Karo & Darvish
[2025] FedCFamC1A 8
•3 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Karo & Darvish [2025] FedCFamC1A 8
Appeal from: Darvish & Karo [2024] FedCFamC2F 1020
Darvish & Karo (No 2) [2024] FedCFamC2F 1041
Darvish & Karo (No 3) [2024] FedCFamC2F 1046
Darvish & Karo (No 4) [2024] FedCFamC2F 1058
Appeal number: NAA 202 of 2024 File number: SYC 9035 of 2023 Judgment of: MCCLELLAND DCJ Date of judgment: 3 February 2025 Catchwords: FAMILY LAW – APPEAL – Appeal from divorce order – – Where the appellant pleads three grounds of appeal with numerous sub-grounds – Where the appellant argues Australia is a clearly inappropriate forum – Whether the primary judge erred by failing to find that the Australian proceedings were vexatious – Adequacy of reasons – Bias –Failure to consider material in the appellant’s affidavit – Where the appellant disputes the primary judge’s finding that he engaged in controlling behaviour – No error of fact or law established – Appeal dismissed – No order as to costs. Legislation: Evidence Act 1995 (Cth) ss 174, 175
Family Law Act 1975 (Cth) Pt VI, ss 43, 48, 68B
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26(2)(ii), 36
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 8.15, 13.53
Cases cited: Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141; [2021] QCA 198
Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Darley (No 5) [2024] FedCFamC1A 241
Darvish & Karo [2024] FedCFamC2F 1020
Darvish & Karo (No 3) [2024] FedCFamC2F 1046
Darvish & Karo (No 4) [2024] FedCFamC2F 1058
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fabrizi v Grasso (Jnr) as the Legal Personal Representative of Mr Grasso (Deceased) (No 2) [2022] WASCA 27
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (No 2) [2023] WASCA 108
Henry v Henry (1996) 185 CLR 571; [1996] HCA 51
HT v The Queen (2019) 269 CLR 403; [2019] HCA 40
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49
Krupin & Krupin (No 2) [2024] FedCFamC1A 146
Maclean & Greenwood (2022) FLC 94-117; [2022] FedCFamC1A 200
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
SDCV v Director-General of Security (2022) 277 CLR 241; [2022] HCA 32
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs: 82 Date of hearing: 10 December 2024 Place: Sydney The Appellant: Litigant in person (via audio link) Counsel for the Respondent: Ms Hayward Solicitor for the Respondent: I & J Law ORDERS
NAA 202 of 2024
SYC 9035 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KARO
Appellant
AND: MS DARVISH
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
3 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The appeal 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Karo & Darvish has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
On 29 November 2023, the respondent wife, Ms Darvish (“the respondent”), filed an application for divorce from the appellant husband, Mr Karo (“the appellant”), whom she married in Country B in 2008 and separated from in April 2022.
In his response to the divorce application filed on 7 February 2024, the appellant did not challenge the fact that the parties had lived separately and apart since April 2022 but claimed that Australia was an inconvenient jurisdiction to consider the issue of divorce because an order for divorce would not be recognised in Country B. He also claimed that there was a “minute possibility” of the parties reconciling. That “minute possibility” was not, however, seriously advanced by the appellant in proceedings that are the subject of this appeal.
On its face, in circumstances where the period of separation was acknowledged and the appellant did not assert “reasonable likelihood” of reconciliation, one would have thought that the application for divorce was uncontroversial and readily satisfied the requirements of s 48 of the Family Law Act 1975 (Cth) (“the Act”), which provides that in the absence of the court being satisfied of a “reasonable likelihood of cohabitation being resumed”, a divorce order shall be made, if, and only if, the court is satisfied that the parties relationship has “broken down irretrievably”. That question is to be determined by the court’s satisfaction 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”.
Regrettably, that has not been the case. As a result of the conduct of the appellant, the respondent has experienced delay and considerable expense in meeting several unreasonable applications by the appellant who, despite having re-partnered in Country B, has sought to thwart the respondent’s bona fide application for divorce, preventing her from moving on with her life.
