Herath & Mulat
[2022] FedCFamC1F 250
22FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Herath & Mulat [2022] FedCFamC1F 250
File number(s): SYC 7533 of 2019 Judgment of: CHRISTIE J Date of judgment: 20 April 2022 Catchwords: FAMILY LAW – INTERIM ORDERS – where the husband seeks an anti-suit injunction restraining the wife from continuing proceedings about property located in India– where the wife seeks an anti-suit injunction restraining the husband from continuing proceedings in India – where proceedings have commenced in Australia and India – where the husband must establish that he is domiciled in India in the Indian proceedings – where the wife is domiciled in Australia Legislation: Family Law Act 1975 (Cth),
Family Law Regulations 1984 (Cth),
Code of Civil Procedure 1908,
The Hindu Marriage Act (1955)
Cases cited: CSR Ltd v Cigna Insurance Australia (1997) 189 CLR 345,
Henry v Henry (1996) 185 CLR 571,
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93, Lan & Hao (No 2) [2017] FLC 93,
Narasimha Rao & Ors v Y. Venkata Lakshmi & Anr (1991) 3 SCC 451,
Oceanic Sun Line Special Shipping Company (1988) 165 CLR,
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 539.Division: Division 1 First Instance Number of paragraphs: 78 Date of hearing: 24 January 2022 and 22 March 2022 Place: Sydney Counsel for the Applicant: Mr Ford Solicitor for the Applicant: Nolan Lawyers Counsel for the Respondent: Ms Dart Solicitor for the Respondent: Diamond Conway Lawyers ORDERS
SYC 7533 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HERATH
Applicant
AND: MR MULAT
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
20 APRIL 2022
THE COURT ORDERS THAT:
1.Mr Mulat (“the husband”) is restrained from continuing proceedings in the Family Court of B City at Suburb F, India for property division.
2.The husband’s application for an anti-suit injunction restraining Ms Herath (“the wife”) from seeking property adjustment orders in this Court is dismissed.
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 Herath & Mulat has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These interim proceedings between Mr Mulat (“the husband”) and Ms Herath (“the wife”) concern concurrent proceeding in the Federal Circuit and Family Court of Australia Division 1 (“this Court” or “the Australian court”) and the Family Court of B City (“the Indian Court”).
The husband’s application sought a stay of the Australian proceedings. Counsel who appeared on behalf of the husband clarified at the hearing that the husband sought an order for bifurcation – such that this Court would determine property matters in respect of the Australian property and the Indian Court would hear matters relating to the property of the parties or either of them located in India.
The orders the husband sought were:
1.That these proceedings be stayed insofar as they concern assets of the parties physically located in India.
2.That the wife’s application for an anti-suit injunction with respect to the proceedings commenced by the husband in India be dismissed.
At the hearing the wife identified the relief she was seeking as being:
2.1 That the husband is restrained and an injunction hereby issues [sic] restraining the husband from continuing proceedings in India for property division, orders relating to the child of the relationship and in so far as those proceedings seek to restrain the wife from pursuing her application for settlement of property in the Federal Circuit and Family Court of Australia.
By the time the matter came to be heard by this Court the husband’s application to the Indian Court restraining the wife from proceeding in Australia had been dismissed and that decision upheld by the highest appellate court in India.
Each party sought a costs order but neither party made submissions on costs awaiting outcome of the application.
Accordingly I must decide:
(1)Should the wife be prevented from litigating in respect of the Indian property in this Court (bifurcation)?
(2)Should the husband be prevented from litigating in respect of the Indian property in India (anti-suit injunction)?
While the wife’s application sought an order restraining the husband from continuing proceedings relating to the parties’ child it was an agreed fact that no party was seeking orders and had in place a parenting plan to which each was adhering.
Both parties were represented at the hearing and I received considerable assistance from the counsel who appeared for each of the husband and the wife in the form of comprehensive written and oral submissions.
BACKGROUND
The husband and the wife (“the parties”) married in 2004 in India.
