Karo & Darvish

Case [2025] FedCFamC1A 8

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…

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Karo & Darvish [2025] FedCFamC1A 8
Case
[2025] FedCFamC1A 8
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant, Mr Karo, against several orders made by the primary judge in the Federal Circuit and Family Court of Australia. The orders pertained to a divorce application filed by the respondent, Ms Darvish. The dispute centred on the jurisdiction of the Australian court to hear the matter, the adequacy of reasons provided by the primary judge, the possibility of bias, and the failure to consider certain material in the appellant’s affidavit. Additionally, the appellant contested the primary judge's finding that he had engaged in controlling behaviour.

The court was required to determine whether the primary judge had erred in various respects, including whether Australia was an inappropriate forum for the divorce proceedings, if the Australian proceedings were vexatious, and whether there was bias or an inadequate consideration of the appellant's material. The court also needed to assess whether the appellant had engaged in controlling behaviour as found by the primary judge.

The court found that no error of fact or law had been established in the primary judge’s decision. The court held that Australia was not an inappropriate forum for the proceedings, given the established connections to the country, including the child’s residence and the parties’ previous marriage contract in Australia. The court also found that the primary judge had adequately considered the material presented and had not acted with bias. Furthermore, the primary judge’s finding that the appellant had engaged in controlling behaviour was supported by the evidence.

The appeal was dismissed, and no order as to costs was made. The reasoning and evidence provided by the primary judge were deemed sufficient, and the findings regarding the jurisdiction, the adequacy of reasons, the absence of bias, and the controlling behaviour were upheld.

Orders

Orders of the court

NAA 202 of 2024

SYC 9035 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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