The appellant’s conduct was of great concern to the primary judge who dismissed an application filed by the appellant for an adjournment of the proceedings and relieved the respondent of an obligation to comply with a Notice to Produce, which the primary judge found to be vexatious. In addition to making an order for divorce, the primary judge restrained the appellant from further proceeding with legal action he had commenced in Country B subsequent to the respondent initiating proceedings in Australia. The primary judge also restrained the appellant from taking steps to enforce any orders he had obtained in the Courts in Country B, one of which, according to the appellant, required the respondent to surrender “custody” of the parties’ daughter to the appellant within five days of “her being notified” (Transcript 26 July 2024, p.28 lines 12–14).
The appellant has appealed against several aspects of those orders, including the substantive order for divorce. For reasons which follow, I have dismissed the appeal.
BACKGROUND
The appellant was born in 1980 in Country B and is currently 44 years old.
The respondent was born in 1987 in Country J and is currently 37 years old.
The parties married in Country B in 2008 under a Sharia marriage contract.
In 2016, the parties’ daughter was born. She is currently eight years old.
In April 2022, the parties separated following a domestic violence episode. The appellant moved to Country B, leaving the respondent and child in Australia.
In June 2022, a parenting plan was signed by the parties, remaining in place until February 2023. That plan provided, amongst other matters, that the child live with the respondent, that she have primary parental responsibility and that she facilitate and encourage video calls between the appellant and the child no less than once a week.
The respondent filed an application for divorce on 29 November 2023 seeking, first, to vary the parenting arrangements and, second, for the appellant to pay child support. It is alleged that on that day, the appellant was detained and interrogated in Country B for entering the maternal grandfather’s house.
In December 2023, the appellant commenced multiple proceedings in the Court in Country B. Those applications are set out below:
·On 4 December 2023 the appellant filed a “divorce lawsuit” from the respondent and a separate application for visitation rights for the parties’ child; and
·On 18 December 2023, the appellant commenced proceedings for custody arrangements of the child.
In December 2023, the appellant also remarried in Country B to Ms K. I pause to note that during the appeal hearing, the appellant submitted that he has only ever been married to the respondent. However, having read the respondent’s affidavit filed 28 May 2024 and, in particular, having regard to Annexure “A”, being a translated marriage certificate of the appellant and Ms K, I am satisfied that the appellant was clearly misleading the Court and that he had in fact married Ms K.
On 4 December 2023, the appellant commenced two proceedings for divorce and visitation rights in Country B. Shortly thereafter, the appellant made complaints to a child protection service in relation to the welfare of the child.
On 7 February 2024, the appellant filed his response to the respondent’s divorce application commenced under Part VI of the Act. His response challenged this Court’s jurisdiction and sought a stay for the respondent’s alleged failure to comply with a Notice to Produce.
It is alleged that the last video contact between the child and the appellant occurred in April 2024.
On 18 July 2024, the appellant filed an Application in a Proceeding seeking that the hearing date of 26 July 2025 be adjourned or vacated and for the respondent to produce certain documents. On 23 July 2024, the primary judge made orders standing the Application in a Proceeding filed 18 July 2024 over to 26 July 2024, such that the divorce application and the Application in a Proceeding could be determined together.
On 26 July 2024, the parties appeared before the primary judge. On that day, his Honour delivered his reasons for judgment ex tempore and made orders in relation to the following matters:
(1)Dispensing with the need for compliance with the Notice to Produce;
(2)Dismissing the Application in a Proceeding filed 18 July 2024 and refusing the adjournment application;
(3)Determining the jurisdictional challenge to the divorce; and
(4)Determining the divorce application.
THE APPELLANT’S NOTICE OF APPEAL AND SUMMARY OF ARGUMENT
The appellant filed his Notice of Appeal on 2 August 2024, seeking to appeal the various orders made by the primary judge on 26 July 2024, to which I have earlier referred. That document can, however, be ignored in circumstances where the appellant filed an Amended Summary of Argument on 11 November 2024, in which he has essentially rewritten his grounds of appeal. Despite the appellant not seeking leave to amend his grounds of appeal out of time, counsel for the respondent agreed to meet the grounds of appeal as set out in the appellant’s amended Summary of Argument.
Ground 1
This Ground contends that the primary judge failed to afford procedural fairness to the appellant, “leading to a miscarriage of justice”. The appellant has outlined the primary judge’s “[s]pecific failures”, as follows:
(a) Not accommodating the appellant’s difficulties in participating fairly.
(b) Proceeding without ensuring the appellant’s preparedness adequately.
(c) Denying the appellant the opportunity to address the respondent’s submissions adequately.
