Hardikar & Pathak
[2022] FedCFamC2F 420
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hardikar & Pathak [2022] FedCFamC2F 420
File number(s): MLC 4898 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 5 April 2022 Catchwords: FAMILY LAW – clearly inappropriate forum - contested divorce - application for divorce filed by Husband in Australia – marriage related proceedings commenced by the Wife in India – criminal related proceedings against the Husband commenced by the Wife in India – where the Wife opposes the divorce application – where the Wife claims the Husband did not serve the divorce application in accordance with the Hague Convention – consideration of whether Australia is a clearly inappropriate forum to hear the divorce application – divorce order made. Legislation: Evidence Act 1995 (Cth), s 174, 175
Family Law Act 1975 (Cth) s 39, 48, 49, 104
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 2.49
Dowry Prohibition Act 1961 (India)
Hindu Marriage Act 1955 (India) s13(1)(a)
Indian Penal Code 1860 (India)
Protection of Women from Domestic Violence Act 2005 (India)
Cases cited: Henry v Henry (1996) 185 CLR 571
Hope v Hope (1854) 4 De GM & G 328
Navarro v Jurado [2010] 44 Fam LR 310
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
Division: Division 2 Family Law Number of paragraphs: 92 Date of hearing: 23 March 2022 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent appeared in person ORDERS
MLC 4898 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HARDIKAR
Applicant
AND: MS PATHAK
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
5 APRIL 2022
THE COURT ORDERS THAT:
1.A divorce order is granted with respect to the parties’ marriage in 2018 in India.
2.Divorce to become absolute in one month from the date of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family 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 the pseudonym Hardikar & Pathak has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is an application for an order for divorce filed by the Husband on 3 May 2021. The application is opposed by the Wife.
For the reasons that follow, I have decided to issue the order for divorce.
BACKGROUND FACTS
Many of the facts in this matter are not in dispute, and I have set them out below. Where applicable, I have noted where matters are not agreed.
The Husband is an Australian citizen and resides in Australia. The Wife is an Indian citizen and currently resides in India. There are no children of the marriage.
The parties were married in 2018 in India. They met each other in person for the first time only a few days before the marriage.
The marriage occurred in a temple in India surrounded by, it seems, a few family and friends. The marriage occurred pursuant to the Hindu Marriage Act 1955 (India) (‘Hindu Marriage Act’).
A few days after the marriage ceremony in India, the Husband returned to Australia. The Wife remained in India.
In the period from the Husband’s return to Australia in mid-2018 until early 2019:
(a)the Husband lived in rental accommodation in Australia;
(b)the Wife lived with her parents in India;
(c)the parties did not share finances or financial support. The Husband supported himself in Australia. The Wife supported herself in India;
(d)the Husband spent some money for the Wife's air ticket to Australia and her visa to Australia prior to the Wife's arrival in Australia in early 2019;
(e)the parties spoke to each other daily by telephone;
(f)friends and family knew the parties were married;
(g)the Husband returned to India in late 2018 to prepare for the wedding celebrations;
(h)the parties celebrated their wedding at a wedding ceremony in India in early 2019 attended by around 400-500 people.
Following the wedding ceremony in India, it appears the parties relationship began to deteriorate. The Wife makes various allegations against the Husband about what occurred during the honeymoon in Country B. It is unnecessary to detail or resolve those allegations now.
Following the honeymoon, from early 2019 to mid-2019, the parties largely lived together in Australia. During this period:
(a)The parties' relationship continued to deteriorate from the moment they both arrived in Australia. The Husband says they endured many arguments or fights, which seemed to end with the Wife asking to be returned to India. The Wife agrees there were many arguments. The Wife also says she was subjected to violence. The Husband denies being violent. It is unnecessary to determine these specific allegations now, except to note that from the beginning, it appears there were significant difficulties within the relationship;
(b)The Wife was not in paid employment. The Husband financially supported the Wife;
(c)The parties shared a bedroom and engaged in sexual relations;
(d)The Wife did all the cooking and laundry. The Husband says he did most of the cleaning and the Wife did some. I accept the Husband did some of the cleaning, but not all of it.
On 14 September 2019, the Wife left Australia following a fight with the Husband.
On 22 September 2019, Husband wrote to the Wife. He set out a range of issues relating to the marriage before stating that 'we can still restore our relationship only if your [sic] promise to abide by these commitments'. He also stated that 'if… you think I am asking quite a lot from you, we can amicably resolve and move on in our lives'.