They moved to Australia in 2015. They are permanent residents.
There is one child of the relationship, X (born in 2010), in respect of whom they have an informal parenting arrangement in place. These proceedings do not relate to parenting matters.
The parties separated on 4 November 2018.
The wife commenced family law proceedings in the Federal Circuit Court of Australia on 8 November 2019. The proceedings were transferred to the Family Court of Australia on 20 March 2020. On 1 September 2021 the Family Court of Australia became the Federal Circuit and Family Court of Australia Division 1. The Chief Justice of this Court transferred the proceedings from this Court to the Federal Circuit and Family Court of Australia Division 2 (“Division 2”) on 30 March 2022. The Chief Judge of Division 2 transferred the proceedings from Division 2 to this Court on 30 March 2022.
The husband commenced family law proceedings in the Family Court of B City on 20 December 2019. With his application for divorce, he included an application for an anti-suit injunction restraining the wife from initiating divorce proceedings in Australia and continuing any property settlement proceedings in respect of assets located in Australia or India. The Family Court of B City declined to make the orders for an anti-suit injunction, which was later upheld by the High Court of Judicature at B City. The husband then applied for leave to appeal to the Supreme Court of India (his last right of appeal) who dismissed his application on 1 December 2021.
The husband contends the parties have interests in five pieces of real property in India:
(a)Property 1, B City, State G;
(b)Agricultural plot 1 in H Town;
(c)Agricultural plot 2 in H Town;
(d)Property 2 B City, India;
(e)Property 3 B City, India.
Apart from a dispute about the beneficial ownership of the agricultural plots the wife agrees. The parties also have shares, investments and insurance policies in India.
They do not possess any real property in Australia the husband having sold the parties’ property in Suburb J; the sale proceeds are in the trust account of Nolan Family Lawyer Pty Ltd.
The parties have superannuation entitlements in Australia.
EVIDENCE
The parties each filed and relied on an affidavit. There was a single expert report by Ms C (“the single expert”) and two supplementary reports where the single expert responded to questions by the parties.
When the matter was before this Court on 24 January 2022 the parties anticipated cross-examining the single expert but she became ill. When the matter resumed the parties had obviated the necessity for cross-examination by putting questions to the expert in writing.
INJUNCTIONS RESTRAINING OVERSEAS PROCEEDINGS: THE LAW
This Court has the power, in proceedings before it, to restrain a party to those proceedings from commencing or continuing proceedings in another court. That power arises either from the Court’s inherent power to prevent an abuse of its own processes or from the power to prevent proceedings which are vexatious or oppressive or both: CSR Ltd v Cigna Insurance Australia (1997) 189 CLR 345 at 392 to 393.
The matters to be taken into account in this case given the way in which the parties have framed their competing applications are as follows:
(a)Is Australia a “clearly inappropriate forum” to deal with the property located in India? If so then the Australian proceedings should be stayed (in so far as they deal with the Indian property), as the husband submits, and it is unnecessary to restrain the husband from proceeding in India.
(b)If the answer is no, then should the husband be restrained from continuing the Indian proceedings as the wife seeks?
In determining whether to grant the relief sought by either party there are a number of matters to properly take into account:
(a)Do both countries have jurisdiction?
(b)Will this court recognise orders made in the Family Court of B City?
(c)Will the Family Court of B City recognise orders of this court?
(d)Can one court or the other more effectively deal with all disputed matters?
(e)Which proceedings were filed first in time?
(f)What stage are both sets of proceedings at?
(g)What connection do each of the parties have to the different jurisdictions?
(h)Are there barriers to participation faced by one party or the other in the different courts (put another way can both parties participate on an equal footing)?
(i)Is there a juridical advantage to one party or the other in the available jurisdictions?
The mere existence of simultaneous proceedings in two different jurisdictions is not of itself vexatious or oppressive conduct: Henry v Henry (1996) 185 CLR 571 at 590 to 591.
