in Australia and, actually, the Husband did not want to apply for her visa. She said the Husband demanded favours of her parents without which he would not apply for her visa.[15]
Incident of May 2020
[12] Affidavit of Wife dated 11 July 2022 at [5] and [7].
[13] Transcript of Hearing at page 69.
[14] Affidavit of Wife dated 11 July 2022 at [7].
[15] Affidavit of Wife dated 11 July 2022 at [30].
The Husband’s account
The Husband recalled that after the Australian border closure, on 16 May 2020, the Husband had a conversation with the Wife in which he attempted to explain that the Australian borders were closed and that this meant she had to wait in India. He recalled that the Wife became angry and said words to the effect of: “If you don’t take me to Australia right now I don’t want to stay with you” and she went back to her parent’s house.[16]
[16] Transcript of Hearing at page 26.
At the hearing, the Husband sought to rely on his evidence that he had spoken with his father on 17 May 2020.[17] The Husband recalled the following of this discussion:
(a)his father told him that, on the previous day (16 May 2020), the Wife had made a “false complaint” to police against the Husband and his parents, the Wife’s father had come to the house in company of many people and the police, and that they forcibly took away the Wife and the Child;[18]
(b)he felt very upset and was in shock and broke down during this discussion with his father;
(c)he told his father that he did not want to stay with the Wife and asked his father to convey his message to her that the relationship was over.[19]
[17] Affidavit of Husband dated 6 July 2022 at [16].
[18] Affidavit of Husband dated 6 July 2022 at [16]; Transcript of Hearing at page 26.
[19] Affidavit of Husband dated 6 July 2022 at [17]; Transcript of Hearing at page 26-27.
The Husband also gave evidence of his belief that his father went to the Wife’s family house on 18 May 2020 and informed her the relationship was over.[20] The Husband’s father filed an affidavit in which he said that he had “read the statement of my son Mr Goyal affirmed on 13 January 2022” (the Husband did not seek to rely on his own affidavit of 13 January 2022 at the hearing) and said that he did go to the Respondent’s home on 18 May 2020 in the company of two relatives and told her that the Husband had conveyed the relationship was over from his side and will not be revived.[21]
[20] Transcript of Hearing at page 27.
[21] Affidavit of Mr B (Husband’s Father) dated 14 March 2022 at [2].
At the hearing, the Husband’s evidence in cross-examination was that he had asked his father to do this because the Wife had by then “blocked” the Husband from the social network, “blocked” his phone number, and the Husband was therefore not able to contact her. He said that he did not contact the Wife’s family directly because around that time they were calling the Husband to threaten and abuse him.[22]
[22] Transcript of Hearing at page 27.
It may, at this point, be noted that in an earlier affidavit of 18 November 2021 (which the Husband did not seek to rely on at the hearing) the Husband said the incident was on the evening of 17 May 2020 and conveyed to him by his father on the morning of 18 May 2020. But at the hearing the Husband was adamant in cross-examination that the incident had taken place on 16 May 2020 because it was a date he could never forget.[23]
[23] Affidavit of Husband dated 18 November 2021 at 10; Transcript of Hearing at pages 26-27.
The Wife’s account
The Wife’s consistent account of this incident was that, on 18 May 2020, she got sick and the Husband’s family refused to take her to hospital and kicked her out of the house and took the Child away from her. The Wife said that she called her father, who admitted her to hospital. She said that it was the police who assisted her and her family to get the Child back that same day on 18 May 2020.[24]
[24] Affidavit of Wife dated 11 July 2022 at [9].
The Wife accepted that she has not returned to live with the Husband or his family since 18 May 2020.[25]
[25]Affidavit of Wife dated 11 July 2022 at [12].
Formal police complaint
A formal complaint was lodged by the Wife’s father, with the Region C Police, against the Husband and his family. It is described by the Wife as registered under the Indian Penal Code (a criminal matter) against the Husband for harassment and torture of the Wife for dowry.[26] A translated copy of a “first information report” (FIR) document (uncertified but translated from Punjabi to English) was in evidence, at Annexure 1 to the Wife’s affidavit dated 21 May 2022 (hereinafter referred to as the Police Complaint by the Wife’s Family). The FIR document in evidence records: the date and time of the FIR as 3 September 2020, 10:30 hours (information received at 3/9/20 at 9:10 hrs); that it is brought under s.154 Cr. P.C.; and that the occurrence of offence was 15/12/2018 to 18/05/2020.
[26] Affidavit of Wife dated 11 July 2022 at [10].
The Husband gave evidence of his understanding, based on discussions with his father, that his family was arrested – as he recalled, around 1 or 2 months after the incident of May 2020 - “because they put the fake FIR against us for the dowry and harassment”.[27] The Wife said it was 4 September 2020 that the Husband’s parents and elder sister were taken into custody and held for 4 days.[28]
[27] Transcript of Hearing at page 28.