On 26 September 2019, the Wife wrote to the Husband setting out a range of issues with respect to the marriage and stated that 'we need an unbiased third party to help us out if we even remotely want to make things work'.
In October 2019, the Wife travelled to the United States.
In the period between September 2019 and up to September 2020, the parties attempted to reconcile through various means. This included attempting to resolve their differences themselves as noted above, counselling, and the involvement of a religious leader. Attempts at reconciliation were not successful. The Wife never returned to Australia.
On 18 September 2020, the Husband filed an application for divorce in this Court ('first application'). He subsequently withdrew the first application, he says, because there was an agreement between the parties to obtain a mutual divorce in India. The Wife denies she ever agreed to a mutual divorce. In any event, the Husband discontinued the first application on 30 November 2020.
On 8 November 2020, the Husband asserts the Wife’s father instructed him to prepare divorce papers.
On 3 May 2021, the Husband filed the present application for divorce orders in this Court.
On 14 May 2021, the Husband sent an email to the Wife at her email address attaching the application for divorce and seeking an acknowledgement of service.
On 25 June 2021, the Husband sent a further email to the Wife at the Wife's email address in which he forwarded the application for divorce, and again asked the Wife to acknowledge service.
On 26 July 2021, the Husband again forwarded to the Wife the divorce application and related paperwork, and again asked her to confirm service. This email was sent to her second email address.
On 29 July 2021, the Wife made a complaint to the police in India alleging various contraventions by the Husband of the Indian Penal Code 1860 (India) (‘Indian Penal Code’).
On 11 August 2021, the Wife sent an email to the Husband's employer in Australia. She informed the Husband's employer that a criminal complaint had been made against the Husband. She asked the Husband's employer to 'take notice of this email and take appropriate action against your employee'. The email was sent by the Wife from the Wife's email address.
On around 7 September 2021, the Wife issued proceedings seeking a divorce under section 13(1)(a) of the Hindu Marriage Act. The petition indicates that dissolution of the marriage is sought on the ground of 'cruelty'. In addition to the proceedings above, it appears that the Wife has also issued other proceedings in courts in India.
On 10 September 2021, the Wife filed her Response in this Court to the divorce application. The email address listed by the Wife for service upon her in the Response is the Wife's second email address.
On 13 September 2021, the matter was called on before a Registrar. The Registrar made orders that the Wife file any amended response and any further affidavit by 4 February 2022. The Husband was ordered to file any further affidavit by 25 February 2022. The Registrar also listed the application for final hearing or trial before me on 18 March 2022. Both the Husband and the Wife appeared before the Registrar using Microsoft Teams.
Ultimately following the orders of the Registrar, the Husband filed two further affidavits on 12 September 2021 and 25 February 2022. Up to the hearing before the Registrar, the Wife had filed a Response and an affidavit dated 13 September 2021. Following the orders made by the Registrar for the filing of further material, the Wife filed an Amended Response and an affidavit dated 12 March 2022.
PRELIMINARY MATTERS
I have taken the Wife's Amended Response and affidavit of 12 March 2022 into account in deciding this matter. This is despite the fact that the Wife filed these materials approximately five weeks after the timeline set by the Registrar.
I note that the Husband attached affidavits of Mr D, Mr C and Mr E to his affidavit and asked that they be considered. The Wife objected to these affidavits being relied on. Neither Mr D nor Mr E were available for cross examination. I have not had regard to their affidavits. Mr C was present and available for cross examination. His evidence is not significant and I give it no weight.
THE APPLICATION UNDER THE FAMILY LAW ACT 1975
The Husband seeks a divorce under section 48 of the Family Law Act 1975 ('Act'). That section provides 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.
Separation is defined in section 49 of the Act as follows:
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.
CLAIMS AND ISSUES
The Husband claims that the parties have been separated for more than 12 months since the filing of the application for divorce in this Court. He therefore asks this Court to make an order for divorce.
The Wife opposes the order for divorce being granted on the following bases:
(a)She has not been served with the Husband's application in accordance with the service requirements of the 'Hague Convention';
(b)The Court does not have jurisdiction to grant the divorce order, 'since the marriage between the parties to this application [sic] solemnized in India as per Hindu customs and under the Hindu Marriage Act 1955', and because the Wife has commenced divorce proceedings in India; and
(c)The Wife says the parties separated in late 2020. Accordingly, the parties were not separated and did not live separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for a divorce order. Accordingly, the requirements in section 48(2) of the Act cannot be satisfied.