(d) Exhibiting conduct suggesting prejudgment.
(e)Making adverse findings without evidence and without giving the appellant a chance to respond[.]
(Appellant’s Amended Summary of Argument filed 11 November 2024, p.2)
This Ground must be considered in the context where, by orders made on 31 May 2024, this matter was set down for hearing “to be heard by video and or audio link” and where the parties agreed that subsequent to the filing of affidavits, the matter could be dealt with on the basis of submissions.
It is also to be further noted that an appeal cannot be brought against the decision of the primary judge to dismiss the appellant’s late application for the proceedings to be adjourned (s 26(2)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”)). Accordingly, I will ignore those aspects of the appellant’s Amended Summary of Argument.
Sub-ground (d) deals with bias and accordingly, it should be considered first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117] (Kirby and Crennan JJ)). In respect to that sub-ground (d), it is to be observed that the appellant has made no effort to distinguish whether he is complaining about apprehended bias as opposed to actual bias. As noted by the Full Court in Darley (No 5) [2024] FedCFamC1A 241 at [39]–[41]:
To establish actual bias, the applicant must show the primary judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]) …
The relevant test to be applied to determine apprehended bias is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), where the plurality of the High Court of Australia (“the High Court”) said:
… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
(Footnotes omitted)
The application of the apprehension of bias principle involves a two-step analysis. First, the identification of what is said might lead a decision maker to decide a case other than on its legal and factual merits, and second, the articulation of a logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner at [8]). Per Ebner, once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
In considering this sub-ground it is to be further noted, firstly, that nowhere in any of the material filed has the appellant contended that the primary judge was invincibility biased against him in accordance with the principles adumbrated in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.
Secondly, in respect to the issue of apprehended bias, nowhere in his grounds of appeal or accompanying Amended Summary of Argument does the appellant identify either the first step in the required analysis to establish apprehended bias, nor the logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]).
In any event, the appellant waived his opportunity to apply for the primary judge’s disqualification. As was observed by the majority in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76]:
… If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection.
(Footnote omitted)
For these reasons, sub-ground (d) is without merit.
In respect to sub-ground (a), it is to be observed that, in his response to the application for divorce, the appellant indicated that he had been living in Country B since May 2023 and that he was unable to afford the travel and accommodation “where court proceedings would impose unnecessary and significant financial hardship” (Response to Divorce filed 7 February 2024, p.2). That hardship was substantially alleviated by the Court granting the indulgence to the appellant of permitting him to appear by way of video link. The fact that he elected to press numerous unmeritorious grounds in opposition to the respondent’s application for divorce in the absence of legal advice was as a result of his own decision. The fact that he had difficulty in articulating a reasoned and reasonable basis for his opposition was despite – rather than because of – the best efforts of the primary judge who was, in my view, exemplary in the patience that he showed towards the appellant and the numerous opportunities that he provided for the appellant to make such submissions as he wished. Accordingly, this sub-ground is without merit.
In respect to sub-ground (b), as earlier noted, by orders made on 31 May 2024, this matter was set down for hearing on 26 July 2024 – a timespan that provided a reasonable opportunity for the appellant to properly prepare his case in compliance with the timetable for the filing and serving of relevant affidavits and case outlines. As noted by the Full Court in Krupin & Krupin(No 2) [2024] FedCFamC1A 146 at [82]:
Procedural fairness requires each party to be given an adequate opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550 at 582). Procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]).
The appellant was given every opportunity by the primary judge to thoroughly present his case. As such, this sub-ground is without merit.
In respect to sub-ground (c), the appellant complains that he was provided with the respondent’s Case Outline Document on the morning of the hearing, rather than by 4.00 pm on the day prior to the hearing in accordance with trial directions. The complaint is made by the appellant despite having provided no Case Outline Document. The transcript of the proceedings before the primary judge records counsel for the respondent seeking to rely upon her Case Outline Document (Transcript 26 July 2024, p.19 lines 29–31). Having been notified of that intention, the primary judge, appropriately, inquired of the appellant as to whether he had seen the Case Outline Document. In response to the appellant’s advice that he had only seen the document on the morning of the hearing, the primary judge required counsel for the respondent to present oral submissions rather than to rely upon the written Case Outline Document. In other words, the appellant was in exactly the same position as the respondent insofar as they both presented their arguments by way of oral submissions rather than relying upon any written document. Accordingly, this sub-ground is without merit.