[28] Wife’s post-hearing submissions at [25] and -2.
In cross-examination, the Husband accepted the FIR is made against him but seemed to say he had not been contacted by the authorities. He ultimately accepted that he was aware there were criminal charges against him and if he returned to India he may be arrested and would not have permission to do his job and return to Australia.[29]
[29] Transcript of Hearing at 35-36.
Also at the hearing, the Husband explained in evidence that his father lodged a complaint with the police and local authorities about the Wife’s family because they felt they were in danger.[30] The Husband had earlier filed an affidavit dated 18 November 2021 which annexed an undated and uncertified translated record that he said was his father’s complaint to the Director General of Police in India against police excesses and misuse of the s.498A of the Indian Penal Code. That document was marked in evidence and included a statement that the Husband father and his family members were “ready and willing to keep” the Wife and the Child.[31]
[30] Transcript of Hearing at page 28.
[31] Exhibit MFI-1 (Affidavit of Husband dated 18 November 2021 at -2).
The Wife said the responsive complaint or inquiry was made by the Husband’s family and that is why the matter is now before the Indian courts.[32] She also gave evidence that her family brought the FIR on her behalf because she was emotionally attached and could not bring it for herself. The FIR, from her perspective, was intended to make the other party understand what they have done and save the family life or relationship which is “normal”.[33]
[32] Transcript of Hearing at page 64.
[33] Transcript of Hearing at pages 63-65.
Custody application of November 2020
On 12 November 2020, the Husband’s mother lodged an application in an Indian Court to obtain custody of the Child (hereinafter referred to as the Custody Claim by the Husband’s Family).[34] The Husband asked his mother to apply on his behalf on the understanding this was the way to bring the Child to Australia.[35] He wanted to bring the Child to Australia because he can give her a good future here. The Wife is unemployed and cannot give the Child a good future.[36]
[34] -2 annexed to Respondent’s written submissions dated 8 August 2022.
[35] Transcript of Hearing at page 36.
[36] Transcript of Hearing at page 34.
Other evidence about and since the alleged separation
At the hearing, I asked the Husband why he wanted a divorce. In response he said: “Because her purpose is only to come to Australia, and she is giving me hard time.”[37]
[37] Transcript of Hearing at page 37.
The Husband’s filed evidence also said that he had communicated his intention of seeking a divorce by Instagram chat with the Wife in May 2020 and attached an undated screenshot of that alleged communication.[38] That Instagram chat exchange included the following:
[38] Affidavit of Husband dated 14 July 2022 at [5] and -6.
Wife: I have no need anyone in my life – Now – Ok – Bye
Husband: I need see my daughter – by video call – I’m [100%] sure u will do this as a. Mother [video call started 1:45PM]
Wife: I can get anyone - I have no need now
Husband: we will discuss about divorce
Wife: Your mother wants to custody of my daughter - All the best
Husband: really
Wife: Wait and watch
Husband: ok
Wife: Come in India now
For her part, the Wife denied that there had been a separation on 18 May 2020 or at all until she received the divorce application.[39] She denied that the Husband had communicated to her directly or through his father his intention to divorce on 18 May 2020.[40] She said: she was “shocked” to receive the divorce application; that this application was the first time she learned of the Husband’s intentions to divorce; and she had been hoping to get the circumstances changed and that the marriage would survive.[41] According to the Wife, the families were talking with the help of the relatives to reconcile which is culturally common-practice.[42]
[39] Affidavit of Wife dated 11 July 2022 at [12]-[14].
[40] Affidavit of Wife dated 11 July 2022 at [11(b)] and [12].
[41] Affidavit of Wife dated 11 July 2022 at [11(a)] and [14].
[42] Affidavit of Wife dated 11 July 2022 at [13].
Since 18 May 2022, the Child has lived with the Wife and her parents, and continued to do so at the time of the hearing.[43] The Husband contended that the Wife does not allow the Child to have any communication with the Husband and pointed to an exchange between them via WhatsApp dated 7 and 8 March 2021 as an example of this. By that exchange, the Husband contacted the Wife in which he requested “some D’s pick” and she responded “I don’t know who you are so don’t text me again”.[44]
[43] Transcript of Hearing at page 3.
[44] Affidavit of Husband of 14 July 2022 at [8] and -7.
The Wife agreed that the Husband has had no communication with the Child but said this is because the Husband never tried to contact the Child. She did not accept the proposition put to her in cross-examination that she had ever “blocked” the Husband from communications and pointed to the WhatsApp exchange and the Instagram screenshot in support.[45]
[45] Transcript of Hearing at page 67.