The proper question is whether two sets of proceedings would be “productive of serious and unjustifiable trouble and harassment or seriously burdensome, prejudicial or damaging”: CSR Ltd v Cigna Insurance Australia (1997) 189 CLR 345 at 400 – 401 (see also Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at [247] and in Lan & Hao (No 2) [2017] FLC 93 at [42]).
BIFURCATION OF PROCEEDINGS
The husband argued that he should be permitted to pursue his relief in India (as regards the Indian property) and the wife should be permitted to pursue her relief in Australia (as regards property located in Australia).
CONSIDERATION
The proceedings for property adjustment on break down of marriage were properly instituted by the wife in this court. The wife has a prima facie right to have those proceedings heard and determined unless Australia is a “clearly inappropriate forum”: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 539; Oceanic Sun Line Special Shipping Company (1988) 165 CLR.
Do both countries have jurisdiction?
The parties were married in India. The Hindu Marriage Act (1955) (“the Hindu Marriage Act”) codifies the matrimonial law in respect of Hindus married in India.
Section 1 of the Hindu Marriage Act provides:
1 Short title and extent – (1) This Act may be called the Hindu Marriage Act, 1955.
(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies to Hindus domiciled in the territories to which this Act extends, who are outside the said territories.
The effect of the section is to provide that notwithstanding the parties’ physical absence from India if the Court considers that they are domiciled in India then the Hindu Marriage Act will apply.
There is no question that the parties’ domicile of origin is India. The question is whether either of them might be properly found to be domiciled in India now.
The husband contends that he is domiciled in India. The wife says she is domiciled in Australia.
The wife contends that the husband abandoned his domicile of origin when he moved to Australia and obtained permanent resident status.
It is uncontroversial that in November 2010 the parties obtained Australian Permanent Residency and travelled to Australia in February 2011. They remained living abroad (not India) and in 2014 the husband engaged an immigration specialist. At the same time the husband acquired a property in Suburb J, NSW.
It is equally uncontroversial that the husband and wife, together with their son, X commenced living in Australia in March/April 2015. The parties lived in Sydney and the husband was employed in Sydney.
On 25 November 2015 the husband wrote to the immigration specialist Mr D. In that email he said:
I have migrated to Australia in March 2015, and since then have settled down in Sydney.
As was discussed early last year, my PR has recently expired and was wanting to check with you if you would help me in getting a RRV [resident return visa] done for myself and my family.
When read with his email dated 28 July 2014 which included:
Though I have all the intentions of migrating and settling down in Australia, was considering of building a decent investment corpus in Australia prior to the relocation, so as to have better comfortable life while in Australia…
The husband appears to have obtained permanent residence, then become physically resident with the intention of remaining in Australia. It is difficult to understand the husband’s insistence given these emails that he did not make Australia his domicile of choice on migrating.
X attends school in Sydney. The parties have been employed in Australia.
After the parties’ separation the husband has continued to live in Sydney and exercise time with X in accordance with the parties’ agreement, six nights per fortnight. X is almost 12. There is no application before the Court for him to live outside Australia.
The husband pays child support to the wife in Australia accordance with an assessment.
The very relief the husband seeks (bifurcation of the proceedings) would appear to be an abandonment by the husband of the contention that the only matrimonial law applicable to he and the wife, as Hindus married under Hindu law is the Hindu Marriage Act.
While initially the wife in her submissions conceded that there may be jurisdiction in both India and Australia this concession pre-dated the single expert evidence.
On the basis of the agreed facts, there has to be a significant question mark about whether the husband will be found by an Indian court to be domiciled in India. Accordingly, I cannot be satisfied that the Family Court of B City will ultimately find that it has jurisdiction.
The single expert said:
In my opinion the statement in paragraph 10 [of the B City High Court judgment] that “the facts reveal that the parties are Indian citizens, domiciled in India” is merely an obiter dicta. A conclusive determination regarding the domicile of the parties (based on documents, evidence, etc.) has neither been made by the Family Court nor the High Court [in India].