I note that in the context of this matter, each party makes a variety of complaints against the other. The Wife claims, for example, that she was promised that the Husband would support her application for a visa to Australia. She also claims that the Husband and his family made demands on her and her family for money. The Husband refutes those claims and in turn claims that the Wife's family made demands on his family for money. It is unnecessary for me in this matter to resolve those claims.
I propose to consider each of the matters raised by the Wife in turn.
SERVICE OF THESE PROCEEDINGS ON THE WIFE
The Wife contends at the outset that the Court should not grant the orders sought by the Husband because he has failed to serve the application on her in accordance with the 'Hague Convention'. By this, I assume she refers to the 'Hague Service Convention'. The position the Wife takes reflects in essence what is contained in rule 2.49 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘Family Law Rules’).
The purpose of service of documents is to alert a party that a case has been brought against him or her, to provide notice of the case that party needs to meet and to give the party the opportunity to resist any application: Hope v Hope (1854) 4 De GM & G 328 at 342; 43 ER 534. In this matter, the Wife is well aware of the case against her. The Wife was aware of the divorce application from at least 14 May 2021 when the Husband sent her a copy of the application by email to the Wife's email address. This address was clearly operational because the Wife used it to send an email to the Husband's employer (after she had received the divorce application from the Husband) on 11 August 2021. Moreover, the Husband sent the divorce application documents to the Wife's second email address on 26 July 2021. The Wife's second email address is the address for service that the Wife ultimately used as her address for service in this proceeding.
There is then the Wife's participation in these proceedings. She first filed a Response over six months ago on 10 September 2021 and filed her first supporting affidavit on 13 September 2021. She appeared before the Registrar on 13 September 2021 when orders were made listing the matter for final hearing or trial, and when orders were made for the filing of material. Since that time, the Wife has filed in the lead up to the final hearing an Amended Response and a further affidavit. She appeared and participated in a hearing before me. She knows the case against her, and has had every opportunity to address it. She has also raised her own submissions and arguments as to why the divorce order should not be granted. She has not been denied procedural fairness or natural justice, and has actively resisted the application.
In short, while formal service may not have occurred, any failure is not material for the reasons set out above. To the extent I may be required to do so, this is a case in which I would waive compliance with the Family Law Rules in relation to service. I regard the Wife as having been served with the application and supporting material.
THE PROCEEDINGS IN INDIA
The next matter is the Wife's contention that the proceedings before this Court should not proceed because there are already divorce proceedings before the Family Court in India. The Wife says this Court does not have jurisdiction in the matter.
Section 39 of the Act sets out the jurisdiction of the Court in relation to matrimonial causes. Subsection (3) to section 39 of the Act relevantly provides that proceedings for a divorce order may be instituted if, at the date on which the application for the order is filed in a court, 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 one year immediately preceding that date.
In the present matter, the Husband is a citizen of Australia, and is ordinarily domiciled in Australia. The Court therefore has jurisdiction to hear the application.
The real issue raised by the Wife, which she confirmed during the hearing, is her objection to the matter being heard in Australia. Properly understood, the Wife's claims are in effect that this Court is a 'clearly inappropriate forum' for the matter to proceed. I now proceed to consider this issue.
The proceedings commenced by the Wife in India
The Wife says she has commenced the following proceedings against the Husband in India:
(a)a police complaint which has led to the police registering a criminal case against the Husband under section 498A, 323 and 34 of the Indian Penal Code. The complaint was made on 25 July 2021. The Court has a copy of the complaint the Wife made to police. It appears that charges against the Husband may arise not only under the sections of the Indian Penal Code noted above, but also under the Dowry Prohibition Act 1961 (India) (‘Dowry Prohibition Act’). The Wife says this case relates to demands by the Husband and his family for dowry from her and her family. A part of a record of proceedings before the Indian courts is before this Court and it appears that the case progressed through that Court on 24 - 25 February 2022. It also appears that an arrest warrant was issued by the Court for the Husband. It appears that the Husband was represented by legal counsel at the hearing and that his parents were present. The case is to be heard again on 24 May 2022. The Court does not have a copy of the charge sheet in the matter. It is not known when the case will be finalised.
