HANIF & DALLAL - [2020] FamCAFC 305

FAMILY COURT OF AUSTRALIA

HANIF & DALLAL

[2020] FamCAFC 305

FAMILY LAW – APPEAL – DIVORCE – Where the grounds of appeal are incompetent and do not identify any appealable errors made by the primary judge – Where there is no prospect of success of the grounds of appeal – Appeal dismissed.

Family Law Act 1975 (Cth) s 96AA

Henry & Henry [1996] 185 CLR 571

APPELLANT:

Ms Hanif

RESPONDENT:

Mr Dallal

FILE NUMBER:

MLC

805

2020

APPEAL NUMBER:

SOA

2020

DATE DELIVERED:

30 November 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide by video link

JUDGMENT OF:

Strickland J

HEARING DATE:

30 November 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 August 2020

LOWER COURT MNC:

[2020] FCCA 2313

REPRESENTATION

THE APPELLANT:

In Person

THE RESPONDENT:

In Person

Orders made on 30 November 2020

The Notice of Appeal filed on 17 September 2020 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hanif & Dallal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
ADELAIDE

Appeal Number: SOA 78 of 2020
File Number: MLC 805 of 2020

Ms Hanif

Appellant

And

Mr Dallal

EX TEMPORE REASONS FOR JUDGMENT

Introduction

On 17 September 2020, Ms Hanif (“the wife”) filed a Notice of Appeal against orders made by a Judge of the Federal Circuit Court of Australia on 20 August 2020. Those orders were primarily a divorce order, and in the context of that order, there was a declaration made that the court was satisfied that the only child of the marriage who had not attained the age of 18 years was X (“the child”) born in 2011. The court also declared that it was satisfied that that child was the only relevant child, and proper arrangements in all the circumstances had been made for his care, welfare and development.
Although all of those orders are said to be the subject of the appeal, the only order that is in fact challenged in the grounds of appeal, is the divorce order itself. Thus, I will only consider the appeal against that order.
The appeal is opposed by Mr Dallal (“the husband”).
The relevant findings of the primary judge leading to the making of the divorce order were first, that the marriage was proved, and pausing there, there was no issue about that; it was common ground that the parties had married in 2010. Secondly, that the husband was at all material times domiciled in Australia, and as I read his Honour’s reasons for judgment and the relevant documents, that was not in issue either. Thirdly, the ground for the application for a divorce order, namely, that the marriage had broken down irretrievably was proved, and that was proved on the basis of his Honour finding that the parties had been separated for at least 12 months.

Background

The initial application for divorce was filed by the husband on 28 January 2020, and that application came before a Registrar on 18 June 2020 when that Registrar made a divorce order.
The wife then filed an Application for Review on 7 July 2020, and that was the application which brought the matter before the primary judge. Of course, such an application requires the matter to be heard de novo, and there was no requirement for the wife to establish that the Registrar had made an error. In other words, it was incumbent upon his Honour to start the matter afresh, consider the evidence, make findings based on that evidence, and ultimately, make the order that was appropriate, and that is what his Honour did.
The issues that his Honour identified in his reasons for judgment were, first, the wife asserted that the Federal Circuit Court of Australia had no jurisdiction as the parties and their son were Indian citizens, and in that regard the wife sought that the matter be transferred to an Indian court. The second issue before his Honour was the assertion by the wife that the parties were not, in fact, separated.
His Honour had before him the application of the husband seeking the divorce order, he had the Response of the wife opposing the divorce order, and affidavits which had been filed by each party.