The Husband said the Wife has not commenced proceedings for child support in Australia or India and, as she is not in Australia, would likely not comply with any local orders in respect of arrangements for the Child.[46] The Wife said there are no proper arrangements for the Child; they are living with the support of her parents who are now getting old; and all the savings were spent on her marriage and dowry.[47] She is an unemployed mother raising the Child on her own with support of her friends and relatives, he has never paid. She said she had no personal means to engage an Australian lawyer, struggled to respond to the Australian divorce proceedings and had no means to start and support legal proceedings for spousal maintenance and child support in Australia.[48]
[46] Affidavit of Husband dated 14 July 2022 at [9] and [10].
[47] Affidavit of Wife dated 11 July 2022 at [19].
[48] Affidavit of Wife dated 11 July 2022 at [17] and [28].
For his part, the Husband said he asked for the Wife’s account number to put expenses in her account but claimed she denied this and said he has evidence in a screenshot: “I have everything so I don’t need you – anything” (presumably, a reference to the Instagram chat in evidence referenced above).[49] The Husband also said he regularly sends $500 per month to his family in India, for the maintenance of the Child, which the Wife strongly denied, but at the hearing the Husband seemed to accept that this had not occurred for some time since around 18 May 2020.[50]
[49] Transcript of Hearing at page 33.
[50] Transcript of Hearing at pages 32-33; Affidavit of Wife of 11 July 2022 at [16] and [20].
The Husband gave evidence that the Wife is “demanding a huge sum of money from me” and he cannot meet her demands. But, if the Child is allowed to come to Australia then with the help of social security payments he would be able to maintain and look after the Child.[51]
[51] Affidavit of Husband dated 6 July 2022 at [23].
The Wife gave evidence that the allegation that she demanded large sums of money was “false”.[52] Also that she does not know about the divorce process in India. However, she had earlier given an affidavit (dated 31 January 2022) which read like a legal submission citing an Indian Supreme Court case and the recognition of divorce in India.[53]
[52] Affidavit of Wife dated 11 July 2022 at [25].
[53] Affidavit of Wife dated 31 January 2022 citing Y. Narasimha Rao v Y. Venkata Lakshmi (1991) 3 SCC 451.
In cross-examination, the Wife said that after she fell pregnant the Husband had disclosed a prior marriage to an Australian girl so that he could get permanent residency. The Wife believed he took advantage of the no-fault divorce laws in Australia on that occasion to obtain a divorce with the first wife. She also gave evidence of her opinion that the Husband wanted to “take advantage of the ‘No-Fault divorce law in Australia so that he may remarry someone in Australia and will not have to go back to India, where he is sought under the criminal law of another country” and further accused the Husband of using “Australian citizen privilege to abuse me and fulfil his greed of dowry”.[54]
[54] Affidavit of Wife dated 11 July 2022 at [27] and [29], see also [28].
The Husband did not know of the Wife’s financial circumstances or means other than that the Wife had worked as an educator prior to the marriage; took leave after marriage; was unsure whether she works now or not; and believed that her parents have means given the allegations she has made about substantial dowry and gifts.[55]
[55] Transcript of Hearing at page 31.
Procedural context
On 4 August 2021, the Husband filed this application for divorce in this Court. In his affidavit, the Husband said the Wife was served.
On 3 November 2021, the Wife filed her Response to this divorce application. It was witnessed by an Indian lawyer who provided a practitioner number.
There were procedural mentions on 16 and 30 November 2021, 27 January and 4 February 2022. On each of those occasions, the Husband was represented by a lawyer and the Wife had the assistance of a representative whose qualifications were disputed by the Husband.[56]
[56] Affidavit of Husband dated 6 July 2022 at [3] to [9].
On 24 May 2022, the matter was called on for pre-trial directions before Chief Judge Alstergren and procedural orders were made which included that the parties prepare and exchange precise orders sought and any amended application and defence. The matter was also fixed for final hearing which was subsequently rescheduled to an earlier date, before the Court as presently constituted.
On 6 July 2022, the Husband filed an amended application which included the precise orders he sought.
On 12 July 2022, the Wife filed an amended response which included two additional issues which I understood to be argued in the alternative to her primary argument as to the forum: separation at the time of application; and no proper arrangements for the welfare and care of the Child.
On 18 July 2022, the final hearing proceeded before the Court as presently constituted. Both parties were represented by Counsel. All participants were in-person other than the Wife who was permitted to attend by video link from India, using MS Teams.