(b)a divorce proceeding under section 13(1)(a) of the Hindu Marriage Act. The Court has before it the petition filed by the Wife for divorce in India and supporting documentation. The proceeding was instituted on 7 September 2021. Divorce is sought on the ground of 'cruelty'. A summons appears to have been issued to the Husband on 16 September 2021 directing him to appear at the court on 20 December 2021. It is common ground the Husband did not appear on that date, and that the Husband has not participated at all in the proceeding. The Wife says the matter will return to the Family Court in India on 11 April 2022 and that if the Husband does not appear, the divorce order may be granted in his absence.
(c)a proceeding seeking maintenance from the Husband. The Wife says this proceeding was instituted about the same time as the divorce proceeding. The proceeding is in the Family Court of India and is brought under 'section 125 of the Criminal Procedure Court of India'. That court has apparently issued a summons for the Husband to appear in that matter on 11 April 2022. This Court does not have any documents before it in relation to this proceeding. The Husband had only recently been notified of this proceeding. He indicated before me he did not intend to participate in this proceeding or any other civil proceeding in India.
(d)a proceeding alleging domestic violence against the Husband under the Protection of Women from Domestic Violence Act 2005 (India) which is pending at the Court of Judicial Magistrate First Class in City F. The Wife says the case was instituted before October 2021 and probably around September 2021. A summons appears to have been issued to the Husband on 24 November 2021 directing him to appear at the Court on 8 January 2022. It is common ground he did not appear on that date. The case was to return to the Court on 24 March 2022, the day after the hearing of this matter. This Court does not have before it any of the initiating documents from this proceeding. It seems common ground that the Husband has appeared in this matter through his representatives.
Legal principles
If the Court is satisfied that Australia is a clearly inappropriate forum in which to determine the proceedings, the Court must 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"). In Talwar & Sarai [2018] FamCAFC 152 (’Talwar'), a Full Court of the Family Court summarised the applicable principles and approach at [19] - [27]. In Talwar, the Court assessed the matter by reference to the principles in Henry, an approach which I adopt in the present matter.
Whether each Court will recognise a divorce order made by the other
The Wife has not placed before the Court any of the statutes or laws of India on which the Indian causes of action are based. The Wife did place before the Court three pages from the Hindu Marriage Act comprising the cover page, an index page on the first page of the statute. Plainly the full statute is not in evidence before me. It would have been open for me to accept the full statute into evidence, other Indian statutes and related evidence about the law of India pursuant to section 174 and 175 of the Evidence Act 1995. Regrettably, I do not have such evidence before me. I note the caution in Talwar that a judge ought not conduct his or her own research into a foreign law after the hearing has finished (at [44]), and I decline to do so in this case. I also note the further observation in Talwar that a party seeking to rely on a foreign law bears the onus of proving it and that in the absence of expert evidence, the Court should proceed cautiously (at [46]).
The Wife did not adduce any expert evidence before me. The Husband sought to rely on an opinion prepared by Mr G, Advocate (‘Mr G’). Mr G appears to be a legal practitioner based in India who has prepared a letter of advice on a range of issues including whether the Courts in India 'have jurisdiction to hear the matter' and whether any divorce order granted by this Court will be recognised in India. The Wife objected to the Husband relying on the opinion of Mr G. I agree with the Wife's objections. I am unable to place any weight on the opinion of Mr G. Among other things, it is not clear that Mr G's opinion has been given under oath. The Husband asserted the opinion had been given under oath. I am not satisfied of that given the purported oath or jurat is written in Hindi and no translation was provided. In any event, Mr G was not available for cross examination. The Wife could not question him, and I could not ask any clarifying questions of him.
The position then, is that there is no evidence before this Court in relation to whether a court in India would at this time and in all the circumstances, recognise a divorce order made by this Court.
Section 104 of the Act deals with overseas decrees. In particular, section 104(3) of the Act sets out the circumstances in which a divorce or annulment of a marriage overseas may be recognised in Australia. It seems that the circumstances contemplated in section 104(3) of the Act exist in this case. That means if and when a divorce order is made India, it seems it will be recognised in Australia.
Which forum can provide more effectively for the complete resolution of the parties matter?
As noted above, the Wife has filed a range of proceedings in India. Those proceedings raise matters outside of, or in addition to, seeking an order for divorce. Given the lack of evidence before me, I am unable to make any finding as to whether the proceedings commenced by the Wife in India are capable of being resolved in Australia. The position therefore is that complete relief in respect of all claims appears to be available in India, whereas only the divorce proceeding (and potentially the maintenance proceeding) are capable of resolution in Australia.