The Appeal

In the Notice of Appeal there are nine grounds of appeal raised as follows:
1.In respect to para 14 of His Majesty order, it is said that on … August wife wished him birthday, but actually it was my birthday and Mr Dallal wished me. On … September I wished him on his birthday and said “I will come.” Hence there was no intention of separation.
2.In respect to para 15, I had sent various emails to the Honourable Judge’s chamber as in India COVID is at its peak and it was not possible to go to shop for sendinh documents and affidavits as here it was complete lockdown. It must be noted I was not able to present my case in proper way as due to financial crisis I cannot afford to hire a lawyer from India. It must be noted that I am now staying in India with our child.
3.In respect to para 18, regarding jurisdiction I got my PR during the hearing when the Honourable Judge directed Mr Dallal to send our PR. But I could not avail the facility of PR like getting legal aid from Australian Government as I was in India. I could not put evidence of criminal proceedings against Mr Dallal as it is in the N language. (Copies are enclosed here). In page no 6 of the certified copy of FIR, police inspector had registered a case against him under various Indian penal code and … Protection of Rights on Marriage (FIR No …/..). And the case is under subjudice in Court of City D in India. (This may be seen on the first page of the certified copy of FIR although it is in the N language).
4.In respect to para 15, my emphasis was on not only to get PR back from my husband but also to stay with my husband along with our child.
5.In respect to para 21, one year I lived apart due to our child’s education with mutual consent of my husband Mr Dallal. There are many whatsapp messages which show that separation which he mentioned in [early] 2019 was just a momentary quarrel between husband and wife.
6.In respect to para 21, His Majesty skipped to thke into an account the messages send by my husband in August in which he refers to me as a wife (copy attached).
7.In respect to para 22, as Hon. Judge said that one year of sepration is established on probabilities. Benefit of doubt arising, out of probabilities should go in favour of wife. Further the court should consider the very strong circumstancial evidence that being a lady and having a [young] child (both depending on my husband Mr Dallal) vannot think of any sepration as stated in my initial response that I want to live with my husband along with our child. Hence Mr Dallal’s contention of one year sepration should not be accepted.
8.In respect to para 26, the Hon. Judge mentions that he interprets that wife does not want to come to Australia and live with his husband. Whereas I have been emphatically saying I want to live with my husband and child. Had I not wanted to stay with my husaband, why would I oppose divorse petition filed by my husband.
9.In respect to para 6, if our relation would have been so bitter then why would we go as a family to City E for holiday trip, it’s beyond understanding.
(Errors and omissions as per original)
Unfortunately, those nine grounds are, in effect, a narrative, and do nothing more than set out the facts as asserted by the wife. Nowhere in those grounds of appeal can any appealable error by the primary judge be discerned, and that of course, as I have explained to the wife, is what is necessary for her to succeed.
In other words, this is not an opportunity for the wife to simply run the same case that she did before the primary judge before this Court. The onus is on her to demonstrate appealable error by the primary judge. In other words, an error of fact or law or, indeed, of principle, but, as I say, the grounds of appeal do not do that.
However, I will address some of the matters which are clearly of importance to the wife, as she has repeated them to this Court in her oral submissions today. She has indicated that there are criminal proceedings on foot in India because, it is her assertion, the husband is not able to obtain a divorce in Australia when the parties are still Indian citizens. Pausing there, that cannot, and does not, have relevance to the appeal. I note that that was a submission made to his Honour and his Honour, in effect, made the same comment, but in relation to the application that was before him.
The wife has also suggested that if a divorce is granted in Australia, then that will provide difficulties for her in India. Now, that was also a matter put before the primary judge, but I note there was absolutely no evidence presented supporting that assertion. In any event, that factor, even assuming that it is correct, also has no relevance to this appeal, and cannot be a basis for it succeeding. His Honour dealt with that submission appropriately (e.g. see [20]) and, importantly, it did not go to the matters that his Honour had to find in order to make a divorce order, namely, the proving of the marriage, the domicile of the husband and, most importantly, the ground for a divorce order being made, namely, that the marriage had broken down irretrievably, and that being proved on the basis of his Honour finding that there had been a 12 month separation.
The question of separation was clearly a primary issue before his Honour, and his Honour, in my view, addressed that appropriately, considered the evidence that was before him, made appropriate findings, and gave reasons for those findings. I refer in particular to [13] of his Honour’s reasons where his Honour set out what the father said about the separation, and what happened when he communicated his intention to divorce to the wife, namely, on 23 January 2019. Significantly, his Honour in that paragraph referred to a text message that the wife then sent to the husband in response to that communication and the text read:
Send me the divorce paper and I will sign it.
I note that his Honour did not solely rely on the affidavit material of the parties. He permitted the wife to cross-examine the husband, and that adds weight to his Honour’s reasons because, of course, where there is dispute on the facts, the ability of a primary judge to see and hear the parties give evidence is something that this Court does not have the benefit of.
Pausing there, I also mention that before his Honour the wife also sought, as I indicated earlier, that the matter be transferred to an Indian court, saying the Federal Circuit Court of Australia had no jurisdiction. His Honour dealt with that in his reasons for judgment, and dealt with it, in my view, appropriately, and his reasons are beyond reproach.
His Honour referred in [20] to the High Court decision of Henry & Henry [1996] 185 CLR 571, which provides the test as to where proceedings should take place, and the test in this instance, was whether Australia is a clearly inappropriate forum. His Honour said this:
In circumstances where the applicant husband is living here and has every settled intention of remaining here and is a permanent resident of Australia, there is no question that Australia is not a clearly inappropriate forum.
There is no error there by his Honour, and no error demonstrated by the wife in this appeal in that regard.
Section 96AA of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:
96AA Appeal may be dismissed if no reasonable prospect of success
(1) If:
(a) an appeal has been instituted in a court under this Part; and
(b) having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal);
the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
In my view, that section applies here. The grounds of appeal do not demonstrate any reasonable prospect of success, and I will go as far as to say that the grounds of appeal do not demonstrate any prospect of success.
To repeat, they do not identify any appealable error by the primary judge, and the appeal is doomed to fail, and thus, I propose to dismiss the Notice of Appeal.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 30 November 2020.

Associate:

Date: 11 December 2020