In respect to sub-ground (e), the appellant unhelpfully merges complaints about procedural fairness with his assertion that the primary judge made findings without an evidentiary basis. At paragraph 7 of his Amended Summary of Argument, the appellant sets out the relevant findings that are contemplated as falling within this sub-ground as being: “delay of procedures and vexatiousness of a Notice to Produce, juristic advantage, forensic advantage, vexatiousness of foreign proceedings, and ‘controlling behaviour’” (Footnotes omitted).
In respect to the asserted error identified as “delay of procedures and vexatiousness of a Notice to Produce”, the appellant cites [3] of the judgment of the primary judge dispensing with the need for the respondent to comply with the appellant’s Notice to Produce dated 24 June 2024 (Darvish & Karo [2024] FedCFamC2F 1020). His Honour’s ruling as to why he relieved the respondent of the obligation to comply with the Notice to Produce is summarised at [3] of that decision, as follows:
The Court raised with the husband, why the Court should not dispense with the need for compliance with the notice to produce under r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The husband sought to identify reasons why the documents he was asking for might be relevant, referable to contentions as to the veracity of the wife’s evidence. None of the matters in these seven paragraphs identify any relevant evidence to the issues before the Court in respect of either inappropriate forum, jurisdiction or divorce. The Court is not satisfied that the notice to produce seeks relevant documents and is not satisfied there is a legitimate forensic purpose for the categories of documents identified. Further, requiring production will almost inevitably delay these proceedings. The Court has taken into account the principles in s 43, s 68B and s 69ZN of the Family Law Act 1975 (Cth) and the overarching purpose in s 95 of the Act. The Court finds that the notice to produce is vexatious and further that compliance should be dispensed with in the interests of the administration of justice. In the circumstances, the Court dispenses with the need for compliance with the Notice to Produce.
Those findings were reasonably open to the primary judge in the context of the limited issues that he was required to determine being, as noted by the primary judge, the issues of inappropriate forum, jurisdiction and whether the respondent had established grounds for divorce in accordance with s 48 of the Act, to which I have earlier referred.
Moreover, it is well established that, generally, an appellate court will not interfere in respect to an interlocutory decision concerning questions of practice and procedure unless the appellant can establish an error of principle and the appellant demonstrates that the order will work a substantial injustice: Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141 at [13]. I am satisfied that the primary judge applied proper principle and, moreover, in circumstances where the documentation that the appellant required the respondent to produce had no relevance to the issues before the Court. The appellant has failed to demonstrate that he has suffered any injustice as a result of the primary judge, appropriately, in my view, relieving the respondent of her obligation to comply with the terms of the Notice to Produce. Accordingly, this sub-ground is also without merit.
In respect to “juristic advantage” and “forensic advantage”, the appellant refers to [11] of the primary judge’s reasons for judgment explaining why he made orders, pursuant to s 68B of the Act restraining the appellant from taking any further steps in any of the three proceedings commenced in the Court in Country B or seeking to enforce any orders obtained in those proceedings (Darvish & Karo (No 3) [2024] FedCFamC2F 1046 (“Darvish & Karo (No 3)”). The appellant also refers to [7] of the primary judge’s reasons for judgment explaining why he made the divorce order (Darvish & Karo (No 4) [2024] FedCFamC2F 1058 (“Darvish & Karo (No 4)”). That paragraph has a similar effect to [11] of his Honour’s decision pertaining to the jurisdiction challenge, Darvish & Karo (No 3), which is as follows:
11.In the course of the husband’s submissions, he identified a very alarming proposition that he has pursued, while these proceedings were on foot, proceedings in the [Court of Region M, Country B] and has obtained custody orders in relation to the child who has been living in Australia for the last four years. No disclosure by the husband of the seeking of such custody orders appears in his affidavits. The Court is left with the clear impression that the husband has been seeking to delay these proceedings while he seeks to obtain some juristic advantage in respect of the proceedings that he has commenced in the [Court of Region M, Country B].
The relevant submission referred to by the primary judge was the appellant’s contention that “I have full custody of my child. I have full court orders of the custody of my child, and these were made on 15 July for the custody and 10 June for visitation” (Transcript 26 July 2024, p.17 lines 39–41). There was also a further concerning statement that the appellant made advising the Court that the orders required the respondent “to surrender our daughter to me within five days of her being notified” (Transcript 26 July 2024, p.28 lines 13–14). The primary judge accepted that the respondent had not received notice of any hearing before the Court in Country B despite the appellant’s submission that those orders had been made.