At the final hearing, the Husband relied on the following material:
(a)affidavit of the Husband filed on 6 July 2022 (Exhibit A1);
(b)affidavit of the Husband filed on 14 July 2022 (Exhibit A2);
(c)divorce application filed on 4 August 2021 (Exhibit A3);
(d)amended initiating application filed on 6 July 2022 (Exhibit A4);
(e)affidavit of Mr B filed on 16 March 2022 (Exhibit A5), the Husband’s father, who was not made available for cross-examination; and
(f)annexure -2 of the affidavit of the Husband filed on 19 November 2021 (Exhibit MFI1).
At the final hearing, the Wife relied on the following material:
(a)response to the divorce application dated 3 November 2021;
(b)amended response to the divorce application filed 12 July 2022; and
(c)affidavit of the Wife filed 12 July 2022 (dated 11 July 2022) (Exhibit R1).
At the hearing, an interpreter was made available to the Applicant and the Respondent in respectively giving their evidence to the Court. As there were some apparent difficulties in translation of lengthy sentences and some disputes raised by Counsel during the course of the hearing as to the accuracy of the translation, the parties were afforded the opportunity to make final submissions in closing with the benefit of the transcript. Neither party sought to correct the transcript or indicated any part of it ought not be relied on.
The parties were also afforded a further opportunity to address the Court in written submissions after their evidentiary cases had closed. Specifically, the Court requested a single set of consolidated written submissions of each party, which were to include answers to specific questions of the Court (addressed as relevant, in the below).
The application under the Family Law Act 1975
The original “application for divorce” did not specify any particular orders sought.
The Husband was directed to file any amended application no later than 21 days prior to the final hearing. By his amended application filed 12 days before the hearing on 6 July 2022, the Applicant sought final orders expressed as follows:
1.The marriage between the Applicant and the Respondent is proved.
2.The Applicant was at all material times domiciled in Australia.
3.The ground for the application for a divorce order namely that the marriage has broken down irretrievable is proved.
4.The only child of the marriage, as the expression is defined in section 55A(3), who has not attained the age of 18 years is [X] born [in] 2019.
5.The Respondent wife be ordered to send [X] to Australia to live with her father.
6.There are circumstances by which the divorce should take effect even though the court is not satisfied that proper arrangements in all the circumstances has been made for the care, welfare and development of the child.
7.The court grants divorce to the Applicant.
8.The Respondent pursuant to section 45A(6) and/or section 117(2) of the Family Law Act pay the costs of the Applicant.
9.Any other order court deems fit in the circumstances.
(sic.)
Proposed orders 1, 2 and 4 are essentially facts that, as the summary of the factual context reveals, are not seriously in dispute. At the hearing before the Court, the Husband confirmed that proposed order 5 was no longer pressed on the basis that India was not a signatory to the Geneva Convention. Accordingly, if the amended application were within jurisdiction, what would remain for the Court to determine is the Husband’s (amended) application for divorce. Specifically, proposed Orders 3, 6 and 7, in addition to the matters of the Husband’s costs and any other orders the Court may seek to be made (proposed Orders 8 and 9).
The Wife strongly opposed. In her affidavit of 31 January 2022 the Wife said what might be understood as properly a legal submission:
It is categorically stated that the [Wife] does not submit to the jurisdictions of the Australian Court. Only a court as mandated by the Hindhu Marriage Act, 1955 is competent to grant a decree of divorce.[57]
[57] Affidavit of Wife dated 31 January 2022 at [1].
She contended that the application for divorce (as amended) should be dismissed for want of jurisdiction, because this Court is “a clearly inappropriate forum” for the matter to proceed. By her amended response, the Wife added that the statutory requirements under the Act were not met because the separation did not occur 12 months prior to the application and the Court cannot be satisfied as to the care and welfare of the child. In the alternative, she sought that the decree nisi does not become absolute until the Court is satisfied that the proper arrangements in all circumstances have been made for the care, welfare and development of the child of the marriage.
The Wife did not seek any order as to costs.
Key issues
The key issues to be determined are:
(a)The forum issue;
and in the event the Court decides to hear the matter
(b)The period of separation; and
(c)Whether proper arrangements have been made for the care, welfare and development of the Child.
Some preliminary observations about the evidence. The Husband and Wife were each critical, and sought to challenge the credibility, of the evidence of the other. Both prepared and filed a series of written affidavits (some for the purpose of preliminary matters not presently before the Court). Both gave oral evidence to the Court with the assistance of an interpreter.
It may be noted that some inconsistencies between the Husband’s earlier filed evidence and that which he sought to rely on at the final hearing (including that highlighted above) were not explained – I consider this to reflect a lack of the necessary care taken in preparing his evidence and I decline to make any adverse finding in this respect other than where specifically addressed in the below.