While not the principal issue in respect of this criteria, I note for completeness, that the Wife filed extensive material in this proceeding and also addressed the Court orally. Nothing in the material she filed or the submissions she made provides any indication that the Wife will be prevented from continuing the proceedings (being the divorce proceeding in India and the other proceeding she has commenced in India) if a divorce order is granted by this Court.
The order in which the proceedings were instituted and their current status
It is relevant to note that the Husband first made an application to this Court for a divorce order on 18 September 2020. This application was withdrawn on around 30 November 2020. The Husband says it was withdrawn on the basis that both parties had agreed to obtain a mutual divorce in India. The Wife denies this. I prefer the evidence of the Husband on this issue. The withdrawal of the application made on 18 September 2020 tends to support the Husband's version of events that some position was reached to try and resolve matters by agreement.
In any event, the Husband filed the present application for divorce in this Court on 3 May 2021. The Wife's application to the Family Court in India for divorce was filed some four months later on 7 September 2021.
The following observations may be made about the above. First, the Husband has clearly wanted a divorce order since at least the time he first filed an application in this Court in September 2020. Secondly, the Wife was aware from at least 14 May 2021 that the Husband had renewed his application for a divorce in this Court in Australia. Third, it took the Wife a further four months to file a petition for divorce in the Family Court of India during which time she did not engage with the Husband's application in this Court, even though she knew about it as it had been sent to her. Fourth, not only did the Wife institute divorce proceedings but instituted a number of other proceedings at or around that time as noted earlier. Fifth, notwithstanding her complaints about service and notwithstanding that she had known about the divorce application in this Court since 14 May 2021, the Wife only filed her first Response in this Court on 10 September 2021. She did so only after she had commenced a number of proceedings in India.
There is one other observation to be made about the behaviour of the Wife during the period noted in the paragraph above. On 11 August 2021, the Wife sent an email to the Husband's employer. As I have noted above, she informed the Husband's employer about the criminal charges against the Husband in India and demanded that the employer take action against the Husband. The Wife did not explain why she thought it necessary to send this communication to the Husband's employer. After all, she had his contact details and his email address and could have sent it to him directly. This action strongly suggests that the Wife set out to damage the Husband and his reputation.
In my view, the conduct of the Wife is plain to see from what is set out above. She avoided dealing with or engaging with the proceeding in this Court in order to make a number of complaints against the Husband in India, and to commence a number of proceedings against him in India. Only once she had taken those steps including the step of embarrassing the Husband front of his employer did she engage with the proceeding in this Court. My very strong suspicion is that the Wife embarked upon this course in order to obtain maximum advantage over the Husband in any litigation, and to attempt to ensure that any and all proceedings were conducted in India and on her terms.
There is one other matter to consider. The matter before me has proceeded as a final hearing or trial. That is, each party has had the opportunity to file affidavit material and other material and has done so. Each party appeared before me to make submissions, answer questions, and had the opportunity to question each other. I am in a position now to finalise the matter. In contrast, there is not any evidence before me that any or all of the proceedings in India are close to being finalised. The Wife says that the divorce proceeding may be finalised on the next occasion if the Husband does not appear. That is speculation on her part and I give it little weight.
The connection of the parties and their marriage with each jurisdiction and the issues on which relief may depend in these jurisdictions
The parties met face to face for the first time in India and were married a few days later in India. The marriage ceremony was conducted in India. The marriage was effected pursuant to the Hindu Marriage Act. These are matters on which the Wife places some emphasis.
While the marriage was effected in India and under Indian law, the following matters are relevant. In the period from the marriage up to early 2019, the Husband lived in Australia and the Wife lived in India. That part of the marriage is characterised by the Husband and the Wife each living in a separate country. The period early 2019 to mid-2019 is the only period where for any length of time, the parties live together domestically as a couple. That occurred largely in Australia. Finally, in the period after mid-2019, the Husband continued to live in Australia. The Wife, it can be inferred, spent most of her time in India, though she seems to also have spent some indeterminate period in the United States. One immediate observation to be made about the events above is that at no time has the Husband spent any significant time in India, other than in the days before the marriage, and in the month before the wedding ceremony in early 2019. He has remained in Australia. In the context of the relationship, the Wife, in contrast, has spent a significant amount of time in Australia (as one part of a married couple) as well significant periods of time in India.