Counsel for the respondent acknowledges that the s 68B restraints imposed upon the appellant were made as a result of an oral application made during the course of the proceedings before the primary judge on 26 July 2024. However, the application needed to be immediately considered on the day in the context of what the primary judge, justifiably, in my view, characterised as an “alarming proposition” that he had obtained parenting orders in Country B granting him custody of the parties child in circumstances where the respondent had not been notified of any hearing in which the making of those orders was contemplated and further, where it was apparent that such orders, if made, would have been made in the absence of updated evidence concerning the best interest considerations of the child and in which the current views of the child could not have been communicated to the Country B Court.
Permitting the appellant to obtain and/or enforce orders made by the Country B Court in those circumstances would have been contrary to the welfare and rights of the child (s 43(1)(c) of the Act). The significance of that provision, together with other relevant sections of the Act dealing with the best interests of the child, were specifically referred to by the primary judge at [24] of the jurisdiction decision where his Honour recorded that in imposing the restraints, he had “taken into account the principles under s 43 of the Act and the principles in s 60B and s 60CA of the Act, in terms of the best interest of the child, and s 65AA of the Act, and the principles in s 69Z of the Act, and the overarching purpose in s 95 of the Act” (Darvish & Karo (No 4) at [4]).
While it is the case that ordinarily the appellant would have been entitled to have received notice of the intended application for orders pursuant to s 68B of the Act, it is significant that the absence of a written application for orders and service of those orders occurred in circumstances where the situation of urgency resulted from the appellant’s own conduct in failing to notify the respondent of the steps he had taken in obtaining what he described as custody and visitation orders.
It is important to appreciate that:
… the rules of procedural fairness do not have immutably fixed content; the content of procedural fairness may vary according to the circumstances of the particular case. Procedural fairness is essentially practical; it is not an abstract concept. The concern of the law is the avoidance of practical injustice.[1]
[1] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (No 2) [2023] WASCA 108 at [203], citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] (“Ex parte Lam”); HT v The Queen (2019) 269 CLR 403 at [18] (“HT”); Fabrizi v Grasso (Jnr) as the Legal Personal Representative of Mr Grasso (Deceased) (No 2) [2022] WASCA 27 at [92].
In other words, the concept of procedural fairness is not fixed, as succinctly stated by Gageler J (as he then was) in SDCV v Director-General of Security (2022) 277 CLR 241 at [174]:
… “[t]he rules of procedural fairness do not have immutably fixed content ... ‘[F]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice’”[2]. Procedural fairness necessarily has a variable content; it can be “provided by different means in different contexts and may well be provided by different means in a single context”[3]. It “is defined by practical judgments about its content and application”[4].
[2] Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38 (“Pompano”) at [156], quoting Ex parte Lam at [37]. See also [177] and [188] and HT at [46] and [64].
[3] Pompano at [177] and [195]. See also Dietrich v The Queen (1992) 177 CLR 292 at 364; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at [54].
[4] Pompano at [68].
In the situation of urgency that I have described, it was, in my view, entirely appropriate for the primary judge to take immediate steps to restrain the appellant from further pursuing and/or enforcing the orders which he stated he had obtained in the Country B Courts. While the restraints were referred to as final orders they are, in fact, capable of amendment at a future time in circumstances where there are ongoing proceedings before the Federal Circuit and Family Court of Australia (Division 2) relating to issues regarding the parenting arrangements of the parties’ child.
In his Amended Summary of Argument, the appellant refers to [7] of the primary judge’s decision that determines the respondent’s divorce application. His Honour explains in that paragraph that the appellant’s opposition to the application for a divorce order “appears to have been designed to try and delay these proceedings so that the husband could obtain some forensic advantage in these proceedings he has commenced in [Country B]”. In the context of the lack of merit of the appellant’s case – who admitted the period of separation and failed to present admissible evidence to substantiate his assertion that an Australian divorce order would not be recognised in Country B – and taking into account the appellant’s conduct in prosecuting proceedings in Country B and seeking to adjourn the respondent’s bona fide application for a divorce order, that finding was reasonably open to the primary judge.