There is no question that this Court has jurisdiction. The husband does not argue otherwise.
Will this Court recognise orders made in the Family Court of B City?
Section 110(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that:
The regulations may make provision for and in relation to:
(a)the registration in, and enforcement by, courts having jurisdiction under this Act of maintenance orders made by courts or authorities of reciprocating jurisdictions or of jurisdictions with restricted reciprocity.
Schedule 2 to the Family Law Regulations 1984 (Cth) listed India as a reciprocating jurisdiction. If the order made in the Family Court of B City is a “maintenance order” then this court will accept it for registration.
Will the Family Court of B City recognise orders of this court?
The evidence establishes that there will be an effort to recognise the judgment of a foreign court exercising jurisdiction (where concurrent jurisdiction exists). According to the evidence of the single expert that recognition may be imperfect but cannot be said to be non-existent.
The single expert report dealt with the procedure for execution of foreign judgments in India under s 44-A of the Code of Civil Procedure, 1908 (“the CPC”) noting that Australia was not a reciprocating jurisdiction and hence if enforcement were required it would be necessary for the wife (or the husband) to file a “fresh suit in the B City Family Court” and seek a declaration that the Australian judgment is valid, subsisting and binding on the parties.
The Australian judgment would need to satisfy the requirements of s 13 of the CPC. The case law discussed by the single expert makes plain that there is a mechanism for enforcement and a means by which a party could argue against enforcement.
If in the Australian proceedings this court were to find the husband habitually resident in Australia and permanently resident in Australia then according to the decision cited by the single expert, Narasimha Rao & Ors v Y. Venkata Lakshmi & Anr (1991) 3 SCC 451, that would create an exception to the rule that the judgment of the foreign court must be in accordance with the matrimonial law under which the parties were married. If one of the three exceptions in that case is established then the single expert concluded that the Australian judgment would be enforced in accordance with Order 21 of the CPC.
Can one court or the other more effectively deal with all disputed matters?
The husband sought divorce and ancillary relief in India. The evidence does not outline the nature of the ancillary relief but it is, inferentially, in respect of the parties’ property. The Australian proceedings seek property adjustment. There is no issue that the Australian Court can deal with the whole of the controversy as between the parties.
It is not plain precisely the relief which the husband seeks in the Indian proceedings or indeed after his concession concerning bifurcation, what relief the husband seeks in the Australian proceedings.
What is clear is that if the husband is not restrained from proceeding in India there will be two sets of proceedings. If I restrain the husband from proceeding in India there will only be one set of proceedings (unless enforcement is required).
The most significant issue in support of dismissing the wife’s application for a stay of the husband’s proceedings in India is the fact that the husband says he may need to seek relief against the wife’s mother in India.
In his affidavit the husband says:
as a result of discussion between Ms Herath and I …that at some future time we would settle in India, I purchased agricultural land in H Town, India (“the H Town property”) which is co-owned by a Mr E and Ms Herath’s mother. In discussions with Ms Herath, we agreed that the legal ownership of the H Town property would be with Ms Herath’s mother but to hold in trust for Ms Herath and I as to 50% of the H Town property. However, I paid 100% of the purchase price of the property to Mr E.
Further, the husband says a second property was purchased in H Town in 2012. In respect of that purchase the husband says he paid 50 per cent of the purchase price while the wife’s sister paid the other 50 per cent. The husband says that the title of the property is in the name of the wife’s mother but is held on trust for himself and the wife.
The wife disputes this account. Even if I could at this stage find that the facts and circumstances are as the husband asserts then the husband could assert his rights as against the wife’s mother in respect of the property located in India separately of any matrimonial proceedings (and in India). The matrimonial proceedings in Australia should not act as a bar. In addition the husband is not prevented from making his case that the property is held on trust as part of his evidence in proceedings before this Court.
Which proceedings were filed first in time?