Whether the parties are able to participate in the respective jurisdictions on an equal footing
The Wife has no family, friends or connections in Australia. Notwithstanding that, she has been able to effectively participate in this proceeding. She filed a comprehensive Response and then, later, an Amended Response. She filed two affidavits in the proceeding. She speaks and writes English. She attended the hearing before me, and also before the Registrar. At the hearing, she represented herself vigorously. She has made submissions not just going to the facts of the matter, but has attempted to address the relevant law. In summary, there has not been any barrier to her effective participation in these proceedings.
The Husband has family in India. He clearly has the capacity to participate in proceedings in India and is represented in two of the proceedings initiated by the Wife in India. His non participation in the remaining two proceedings in India seem to largely be a choice he has made. I infer that if the proceedings in India continued, he would be able to represent himself and there would not be a barrier to him doing so.
While there seems nothing that would prevent the Husband from effectively participating in the divorce proceedings in India, I note that the Husband is subject to, among other things, a warrant for arrest. He claims he may be subjected to jail time if he returns to India. I give that assertion little weight. There is no evidence before me that he would be jailed if he returned to India, or that he would be subjected to any other detriment (other than an inconvenience which might arise from the need to travel to India).
The issues which relief might depend in each of the jurisdictions
In these proceedings, the divorce order will issue if the requirements of section 48 of the Act are satisfied. There is no necessity for a party to show fault or any other similar ground. All that is required is that the parties have been separated for 12 months prior to the date the application for divorce orders were filed.
It is apparent from the divorce petition filed by the Wife in the Family Court of India that the Wife is seeking a divorce order on the grounds of 'cruelty'. There is not sufficient evidence before me as to the law in India so I am not able to form a view as to whether this ground might be made out.
There is not any evidence before me which specifically deals with what issues arise in relation to the other proceedings commenced by the Wife in India.
Are these proceedings sufficiently ‘oppressive and vexatious’ to the Wife to justify a stay?
As I have noted, there is insufficient evidence before me in relation to the effect of any order this Court might make on proceedings that the wife has instituted in India. In that circumstance, it is difficult to draw any conclusion that these proceedings are oppressive and vexatious to the Wife. I am certainly not able to draw any conclusion, similar to what has been drawn in previous cases like Navarro v Jurado [2010] 44 Fam LR 310 or in Talwar, that granting a divorce order here would produce an outcome where the Husband will be divorced in Australia, but the Wife will not be divorced in India.
On the other hand, all of the proceedings in India were commenced after the Husband commenced this proceeding in Australia. That might well be regarded as prima facie vexatious and oppressive in the sense those terms are used in Voth, particularly given the circumstances to which I have referred above.
CONCLUSION ON FORUM
I have considered each of the various factors above and weighed them having regard to the evidence before me. In my view, the Wife has not demonstrated 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
I turn now to consider the application for divorce orders by the Husband. I have set out earlier the relevant sections of the Act.
When did separation occur?
The Husband contends that the parties separated in mid-2019 when the Wife returned to India. The Wife contends that separation occurred in late 2020.
The Husband's account of what occurred on 14 September 2019 is as follows. He says his parents were present with the Wife and he was in the process of cleaning the house before going out. The Wife remarked, in front of his parents, that he should clean everything. He asked for help to move a rug. The Wife and another person did not move and it was his mother who helped him. He became angry, announced his mother was there for a holiday, and left the house to go to a physiotherapy appointment. While at the appointment the Wife called him. A discussion ensued which ended with the Wife saying that she did not want to live with him, and she wanted to go home. He says he returned from the physio and the fight between them continued. The Wife told him to book a ticket for her return and that if he did not do that, her brother would pay for her return ticket. The Husband says he called her family members to tell them what was going on. They told him to let her go, and that the matter could be discussed later. He says that he drove the Wife to the airport and told her 'you should have never taken such a big step, because now it's over and done for me'. By this, he says he conveyed to her his intention to end the marriage.
I asked the Wife directly what happened on 14 September 2019. She did not answer that question directly on the first occasion. Instead, the Wife, consistently with what she says in her affidavits, said that she had to leave the country because her visa had expired, and then re-enter the country at a later time. She explained that a trip to New Zealand had been planned but the visas had not been forthcoming. The Husband's father suggested she go to Country H. She did not want to go because it was unsafe. In that context, she thought it best to return to India. When I pressed a second time as to what happened on 14 September 2019, she agreed that she and the Husband had fought, and that he had driven her to the airport. She denied being told by the Husband that the marriage was over.