Insofar as this Ground overlaps with asserted denial of procedural fairness, it is to be noted that the primary judge gave the appellant numerous opportunities to present such submissions as he wished in respect to the jurisdictional issue and whether he should be restrained from further prosecuting proceedings in Country B.[5] He also gave the appellant several opportunities to present his argument in opposition to the making of the divorce orders.[6] Accordingly, there was no failure of the primary judge to afford the appellant procedural fairness in respect to these matters.
[5] Transcript 26 July 2024, pp.13, 23–24 and 27–28.
[6] Transcript 26 July 2024, pp.29 and 34.
For completeness on the issue of procedural fairness, in respect to the s 68B restraints imposed upon the appellant, I note that not every departure from the rules of natural justice entitles the aggrieved party to a new trial (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). Had I found a failure on the part of the primary judge to afford procedural fairness to the appellant on this issue, I would have nevertheless exercised my discretion, pursuant to s 36 of the FCFCOA Act, to refuse to make an order setting aside the restraints imposed upon the appellant in circumstances where I am satisfied that any re-hearing of the issue would result in the same outcome.
Sub-ground (e) of Ground 1 contends that the primary judge made the adverse finding that the proceedings commenced by the appellant in Country B were vexatious and that there was no evidentiary basis for such a finding being established. Contrary to that submission, the evidentiary basis is specifically referred to at [25] of Darvish & Karo (No 3) where the primary judge noted the undisputed fact that the proceedings commenced by the appellant in Country B covered “the same subject matter” as the proceedings in the Australian Court, which proceedings had been commenced by the respondent prior to the appellant commencing proceedings in Country B. In those circumstances, the finding that the Country B proceedings were vexatious was reasonably open to the primary judge (see Henry v Henry (1996) 185 CLR 571 at 590–591).
Insofar as the appellant has conflated issues of procedural fairness with erroneous factual findings, I have earlier set out why I have concluded that the primary judge afforded the appellant procedural fairness including by offering him, on numerous occasions, the opportunity to address and, if he wished, to further address the Court in respect to the matters that required adjudication.
The appellant’s contention that the primary judge found he had engaged in “controlling behaviour” is based on a false premise. No such finding was made. Indeed, at [6] of Darvish & Karo (No 4), the primary judge specifically stated that it was not necessary for the Court to determine whether the appellant had engaged in controlling behaviour for the purpose of determining the respondent’s application for divorce orders.
Accordingly, for these reasons, sub-ground (e) is without merit.
Having found that none of the sub-grounds of appeal are of merit, Ground 1 fails.
Ground 2
This Ground asserts errors of law. In particular, the appellant contends that the primary judge erred by:
(a) Neglecting to apply the fundamentals of the Evidence Act 1995 (Cth).
(b) Failing to apply appropriate legal tests in arriving at findings.
(c) Incorrectly issuing an unenforceable injunction by way of a stay on foreign court proceedings where the appellant resides.
(d) Failing to provide adequate reasons for the judgment.
At paragraph 8 of his Amended Summary of Argument, the appellant contends that, while he did not present any expert evidence in support of his contention that a divorce order made by an Australian Court would not be recognised in Country B, the primary judge should have nonetheless made that finding on the basis of documentary evidence referred to or attached to several affidavits that he had filed in the proceedings.
In respect to this Ground, I note that when invited to clarify the basis of his assertions, the appellant advised the primary judge: “I’ve made a point in one of my affidavits that there have been a challenge to this in the Supreme Court of [Country B]. I’ve made this in one of my affidavits and I’m sorry, I don’t have that point in front of me” (Transcript 26 July 2024, p.26 line 46 to p.27 line 2).
The difficulty for the appellant on this issue is that r 8.15(3)(a)–(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that a document that is to be used in conjunction with an affidavit must be both identified in the affidavit and “filed as an annexure or an exhibit to the affidavit”.
Further, r 8.15(3)(e) of the Rules provides that a document to be used in conjunction with an affidavit “must not be accepted as evidence in the proceeding unless and until it is separately tendered in evidence at the hearing of the application and accepted into evidence by the court”. No such tender was made by the appellant and, accordingly, this Ground of Appeal necessarily falls away.