The wife filed in Australia before the husband filed in India. There is not a significant time difference and this fact alone is not decisive.
What stage are both sets of proceedings at?
The husband filed an application for divorce (on the grounds of cruelty). He also sought injunctions restraining the wife from continuing her Australian proceedings.
It is not plain whether the husband has filed any application which deals explicitly or implicitly with division of the parties’ property located in India. It is ancillary relief to the application for divorce.
The single expert evidence makes plain that the proceedings in India will take four to five years. As a consequence of the pursuit of the appeals against the refusal of the Indian Courts to grant the anti-suit injunction they have not effectively commenced. Notwithstanding delays in our own court it might be anticipated that while the proceedings in Australia are also in their early stages they will be completed sooner.
What connection do each of the parties have to the different jurisdictions?
The parties own property and have assets in India. They were married in India according to Hindu law. The parties are Indian citizens. The parties have lived in Australia since 2015. The husband left India to work overseas in or about October 2004 and have not thereafter spent any significant period living in India.
The preponderance of assets are located in India (both as regards number and value).
The parties are resident in Australia (and have status as permanent residents), employed and their son attends school here.
Are there barriers to participation faced by one party or the other in the different courts (put another way can both parties participate on an equal footing)?
Both the husband and wife live in Australia. There is no suggestion that one will experience a greater disadvantage due to geography language etc.
It must be observed that for both parties to conduct proceedings in a country in which they do not reside will be onerous for each of them, particularly since they have significant caring responsibility for their child in Australia.
Is there a juridical advantage to one party or the other in the available jurisdictions?
The material filed by the husband in the Indian proceedings would appear on its face to suggest that the husband believes that he may have a juridical advantage in India. Otherwise, the evidence does not allow me to reach a conclusion about this issue.
Bifurcation
This approach creates practical difficulties since this Court if it is not to deal with all of the property of the parties should be aware how that property has been apportioned on a final basis in India (which the evidence suggests could take four to five years). The effect of allowing the Indian proceedings to go ahead is that this Court could not hear and determine the matter until such time as the outcome of the Indian proceedings was known.
This court has jurisdiction to make orders in personam against the husband: Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143).
To accept the husband’s submission and bifurcate the proceedings I would need to find that Australia is a clearly inappropriate forum in respect of the Indian property. I find that Australia is not a clearly inappropriate forum having regard to the matters set out above and in particular the parties both live in Australia, the Court has jurisdiction, the Court seized of jurisdiction may make orders which relate to the whole of the parties’ property and may make orders which bind each of the husband and wife in personam.
CONCLUSION
I accept that the mere existence of two sets of proceedings will not, without more, constitute vexatious and oppressive conduct. The Full Court in Lan & Hao (No 2) observed at paragraph 41:
…a very significant issue in a party seeking an anti-suit injunction is 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.
However, for there to be two sets of proceedings in circumstances where there remains a live issue about whether the Indian Court has jurisdiction would be significantly burdensome when no similar issue arises in Australia.
The bifurcation of proceedings creates problems as this Court cannot form a view as to what orders will be just and equitable in a case where another court is adjusting assets unless and until that court has finalised its decision making and we cannot know with any certainty when that might be.
This Court has personal jurisdiction in respect of the husband. The wife has chosen to seek an anti-suit injunction in circumstances where she knows that the majority of the parties’ assets are located in India and her ability to recover any sum due to be paid to her will be dependent upon the husband complying with the orders of the Australian courts and failing that upon her capacity to enforce the Australian orders in India. She has assumed that risk.
Finally, I should say that it is not lightly that the order restraining the husband from proceeding in India is made given the importance of comity. It is not the intention of this court to interfere with the proper administration of justice in another court. These orders are directed to the husband who lives in Australia. In this regard I note that the highest Court in India has upheld the decision not to grant to the husband an anti-suit injunction preventing the wife from continuing with her litigation.
I certify that the preceding seventy-eight numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 20 April 2022
0
6
0