I asked the Wife what evidence she had in support of her position that the relationship continued until late 2020. The Wife pointed to a number of matters. She stated that she and the Husband had planned to go to the United States to visit her brother who was having a baby with his partner. She stated that the Husband continued to support her application for a visa to New Zealand. She says that they continued to talk very often after September 2019, and would text and send emails. She claims they were in the process of buying a house and that she sent him links to houses.
I also asked the Wife what happened in late 2020 which caused her to contend that separation occurred then. The Wife gave an unclear and confusing answer. She stated, among other things, that it had been a long time, that she didn't know, that she had been trying very hard, that the Husband had asked for more money, and that she felt that she should move on.
I propose to deal firstly with the Wife's contention that separation occurred in late 2020. In my view, separation did not occur at this time for the reasons that follow.
First, the Wife's oral evidence was not convincing. She advanced a number of reasons why the relationship ended at this time in an unconvincing manner. Tellingly, one of her responses was 'I don't know'. She also said, somewhat vaguely, that she thought it was time to move on. She admitted she did not tell the Husband in late 2020 that it was her view the relationship was at an end.
Second, the Wife's evidence was inconsistent. For example, in the hearing before me she claims late 2020 as the separation date. However, in her affidavit, when speaking about the events on or around 14 September 2019, she conceded that the Husband 'wanted to drive [her] out of the marital home'. The explanations she gave me in relation to when she discussed travelling with the Husband to the United States were also confusing and on one view inconsistent.
Third, the Wife did not produce any corroborating evidence to support her sworn assertions. She has not produced a record of the numerous telephone calls she says occurred between the Husband and her in the period from September 2019 to November 2020. She has not produced any of the number of emails she says passed between them. She has not produced the text messages. It is curious that the Wife introduced into evidence emails passing between her and the Husband relating to a visa application to travel to New Zealand in 2019 in support of her contention that separation occurred in late 2020, but did not produce any other email that demonstrates that the parties were treating each other in a manner suggestive of the marriage remaining on foot. Similarly, she produced Whatsapp messages from mid-2020 that showed her and the Husband discussing housing, but did not produce any other text messages other than the text messages where they wished each other well on Diwali. The Wife was aware of the importance of producing records to confirm her account of events, but failed to do so.
In this respect, the Husband attached to his affidavit material WhatsApp messages showing discussions between the parties during 2020. Those messages show the parties in communication about various issues including attempting to reconcile. The messages also contain messages from the Husband that he does not have it in him to try to fix the relationship any longer. If anything, the messages that are before the Court do not support the Wife’s account.
The Wife says the Husband and his family continued to demand money from her and her family after September 2019 and up to late 2020. No documents were produced to support such claims.
Part of the evidence relied on by the Wife to support her claim that the parties were not separated until late 2020 was that the parties were intending to buy a house together. The Wife placed before the Court Whatsapp messages from around mid-2020 between the Husband and the Wife which appear to attach links to real estate in the United States. The Husband accepts there was a discussion about houses over Whatsapp but says it was simply the Wife showing him what could be purchased in the US, and denies there was any intention for them to purchase a house together. I have viewed the Whatsapp messages. There is nothing in them that discloses any intention or plan by the parties to live together, or to buy a house together. The content of the messages tend to support the Husband's version of events- this was simply two individuals having a discussion about an issue over WhatsApp.
For the above reasons, I do not accept the Wife's contention that the parties separated in late 2020.
It is then necessary to consider the Husband's contention that the parties separated on 14 September 2019. In this respect, I note that the Wife when pressed largely confirmed the Husband's account of what occurred on 14 September 2019, i.e. that there was a fight between them and that she departed from Australia. The Wife, of course, says that her departure was necessary in order for her to comply with her visa conditions. She gives the same evidence as part of her divorce application in India and in that material states that she was not permitted to return to Australia unless her family paid further money for a visa. There are difficulties with this evidence of the Wife. She did not produce the visa documentation to support the assertion. It is also inconsistent with what she says in her letter to the Husband of 26 September 2019 where she claims that he put her on a plane, and where she fails to mention any issue with the visa. It is also inconsistent with the evidence in her affidavit that on around 14 September 2019, the Husband wanted to drive her out of the marital home. These matters indicate that the Wife's evidence in relation to her stated reason for leaving Australia in September 2019 ought not be accepted.