Moreover, the relevant document that appears to be relied upon by the appellant to support his jurisdictional argument appears to be Annexure “1” of his affidavit filed on 6 March 2024 which purports to be a list of authorities, together with weblinks which the appellant contends are “Judicial rulings [from Country B] supporting the thesis of the affidavit”. The heading to the annexure states that the information is from the website of “[Research Centre] [Country B] University [..]”.
It is clear that the reference to weblinks does not satisfy the requirements of s 175 of the Evidence Act 1995 (Cth) (“the Evidence Act”), which provides that:
175 Evidence of law reports of foreign countries
(1) Evidence of the unwritten or common law of a foreign country may be adduced by producing a book containing reports of judgments of courts of the country if the book is or would be used in the courts of the country to inform the courts about the unwritten or common law of the country.
(2) Evidence of the interpretation of a statute of a foreign country may be adduced by producing a book containing reports of judgments of courts of the country if the book is or would be used in the courts of the country to inform the courts about the interpretation of the statute.
The second affidavit of the appellant that appears to deal with the jurisdictional issue was filed on 17 May 2024. That affidavit contains no annexures and therefore, necessarily, does not provide the basis for the tender of a “document” pursuant to either s 174 or s 175 of the Evidence Act.
The second aspect of sub-ground (a) is referred to in paragraph 9 of the appellant’s Amended Summary of Argument. In that paragraph, he challenges the authenticity of translations of the parties’ marriage contract and the parties’ marriage certificate. This Ground of Appeal is disingenuous. In the very first initialled paragraph of his response to the respondent’s application for divorce, the appellant specifically states that “Both Parties, [Country B] Citizens, were married in [Country B] on [...] 2008 under a Sharia Marriage Contract administered by the [Court of Region M, Country B]”. Further, at paragraph 12 of that same document, the appellant identified the date and place of marriage as “[the same date] in [City G, Country B]”. Being an agreed position in the proceedings, it was not an issue that required evidence or the primary judge’s adjudication. Without determining its merit, I will therefore not further entertain this sub-ground.
In paragraphs 10–13 of his Amended Summary of Argument, the appellant challenges the reception into evidence of an affidavit of a legal practitioner from Country B, relied upon by the respondent to refute the appellant’s argument that any Australian divorce order would not be recognised in Country B. In circumstances where the appellant failed to provide admissible evidence to support his contention, it was unnecessary for the respondent to present any evidence regarding the issue as the persuasive onus rested on the appellant. Issues relating to the admissibility or otherwise of the evidence of the lawyer from Country B relied upon by the respondent therefore became irrelevant to the outcome of the proceedings.
In any event, as noted by the primary judge at [5] of Darvish & Karo (No 3), even though the appellant repeatedly asserted that a divorce order made in Australia would not be recognised in Country B, the appellant advanced no argument as to why the powers of the Federal Circuit and Family Court of Australia (Division 2) pursuant to the provisions of “s 39 of the Act, which vests jurisdiction in a matrimonial cause as defined in s 4 of the Act, taken together with s 132 of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth), does not vest jurisdiction in respect of the divorce application that was filed in this Court”.
Accordingly, for these reasons, sub-ground (a) of Ground 2 is without merit.
In sub-ground (b) of Ground 2, the appellant contends, at paragraph 14 of his Amended Summary of Argument, that the points he made at paragraph 7 also constitutes an error of law. I have previously found the contentions of the appellant as set out in paragraph 7 of his Amended Summary of Argument to be without merit and accordingly, this sub-ground is also without merit.
Sub-ground (c) of Ground 2 is based on a false premise. The orders made by the primary judge pursuant to s 68B of the Act does not operate as a “stay on foreign court” but rather, operates against the appellant. Accordingly, this sub-ground is without merit.
In respect to sub-ground (d) of Ground 2, the appellant contends that the primary judge failed to provide adequate reasons. As noted by the Full Court in Maclean & Greenwood (2022) FLC 94-117 at [13]:
When considering the reasons for judgment, it is important to note that the primary judge gave an ex tempore judgment in this case. It has long been recognised that an “ex tempore judgment should not be picked over” (Maviglia v Maviglia [1999] NSWCA 188 at [1]), and that it is generally appropriate to “make assumptions in favour of an ex tempore judgment”: see Perdicari & Perdicari (2019) FLC 93-914 at [25]. The underlying principle is founded upon recognition of a number of important considerations: first, that ex tempore reasons are given when the evidence is fresh in the judge’s mind; secondly, recognising that the expression of oral reasons (particularly by a busy trial judge) will not be in a form nearly as refined or detailed as reasons in written form that have been carefully structured and revised; thirdly, that ex tempore judgments meet the interests of litigants in having a decision as soon as possible; and fourthly, noting that the purpose of reasons as a necessary element of the exercise of judicial power is to provide an adequate explanation of the basis of the decision to the litigants, not a jurisprudential essay or royal commission report.
