Kaur and Narula
[2007] FMCAfam 657
•31 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAUR & NARULA | [2007] FMCAfam 657 |
| FAMILY LAW – Divorce – domicile of choice – permanent residency – indefinite intention to remain. |
| Domicile Act 1982 (Cth), ss.6, 7, and 10 Family Law Act 1975 (Cth), ss.39(3)(b), 48(1), 48(2), 48(3) Hindu Marriage Act 1955 (Ind) |
| In the Marriage of Ferrier-Watson and McElrath (2000) 26 Fam LR 169 Miller v Teale (1954) 92 CLR 406 |
| Applicant: | JASPREET KAUR |
| Respondent: | PRAMEET SINGH NARULA |
| File Number: | MLC 2480 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 22 June 2007 |
| Date of Last Submission: | 22 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Leslie |
| Solicitors for the Applicant: | Pearsons Schetzer & Associates |
| Respondent: | No appearance (but written submissions filed) |
ORDERS
The Court:
is satisfied as to service.
finds the marriage proved.
finds the Applicant Wife is domiciled in Australia.
finds the ground proved.
grants a divorce order to take effect in one month’s time.
declares that it is satisfied that there are no children of the marriage to whom the Act applies.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2480 of 2007
| JASPREET KAUR |
Applicant
And
| PRAMEET SINGH NARULA |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for Divorce filed by the Applicant Wife, Jaspreet Kaur (“Applicant”) on 6 March 2007.
The Applicant was born in India, as was the Respondent Husband, Prameet Singh Narula (“Respondent”). The Applicant was born in 1980 and is currently 26 years old and the Respondent was born in 1976 and is currently 31 years of age.
The Applicant and Respondent were married in New Dehli, India on 13 October 2002 as per Sikh rites and the marriage was registered under the Hindu Marriage Act 1955 (Ind) (“HM Act”).
A copy of the marriage certificate is on the Court file and the Court accepts the marriage as proven. For the purposes of these proceedings the fact of the marriage is, in any event, not in dispute. There are no children of the marriage.
A Response to the Application for Divorce was filed by the Respondent on 24 April 2007, however the Respondent states in his affidavit of 17 May 2007:[1]
“his filing of “Response To Divorce”, “Affidavit” and any other document in the Federal Magistrates Court of Australia should not be considered by any means his submission to the jurisdiction of the Federal Magistrates Court of Australia”.
Applicant’s submissions
Grounds for divorce
[1] Paras. 8 & 12; Written Arguments filed by Respondent of 5 June 2007, at “Argument #9 (vii)”.
Marriage has broken down irretrievably
An application for divorce will only be granted on the ground that the marriage has broken down irretrievably.[2] To establish this ground the Court must be 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]
[2] Family Law Act 1975 (Cth), s.48(1) (“FL Act”).
[3] FL Act, s.48(2).
Separation in excess of twelve months
Although the Respondent makes allegations regarding the different dates put forward by the Applicant regarding the date of separation[4] in particular in relation to the dates specified on the prior divorce applications made in India, both parties claim that the parties separated in early 2004.[5] The Court therefore finds that the parties separated some time in the first half of 2004. In these circumstances, the parties have been separated for a period of over 12 months immediately preceding the filing of the application on 6 March 2007.
[4] Detailed Response for the Divorce filed 24 April 2007, para. 3; Respondent’s affidavit of 17 May 2007, para.16; Written Arguments filed by Respondent on 5 June 2007, at “Argument #5 (i)” and “Argument #6 (i)”.
[5] The Applicant maintains the date of separation as 22 March 2004, while the Respondent doesn’t give any clear indication of the particular date and only attacks the differences in the dates given by the Applicant in different documentation.
Resume cohabitation
A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.[6]
[6] FL Act, s.48(3).
The evidence of both parties supports the conclusion that the parties have not and will not resume cohabitation.
Proof of service
The Husband has filed a Response in this Court. By doing so he has acknowledged proper service of the Application.
Jurisdiction of the Federal Magistrates Court
Section 39 of the FL Act provides:
(3) Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order is filed in a court, either party to the marriage:
(a) is an Australian citizen;
(b) is domiciled in Australia; or
(c) is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.
The Respondent submits that this Court has no jurisdiction to hear the divorce application because the Applicant is an Indian Citizen holding an Indian Passport.[7]
[7] Response filed 24 April 2007, para.6.2; Detailed Response for the Divorce filed 24 April 2007, paras. 1 & 8.A; Affidavit of Respondent filed 17 May 2007, paras. 3 & 13; Written Arguments filed by Respondent on 5 June 2007, at “Argument #1”, at “Argument #2”.
The Respondent goes on to argue that as the Applicant had ‘submitted herself’ to the jurisdiction of the Indian Courts and accordingly this Court has no jurisdiction.[8]
[8] Affidavit of Respondent filed 17 May 2007, paras. 6-9.
At the time of the hearing, the Applicant was not an Australian Citizen (although the Court was told that the application process for citizenship is being undertaken by the Applicant), and the Applicant had not been in Australia for one year immediately preceding the date of the Application which in this case was 6 March 2007.