The next issue is whether the Husband told the Wife at the airport on 14 September 2019 that the marriage was over. In my view, the Husband did tell the Wife the marriage was over. The Husband’s evidence on this point was given convincingly. It is consistent with the Wife's evidence that the Husband wanted her out of the marital home at that time. Moreover, the Husband's account is consistent with a number of other facts. His account is consistent with a couple who have fought continually, it seems, since their arrival in Australia. It is consistent with the events that occurred on that day in front of friends and family. Moreover, however, it is consistent with the actions and evidence of the Wife who says that the Husband wanted her out of the marital home. It is also consistent with the fact that she never returned to Australia and elected to go to the US.
The Wife's failure to return to Australia bears close examination. In the hearing before me, she spoke about the options available to her to leave Australia for a short period and then to return promptly. In particular, she referenced consideration being given to her going to Country H or New Zealand for a short period of time. Ultimately, however, when she left for India on 14 September 2019, she did not return. The Wife says in her affidavit that she 'had to visit her brother and sister-in-law in the US in the month of November 2019 as they were going to have a baby and when the respondent was about to leave for Australia then Covid 19 outbreak happened and she was stuck in the US till November 2020'. There are a number of issues with this explanation of why the Wife did not return. First, other evidence given by the Wife was that she was only going to leave Australia for a short period and then return. She left Australia on 14 September 2019. She travelled to the United States at some time in late 2019. There was a period of at least six weeks when she could have returned to Australia but did not do so. Second, the Covid outbreak took hold around the globe in March 2020. Severe restrictions came into force in Australia in March 2020. The Covid situation therefore does not provide an explanation for the Wife's failure to return to Australia between late 2019 and March 2020. In the circumstances, I do not accept the Wife's explanation that she could not return to Australia for the reasons advanced in her affidavit.
In my view, the real reason why the Wife elected not to return to Australia was revealed during my questioning of her during the hearing. I asked the Wife about what happened when she arrived in the United States in late 2019. In her answer, she referred again to the Husband, recounted what she says she experienced during the marriage including alleged violence before saying 'so that's the reason I couldn't return'. In my view, this is a critical admission. The Wife had accepted, by late 2019, that she could not return to the Husband
The Wife says, among other things, that it is clear that the relationship subsisted after 14 September 2019 because the Husband continued to support her application for a visa to go to New Zealand. The Wife produced an email dated 6 October 2019 which shows the Husband to be supporting the Wife in an application for her visa to travel to New Zealand. The Husband was questioned as to why he supported the Wife's application for a visa to New Zealand after 14 September 2019. His evidence on this matter was not convincing. While it tends to suggest that perhaps the relationship was on foot at that time, it is at the end of the day, only one piece of evidence pointing to that conclusion. Much of the evidence points the other way.
There is also evidence before the Court, which is largely not in dispute, that the parties attempted to resolve their differences after 14 September 2019. It is difficult to know what to make of that evidence. The following observations can be made however. First, while there were attempts at reconciliation, it seems none were successful. Second, any attempt at reconciliation did not result in the Husband and Wife residing together again. Third, the fact that reconciliation was attempted may be taken to suggest that the marriage had broken down and separation had taken place.
There are, of course, other matters that suggest separation occurred on or shortly after 14 September 2019. The parties were physically separated. The Husband ceased financially supporting the Wife. The Wife ceased undertaking household and domestic chores. The parties ceased engaging in sexual relations. In the overall scheme of things, while I give these factors some weight, I give them less weight in this case than in other cases. They were not in existence when the parties were married but living apart in the period mid-2018 to early 2019.
In my view, separation most likely occurred on 14 September 2019 when the Husband told the Wife that the marriage was over. If I am wrong about that, however, separation effectively occurred in late 2019 when the Wife elected not to return to Australia, elected to visit the United States and came to the realisation that she could not return to the Husband.
The Husband's application for divorce was filed in this Court on 3 May 2021. Given separation occurred at the latest in late 2019, I am satisfied that the parties were separated for a continuous period of not less than 12 months immediately preceding the date upon which the divorce application was filed. I am also satisfied on the evidence that there is no reasonable likelihood of the parties resuming their relationship.
DISPOSITION
I will grant the divorce order sought by the Husband. It will become final in one month in accordance with section 55 of the Act.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 5 April 2022
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