The reasons of the primary judge in respect to each of the judgments explaining the orders, that are the subject of appeal in these proceedings, are adequate. This is particularly so in the context where despite meandering submissions made by the appellant, the issues to be adjudicated by the Court were, as noted by the primary judge, narrowly confined to the issues of whether the Federal Circuit and Family Court of Australia (Division 2) was an inappropriate forum and/or whether the Court lacked jurisdiction to make orders for divorce and, finally, in the context of determining the respondent’s application for divorce itself.
For reasons explained by the primary judge, the suggestion that the Federal Circuit and Family Court of Australia (Division 2) lacked jurisdiction to make a divorce order as sought by the respondent was wholly without merit. As a related issue, the primary judge noted that the appellant failed to present admissible evidence that justified a finding that Australia was an inconvenient jurisdiction to determine the respondent’s application for divorce. Finally, as noted by the primary judge in respect to the consideration of the divorce application, all that was required to be determined was whether, as noted by the primary judge “there has been an irretrievable breakdown of marriage by reason of there being separation of 12 months or more” (Darvish & Karo (No 4) at [1]).
The reasons for judgment of the primary judge in explaining his decision in respect to each of these issues are more than adequate and, in the circumstance of this case, he is to be commended for his expeditious consideration and determination of those issues.
Accordingly, in circumstances where I have found lack of merit in any of the sub-grounds, Ground 2 also fails.
Ground 3
This Ground of Appeal asserts errors of fact and, in particular, that the primary judge erred by finding, despite evidence to the contrary:
(a) Facts about International Private Law ([Country B]) regarding the recognition of foreign civil divorce decrees for religious marriages.
(b) The chronology of events, particularly that the respondent and the Court were unaware of overseas court proceedings.
For reasons which I have previously explained, there is no merit in sub-ground (a). There was no admissible evidence before the primary judge that enabled him to make a finding, as contended by the appellant, that an Australian divorce order would not be recognised in Country B.
Sub-ground (b) is based on a false premise. The evidence before the Court in the form of the appellant’s response to the divorce application is referenced:
An existing divorce lawsuit is underway with the [Court of Region M, Country B] filed by the Respondent (Annexure 1 - Confirmation of lawsuits filed in [Country B] by the Respondent relating to divorce, visitation and custody).
The commencement of those proceedings in Country B is recorded in the chronology set out in the reasons for judgment of the primary judge dealing with the issue of the respondent’s application for divorce (Darvish & Karo (No 4) at [1]).
What caused understandable concern on the part of the primary judge was the fact that, according to the appellant, he had obtained orders in a Country B Court for “custody” of the child who had been living in Australia for the last four years (Darvish & Karo (No 3) at [11]). That information was first communicated to the Court by the appellant in the proceedings on 26 July 2024, including where he stated:
I have already custody orders – a full custody order of my daughter. I have that. The applicant wife has to surrender our daughter to me within five days of her being notified
(Transcript 26 July 2024, p.28 lines 12–14)
As earlier explained, the receipt of that information, justified the primary judge taking steps to prevent the appellant from furthering the proceedings he had commenced in Country B or enforcing any orders made in those proceedings.
For these reasons, Ground 3 also fails.
DISPOSITION
In circumstances where I have found each ground of appeal to be without merit, the appeal must be dismissed.
In circumstances where the appellant has been wholly unsuccessful, I would have ordinarily made an order for the appellant to pay the costs of the respondent. Unfortunately, however, the respondent has failed to comply with the requirements of r 13.53 of the Rules which requires a party who intends to seek an order for costs at the conclusion of the hearing of an appeal to, no later than seven days before the first day of the sitting, file “a schedule of the costs to be sought at the scale prescribed by these Rules”.
In circumstances where I was not provided with reasons as to why that obligation had not been complied with, I do not dispense with the requirements of that rule and will therefore make no order as to costs.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 3 February 2025
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