In their oral evidence, both witnesses had a tendency to give responses that did not directly answer the questions they were asked. To the extent it may have been suggested there were any difficulty occasioned by the use of an interpreter, the parties were afforded an opportunity to agree any corrections to the transcript but did not do so.[58]
[58] Transcript of Hearing at page 70; see also Order 1 of 21 July 2022: “By 4.00 pm on 25 July 2022, the parties are to confer and agree any amendments to the transcript for accuracy of translation.” .
I have considered the written evidence on which the Husband and Wife respectively sought to rely at the final hearing and, wherever possible: I have relied on uncontentious facts; preferred the written evidence of Husband and Wife, especially where it was not in contest or supported by a documentary record and/or was corroborated by oral evidence; and have otherwise declined to make any unnecessary findings as to credit based on the oral evidence.
The Husband’s father was not available for cross-examination. The written affidavit filed on his behalf was relied upon to corroborate the Husband’s account of a narrow but important issue as to the date of separation. There was no objection to this statement being received by the Court without the opportunity to cross-examine.
Further, as earlier referenced, the Court invited consolidated closing submissions to be made in writing. But specifically with regard to the evidence as it arose.[59] The Wife attached two additional documents to her closing submissions which were marked as “2” and “3” but were not in evidence and not previously before the Court. There was some evidence that goes to those matters in the affidavits and oral evidence given to the Court which may and is properly regarded by the Court. However those documents marked as “2” and “3” do not form part of the Wife’s evidentiary case, are unexplained and untested and accordingly are not regarded as evidence in the proceeding.
[59] Transcript of Hearing at pages 71 and 72.
Each party has made a variety of complaints against the other. The Wife claimed, for example, that the Husband and his family made demands on her and her family for money. The Husband refuted those claims and in turn claimed that the Wife's family made false claims against him regarding torture and bribery. I have resolved only those contests in evidence that are relevant to these proceedings and to the extent they may be necessary in order to assess certain evidence as reliable.
The forum issue
Applicable legal principles
A court is ordinarily obliged to exercise the jurisdiction conferred upon it by statute, where regularly invoked. But if the local forum is “a clearly inappropriate forum” for the dispute then the court must exercise its inherent power to stay the proceeding before it: Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 (Oceanic) at [247] – [248]; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (Voth) at [564]; Henry v Henry (1996) 185 CLR 571 (Henry).
The onus of proving that Australia is a clearly inappropriate forum rests with the party seeking to rely upon a foreign law: Oceanic at [247] (Deane J); Kent & Kent (2017) FLC 93-792 at [36].
The authorities regarding the exercise of such a stay refer to the court being satisfied that the proceedings before it are “oppressive” or “vexatious” or an “abuse of process” and explain the basis on which the court will do so: Talwar & Sarai [2018] FamCAFC 152 (Talwar) at [19] - [27].
The key issues a court must consider are whether the controversy between the parties is the same in both jurisdictions, whether or not complete relief is available in the local jurisdiction and whether there is nothing to be gained in the overseas proceedings or whether, on the other hand, the overseas proceedings will give rise to additional or other remedies: Talwar at [24] and [25], citing the majority in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 (CSR):
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”.
(Footnote omitted)
Also in Talwar, the Court assessed the matter by reference to the further matters discussed by the majority in Henry at [26].
The guidance provided by these aforementioned authorities does not represent an exhaustive list of considerations when exercising the discretion. This judgment proceeds according to that guidance and the factors about which the Court was addressed.
Consideration of the forum issue
These divorce proceedings have a connection to both India and Australia. Both parties were born in India and are Indian nationals. While their marriage was effected in India and under Indian law, it is relevant that the Husband is an Australian citizen, at all relevant times lived in Australia and continued to do so for substantial periods of time after their marriage and after the birth of their Child (who is also an Australian citizen).
Both Indian and Australian courts have jurisdiction in respect of divorce proceedings. With respect to the parties to the present matter, divorce proceedings have been commenced in Australia and there is no evidence of divorce proceedings having commenced in India. That factor is not fatal to the Wife’s objection in that the mere availability of complete relief in the foreign proceedings is sufficient regardless of whether it is actively pursued. There was limited (if any) information placed before this Court as to the differences although it may be assumed that there are differences in the substantive laws, available remedies and procedures for divorce proceedings in Australia and India (not least that, under the Australian regime, there is no necessity for a party to show fault or any other similar ground). Again, this is not fatal to the Wife’s objection. As I understood his argument, the Husband sought to say that he is entitled to the benefit (he used the term “advantage”) of the Australian divorce law. That may be so and, if there were jurisdiction, is not of itself an improper purpose as the Wife seemed to apprehend.[60]
[60] Applicant’s written submissions at [13].
