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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Goyal & Prabhu

Details

AGLC: Goyal & Prabhu [2022] FedCFamC2F 1217
Case: [2022] FedCFamC2F 1217
Decision Date

CaseChat Overview and Summary

This case involved a divorce application filed by the husband, who resides in Australia, and the wife who lives in India. The husband and wife are Indian nationals and married in India in 2018. The couple has one child, born in 2019. The husband left India for Australia in March 2020, and in May 2020, the wife and child left the husband's family home and returned to the wife's family in India. The husband filed for divorce in Australia on 4 August 2021, and the wife opposed the application, claiming that Australia was not an appropriate forum and that the statutory requirements for divorce were not met. The court was required to decide whether Australia was a clearly inappropriate forum for the divorce proceedings, whether the parties had been separated for the required 12-month period, and whether proper arrangements had been made for the care, welfare, and development of the child.

The court held that Australia was not a clearly inappropriate forum for the divorce proceedings and dismissed the wife's objection on that ground. The court found that the parties had been physically separated since 6 March 2020 but did not find that the wife's emotional attachment to the marriage and her desire for reconciliation meant that the separation was not final. The court concluded that the husband had not communicated his intention to divorce to the wife at least 12 months before filing the divorce application, as required by law. Therefore, the ground for a divorce order was not established, and the application was dismissed. The court did not find it necessary to determine the matter of the care, welfare, and development of the child, as the statutory criterion for separation had not been met.

The court dismissed the husband's application for divorce, and no order as to costs was made.

Orders