Gull and Gull (No. 2)

[2007] FamCA 857

FAMILY COURT OF AUSTRALIA

GULL & GULL [2007] FamCA 857

FAMILY LAW  -  Financial  -  Proceedings in High Court in India  -  Choice of jurisdiction

Family Law Act 1975 (Cth)

Korsky & Bright & Anor [2007] FamCA 245

HUSBAND: MR GULL

WIFE: MRS GULL

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2723 of 2004

DATE DELIVERED: 6 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 6 August, 2007

REPRESENTATION

SOLICITOR FOR THE HUSBAND: Vernon Da Gama & Assoc

THE WIFE: In person

Orders

1. That the evidence of the husband of 20 June, 2007 be transcribed and a copy provided to each of the parties.

1. That within seven days hereof the wife provide an irrevocable authority to Centrelink to give force and effect to paragraph (6)(d) of the orders made by the Honourable Justice Bennett on 20 June, 2007. 

1. That the form 2 application filed by the wife on 6 July, 2007 and the form 2A response filed by the husband on 6 August, 2007 be otherwise dismissed. 

1. That the husband’s costs of this day be reserved.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

1. That the matter is listed for a final hearing to commence at 10:00 am. on 25 November, 2007.

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be referred to as Gull & Gull.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2723 of 2004

MR GULL

Husband

And

MRS GULL

Wife

REASONS FOR JUDGMENT

1. This matter has a long history;  I do not propose to rehearse the whole of it.  The parties started living together when they married, in 1991.  They do not agree, as I understand the evidence, about the date of separation.  The wife alleges separation occurred in 2001 when the husband went to the Middle East to work, where he remained until 2004.  The husband deposes that the marriage subsisted during that period and they did not separate until 2004.  On a few things the parties agree;  they were divorced in 2005, they have one child, R, born in 1994, they came to Australia in 2001 and the parties and their child are all now Australian citizens.  About much that has occurred since, the parties disagree. 

1. The proceedings were commenced by the wife in Australia in this Court in 2004, seeking financial and parenting orders.  Three years later the case is continuing and just under 100 documents are on the court file.  It is clear - and I speak of the financial proceedings - that each of the parties alleges that the other is responsible for the delays;  I can say that attempts by the court to have the matter listed for a final hearing have been, to date, in vain. 

1. Each alleges that the other party has failed to comply with orders aimed at achieving full financial disclosure.  Numerous orders have been made, directed at each of the parties, and there is disagreement as to whether those orders have been complied with.  If they have been complied with, the parties argue as to whether compliance has given force to the spirit of the order or has been partial or deliberately inadequate or misleading. 

1. The parties have real estate here in Australia.  There is cash in Indian banks.  There is a car here.  The wife alleges there are two relevant properties overseas, one in Mumbai, one in G. The parties are in disagreement as to the nature of the husband's interest in and the value of those properties.  The husband deposes that the property in G is owned in his name and that of his sister, and that a proper valuation has been supplied.  The wife's evidence is that the valuation is deficient and misleading.  As I understand the evidence of the husband, the husband's father is the tenant of the property in Mumbai and it is occupied, it is said, by the wife's brother.  The wife has just said from the bar table that she is not sure about that “from the Indian authorities”, but one imagines she could adduce evidence from her brother about his alleged occupants.

1. What is clear is that, having initiated proceedings in this Court in Australia, the wife filed proceedings in the Family Court in Mumbai at Bandra in India, being proceedings number … . 

1. On 19 April, 2005 a judgment was delivered by that Court, which is before this Court.  It sets out, very clearly, the dilemma.  The parties have assets in two countries and seek to litigate in respect of those assets in both countries.  It is a basic principle of private international law that, in those circumstances, the Court must find which is the forum of convenience, having regard to a number of factors, which are well-established. 

1. The Indian judge, for reasons set out in the judgment, found that the balance of convenience did not lie in the parties litigating in India;  it lay in the parties continuing the litigation earlier commenced in Australia.  It appears that the wife appealed against that decision and, on the file, is an order of a judge of the High Court at Mumbai arising out of that appeal.  To summarise, the order makes provision for the assets that are in India to be frozen pending any order of this Court and gives the wife liberty to bring to that Court orders made by this Court in the course of the litigation, and seek (in the High Court at Mumbai) that those Australian orders be given force and effect in India.

1. The wife seeks, as I understand it, that there be parallel or perhaps intermingled proceedings between India and Australia.  For example, amongst the orders she seeks in the application before me today, is an order that this Court give liberty to the parties to seek final orders from the Mumbai High Court in relation to the Indian funds, the Indian properties and what is referred to as “the respondent's dual identity and dual passport”;  an order that they can approach the Mumbai court to issue subpoenae in relation to “those Indian matters”;  and an order that, after subpoenas are obtained, the case be listed in the Mumbai High Court for further directions. 

1. In my judgment that is contrary to the weight of the evidence before this Court and the decisions of the Family Court at Bandra and the High Court at Mumbai, and would be completely inconsistent with the reality that this court is now the court of jurisdiction.  The court deals with many cases such as this;  it is not at all uncommon, at a time when people move through national boundaries and have assets in a number of countries, for litigation to involve assets spread throughout the world.  It imposes significant expense and difficulty on litigants.  It is perhaps for that reason that the court has not been unduly cautious, if it finds there has been a failure to make full and frank disclosure of assets in another jurisdiction, to draw inferences adverse to the party who it is alleged has such assets;  an example can be found in Korsky & Bright & Anor. [2007] FamCA 245. That is a risk that the parties in this case run, were a court to make adverse findings about disclosure.

1. The wife seeks as her primary application today that paragraphs 3 and 7 of orders made by Guest J on 29 September 2004 be discharged.  Those orders restrain both parties from dealing with money invested in bank accounts without the consent in writing from both, or an order of the court.  The wife seeks to have those orders discharged so the Indian court can deal with those assets.  I am satisfied on the evidence before me that the Indian court has ceded jurisdiction to this court and that could not be an appropriate order.  Nor could any of the other orders sought by her in paragraphs 2 to 4, being the matters I have summarised earlier.

1. I add that an Indian court is, of course, able to do whatever that Indian court determines is appropriate, within relevant Indian law.  It is not a matter for this court to give leave to an Indian court to do anything.  This court is seized of these proceedings and should ensure they are heard as expeditiously as possible. 

1. I will order that the respondent's evidence taken on 20 June be transcribed, as sought by the wife, and a copy be made available to the parties.  I will also order that the wife give an irrevocable authority to Centrelink, to provide all the material set out in the subpoena, as ordered by Bennett J. 

1. There is an application for costs.  I appreciate the basis for it and have read what Bennett J. said about costs at the earlier hearing.  My view is that the costs of this day will need to be determined in the trial, when more is known.  I will reserve the husband’s costs of today.

I certify  that the preceding
13 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2007.

…………………………………………
Associate.