Neither counsel submitted that an Australian divorce order would or would not be recognised in India, perhaps properly recognising that expert evidence on the point would be necessary. The Wife simply sought to say this was an “unsettled” issue under Indian law citing only an Australian authority for that proposition (in Talwar). In an earlier affidavit of 31 January 2022, which the Wife did not expressly rely on at the final hearing, she cited an Indian case as authority for the finding: “Court of competent jurisdiction would be the one which the law under which parties are married, recognises. Any other court would be without jurisdiction, unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that Court.”[61] Absent more or conclusive evidence I am unable to find that an Australian divorce order would, or would not, be recognised in India.
[61] Affidavit of Wife dated 31 January 2022 at [1].
There are two extant proceedings in India. While the mere existence of proceedings in two different countries at the same time does not, of itself, amount to vexatious or oppressive conduct, further analysis is required.
The existence of the Custody Claim by the Husband’s Family was not in dispute. It was also not contentious that those custody proceedings were: commenced by the Husband’s mother (which, he accepted, was on his behalf); instituted prior to the commencement of these divorce proceedings; and ongoing at the time of the final hearing of these divorce proceedings. There is little evidence before the Court about the orders or relief sought in the Custody Claim by the Husband’s Family, but it would appear uncontroversial that those proceedings involve judgment or orders sought for custody of the Child of the marriage. Consistent with the observations of the Full Court in Henry, it may be accepted that it is the marital relationship itself that lies at the heart of both the Custody Claim by the Husband’s Family and these divorce proceedings and they are therefore concerned with the same (or the same underlying) controversy even if the precise relief differs.
There is also the Police Complaint by the Wife’s Family. Again, the existence of those proceedings was not in dispute. Again, it was not contentious that those proceedings were: criminal in nature; commenced by the Wife’s father (on her behalf, as she was “emotionally attached”); commenced prior to the commencement of these divorce proceedings; and were ongoing in the Indian courts at the time of the final hearing of these divorce proceedings. The subject matter of this complaint appeared to be an inter-familial dispute which was triggered by what is described above as the incident of May 2020 (in the present context, whether the incident was 16 or 17 May 2020 is unimportant). Both parties rely on that incident to explain the physical separation of the Wife and Child from their residence with the Husband’s family (the marital home, where they had lived since the marriage) and indeed the Husband’s case is that this incident was the catalyst for his decision to end the marriage. The Husband is aware of the potential for, and undoubtedly fears, his arrest if he were to return to India. The Wife’s evidence was that her father brought this proceeding in order to bring about a settlement or effectively save the marriage. On what is before the Court, I am prepared to accept that the Police Complaint by the Wife’ Family and these divorce proceedings are at least connected with the underlying controversy of the marital relationship.
Notwithstanding the (further) invitation of the Court to do so after conclusion of the final hearing, neither the Wife (who bears the onus) nor the Husband tendered the relevant Indian legislation or Indian case law (an available course pursuant to ss.174 and 175 of the Evidence Act 1995 (Cth)) or provided any explanation of the issues on which relief might depend in the Custody Claim by the Husband’s Family or the Police Complaint by the Wife’s Family. To the extent it was contended by the Wife, it was also not explained how the Husband might obtain some improper purpose or advantage in those criminal proceedings or at all by succeeding in obtaining a divorce order in these divorce proceedings (beyond embarrassment to her socially and culturally, which I accept could be the case). These were presumably forensic decisions on the Wife’s part. In this and the above respects, I note the cautions offered by the Full Court in Talwar against a judge conducting their own research as to foreign laws and proceeding carefully in the absence of expert evidence. Accordingly, I am not in a position to consider the issues on which relief might depend as relevant to the present question. And, without more, I decline to find an abuse of process or deliberate attempt to “circumvent” the Indian criminal proceedings by bringing these local proceedings.
There is no evidence of an injunction or other order of the Indian courts seeking to restrain these proceedings as might require comity between the two jurisdictions on this ground.
Also relevant is the evidence that goes to the question of whether the parties are able to participate in the respective proceedings on equal footing. Both the Husband and the Wife participated in these proceedings with the assistance of a Punjabi interpreter. Both were able to obtain legal assistance to represent them at the final hearing. Nonetheless, I accept that the Wife is unemployed and therefore dependent on the support of her family or friends and of more limited financial means. Practically, it was also more difficult for the Wife to participate in these Australian proceedings remotely from India and to engage an Australian lawyer.
For his part, and although he strongly disputed the merit of the claim and denied the truth of the related allegations, the Husband accepted that he may be arrested upon return to India in connection with the Police Complaint by the Husband’s Family and would not then be able to return to Australia and work in Australia. While he may regard this as a barrier to his participation in proceedings in India, it is not one that I regard as supportive of a finding of an unequal footing on the part of the Husband.
There is also no evidence tendered through a witness or able to be tested at hearing as to how advanced (or otherwise) the two extant proceedings brought by the respective parents of Husband and Wife are in the Indian jurisdictions. Whereas the present application has been finally heard and, if jurisdiction is found, is then ready to be determined without further cost to the parties.
Conclusion on forum
I have considered each of the various factors above on the evidence before the Court.
As will be evident from the above findings, there are some factors in favour of the Wife’s case. Including and in particular, that: the two proceedings in India were instituted prior to this divorce application; that those two proceedings are borne of the marriage and at least somehow related to the same controversy; there is an unequal footing for the Wife in participating in this jurisdiction and a connection with India especially as she has never travelled to Australia and continues to reside in India where she is raising the Child of the marriage.
However, having regard to the controversy as a whole, the Wife has failed to demonstrate that the Australian proceedings are vexatious or oppressive in the Voth sense, in that they are “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging” or an abuse of process. There is clearly a connection with Australia; the substance of the two proceedings in India is not the same or identical as there are no divorce proceedings on foot in India; there has been no articulation to the Court of how relief in those two proceedings might depend on or be adversely affected by a divorce order of the Australian court. The foreign proceedings were not directly brought by the parties (rather, their parents) and there is no injunctive or restraining order against the Husband’s participation in the present proceedings. The Wife has now participated in these proceedings and a final outcome is able to be determined.
The Wife having failed to demonstrate that Australia is a clearly inappropriate forum, it is now open to me to consider the Husband's divorce application on its merits.
The application for divorce orders
Statutory context
This application is made pursuant to the Family Law Act 1975 (Act).
A matrimonial cause may be instituted in this Court if, at the date on which the application is filed, either party to the marriage is: an Australian citizen; is domiciled in Australia; or is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date: s.39 of the Act.
A matrimonial cause includes proceedings between the parties to a marriage for a divorce order: s.4 of the Act. Divorce applications are provided for as follows:
48 Divorce
(1)An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
(2)Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and 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 for the divorce order.
(3)A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
The Court must be satisfied that the parties separated and that they thereafter lived separately and apart for a period of 12 continuous months: s.48(2). For purposes of a divorce application, “separation” is defined to mean:
49 Meaning of separation
(1)The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
(2)The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
Where there is a child of the marriage that has not yet attained 18 years of age, s.55A(1)(b) provides that a divorce order does not take effect unless the Court has, by order, declared its satisfaction that:
(i)proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
(ii)there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied such arrangements have been made.
Consideration
It was not in issue that the Husband, as one party to the proceeding, provided evidence of his Australian citizenship and ordinary domicile in Australia. That evidence was unchallenged and may be accepted. I find that the requirements of s.39, for instituting a matrimonial cause under the Act in this Court, are met.
I now turn to consider the remaining matters in issue as relevant to the application for divorce orders.
The period of separation
The only ground for dissolution of marriage is that the marriage has broken down irretrievably. However it is necessary to satisfy the Court that there has been 12 months’ continuous separation prior to the filing of the divorce application: ss.48 and 49 of the Act.
Physical separation of itself is not sufficient to establish a “separation” under the Act.
Separation involves the breakdown of the marital relationship, where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. Each case will turn on its own facts but the common elements comprising a marriage may include dwelling under the same roof, recognition of the existence of the marriage by both spouses in public and private relationships, nurture and support of the children of the marriage: In the Marriage of Todd (No 2) (1976) 1 Fam LR 11, 186; 25 FLR 260; FLC 90-008.
In the case of Marriage of Pavey (1976) 25 FLR 450 at 453 the Court (Evatt CJ, Demack and Watson JJ) adopted the views expressed in Marriage of Todd (No.2) (1976) 25 FLR 260 at 263:
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.
In another passage from Marriage of Todd (No.2) referred to in Marriage of Pavey Watson J said:
Separation can only occur in the sense used by the Act where one or both of the spouses form an intention to sever or not to resume the marital relationship and act upon that intention, or alternatively act as if the marital relationship has been severed.
In In the Marriage of Falk (1977) FLC 90-247, the Full Court held that for separation to occur there also needs to be communication of the necessary intention to separate, which may be direct or indirect.
Here, there is no dispute and I am satisfied on the evidence that the parties had lived separately since 6 March 2020. That amounts to a continuous period of physical separation of more than 12 months immediately preceding the date of filing of the application for divorce in this Court on 4 August 2021.
However, their uncontroverted physical separation was a continuation of the status quo or circumstance that existed during (and for a large part of) their marriage before the alleged separation date. Therefore, it remains to resolve whether there was a separation or breakdown of the marital relationship. I turn now to consider this issue in light of the established principles and on the facts of this particular case as before the Court.
Although there were differing accounts of who was to blame for their problems, both parties gave evidence of problems in their marriage before the physical separation. Indeed the Wife said the problems started before the Husband left India for Australia including that there was no communication from the Husband after he departed for Australia in March 2020.
There was some conjecture as to the precise date but it is clear that, in May 2020, there was an incident involving the Wife and the Husband’s family. That incident set in motion a series of events namely, the departure of the Wife and Child from the Husband’s family home.
Although there are a number of disputed events, it is not contentious that, by 18 May 2020, the Wife and the Child had left the Husband’s family home and from then resided with the Wife’s family. Whether the Wife left because the Husband’s family kicked her out (as she said at one point) or because her family came and removed her (as seems to be consistent by all accounts), the Wife accepted that this was the date that she left and that she has not resided with the Husband or his family since then.
The Husband was in Australia at the time of the incident in May 2020 and has not returned to India since then.
On one view, it would appear that the separation might have been mutual from that date. However, I am prepared to accept the Wife’s evidence that as of 18 May 2020 she remained “emotionally attached” and did not want the marriage to be over despite the claimed ill-treatment by his family and the intervention of her own family, including because of the cultural and social stigma that would flow from a divorce. In these circumstances, the Husband would need to establish that he had unilaterally decided to divorce, acted on this and conveyed this decision to the Wife - at least 12 months before making this divorce application. He asked the Court to find that he conveyed his decision to seek divorce to the Wife (via his father) on 18 May 2020.
I accept it as possible that such message or intention may be conveyed indirectly: Falk & Falk [1977] FLC 90-247 at 76,333. But there were a number of difficulties with the Husband’s evidence.
The Husband’s evidence was inconsistent about whether the incident was on 16 (as he now says) or 17 (as he first said) May 2020. Of itself, that may be explained by lack of care taken in preparing his evidence however that was not an explanation offered on his behalf.
The Husband’s father gave evidence that was untested but, in any event, said that he read his son’s affidavit and says he went to the Respondent’s house on 18 May 2020 in the company of two relatives and told her the “relationship from his side is over and will not be revived.”[62] There was no other evidence to support this version of events such as other communications on or around 18 May 2020. The Husband’s account that he could not communicate with the Wife directly because she had blocked him from communications is implausible in light of the other, subsequent evidence of their WhatsApp exchange. The Instagram message in evidence was undated and therefore does not assist in proving the Husband’s decision to divorce was communicated on 18 May 2020. Further, the Instagram chat plainly referred to the Husband’s mother seeking custody, which she did not formally do until some months later, on 12 November 2020. It also seems unlikely that the Husband’s father attended the Wife’s house to convey the intention to end the marriage on the same or following day after the police visit involving forced removal of the Child, given the Husband (who was in Australia) said he was not even prepared to attempt to communicate with the Wife’s family remotely at that time because of their alleged abuse and harassment. The Husband’s father subsequently, some months later, in his own complaint about the Wife’s family, maintained their family would “keep” her – in direct contrast to the suggestion that he understood or accepted that the marriage was over from his son’s part.
[62] Affidavit of Mr B (Applicant’s father) dated 14 March 2022 at [2].
I have found on the evidence that was before this Court that the Husband did not convey his unilateral decision or intention to divorce on 18 May 2020 (either directly or indirectly). However, on the evidence before the Court, the date of separation was not necessarily as late as the date of service of the divorce application (as the Wife contended) but would appear to have been the time of the custody application on 12 November 2020. This divorce application was made on 4 August 2021. On the evidence before the Court, I cannot be satisfied that the parties had subsequently separated and 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 for the divorce order, as required by and within the meaning of s.48(2) of the Act, has been met.
The care, welfare and development of the Child
For a divorce order to take effect, the Court must reach the necessary state of satisfaction that the proper arrangements in all the circumstances have been made for the care, welfare and development of a child of the marriage or there are circumstances by which the divorce order should take effect despite the Court not being satisfied as to the proper arrangements.
The Husband did not contend that proper arrangements in all the circumstances have been made for the care, welfare and development of the Child. Rather, he asked the Court to find that there are circumstances by reason of which the divorce order should take effect even though the Court is not satisfied that such arrangements have been made.
Also, in the course of these proceedings, the Husband properly withdrew his application for orders that the Child be brought to Australia in acknowledgement of India not being a signatory to the Geneva Convention and there being no obligations to bring the Child to Australia.[63]
[63] Affidavit of Husband dated 6 July 2022 at [22].
Having concluded that the parties were not separated within the statutory meaning for a continuous period of not less than 12 months before this divorce application was filed, it is not strictly necessary to determine the matter of the care, welfare and development of the Child.
Resolution
For the above reasons, not being satisfied that statutory criterion at s.48(2) is established, the ground for a divorce order is not established and the application is dismissed.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 7 September 2022
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