Domicile and permanent residency
Essentially, the question which arises in this matter is whether permanent residency confers a status of domicile to satisfy s.39(3)(b) of the FL Act. The Applicant submitted that having been granted permanent residence on 9 June 2006, this should confer on her the status of domicile. The Applicant attests to having been granted permanent residency on the above date. This is confirmed by a copy of her passport, which also indicates that the Applicant is entitled to remain in Australia indefinitely. Furthermore, the Applicant has given direct evidence, on which she was not cross-examined, of her intention to live permanently in Australia, which she regards as her home.[9]
[9] Applicant’s 14 May 2007 Affidavit, para. 13 and Annexure JK1; see also para. 14.
Domicile definition
There are three types of domicile: domicile of origin, domicile of choice and domicile of dependence.[10] In this case it is only the former two which are relevant.
[10] Encyclopaedic Australian Legal Dictionary, definition of “domicile”.
Domicile of origin
Domicile of origin is the true, fixed, and permanent home that attaches at birth to an individual by force of law. A domicile of origin does not revert back to a person upon loss of their domicile of choice or dependence: s.7 Domicile Act 1982 (Cth).[11] In this case, the domicile of origin of the Applicant is India. This domicile will continue until it can be shown that the Applicant has acquired a domicile of choice.
[11] Encyclopaedic Australian Legal Dictionary, definition of “domicile of origin”.
Domicile of choice
Section 10 of the Domicile Act, 1982 (Cth) states that:
The intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his home indefinitely in that country.
Domicile of choice has been discussed in the following terms:
A true, fixed, and permanent home acquired by a person who intends to surrender his or her old domicile and establish a new domicile, and who is physically and lawfully present in that place with the intention of remaining there indefinitely: s.10 Domicile Act 1982 (Cth). In determining domicile of choice the length of time of the physical stay in a place is immaterial: Miller v Teale (1954) 92 CLR 406. A person’s domicile of choice continues until he or she acquires a new domicile: s.6 Domicile Act 1982 (Cth).[12]
[12] Encyclopaedic Australian Legal Dictionary, definition of “domicile of choice”.
The standard of proof to determine whether someone has acquired a domicile of choice, and in particular has the requisite intention as espoused in s.10 of the Domicile Act, is that of the balance of probabilities.[13]
[13] P.E. Nygh and M. Davies, Conflict of Laws in Australia, 7th ed, Butterworths, 2002 at [13.21] (“Nygh”).
The two requirements to establish whether a person has acquired a domicile of choice are:
a)being lawfully present in a country; and
b)having the intention of remaining in that country indefinitely.[14]
[14] Nygh at [13.18].
Lawfully present
The Respondent makes claims in his affidavit and written submissions that the Applicant is not in Australia legally and has falsified her passport. There is no evidence before the Court which substantiates these claims. The evidence before the Court indicates that the Applicant has a valid permanent residency visa. The Court must assume that as the holder of a valid permanent residency visa, the Applicant is lawfully presently in Australia.
Indefinite intention to remain
Residence is not necessary to establish domicile of choice, but rather an intention to remain indefinitely in a country, irrespective of length of lawful presence.[15] In this case the Applicant has evinced an intention to remain in Australia by becoming a permanent resident. The issues of residence and intention to remain indefinitely have effectively coalesced in the Applicant’s permanent resident status.
[15] In the Marriage of Ferrier-Watson and McElrath (2000) 26 Fam LR 169 at 189-190 per Holden and Jerrard JJ; [2000] FamCA 219 at paras. 79-83 per Holden and Jerrard JJ (“Ferrier-Watson”).
The Court therefore finds that the Applicant is domiciled in Australia for the purposes of section 39(3)(b) of the FL Act.
Respondent’s objections
The Respondent says he does not submit to the jurisdiction of this Court, but, nevertheless has filed voluminous material in support of his response objecting to the Application being granted.
The Respondent argues that domicile requirements are not met by the Applicant. The Court has already found that the Applicant meets the domicile requirement for the purposes of section 39(3)(b) of the FL Act.
The Respondent argues that this Court has no jurisdiction because both he and the Applicant are citizens of India, married in that country, and “have never in their life visited Australia”.[16] This appears in a Response sworn to as to its accuracy by the Respondent on 18 April 2007. At that time the uncontroverted evidence is that the Applicant had been granted permanent resident status in Australia, on 9 June 2006, and had arrived in Australia on 9 July 2006.[17] The basis for the Respondent’s objection in this regard is factually incorrect. The Applicant has domicile in Australia. Save some other valid objection, this Court has jurisdiction to consider the Application.
[16] Response, para. 6.2.
[17] Applicant’s 14 May 2007 Affidavit, Annexure JK1.
The Respondent submits that he is not bound by any judgment of this Court, and that he and the Applicant can only be divorced by an Indian court under the HM Act. This Court has jurisdiction to consider the Application because the requirements of s 39(3) of the FL Act have been met by the Applicant.
The Respondent refers to various proceedings in the Indian courts in which the Applicant has sought to divorce the Respondent. Those proceedings have either been dismissed by consent, or, in the cases of an application based on the grounds of cruelty, dismissed. The Court notes that the last dismissal of a cruelty based application occurred after the Applicant had commenced permanent residence in Australia and did not appear to contest the application in the Indian court. It appears there are no current divorce proceedings in the Indian court involving these parties.[18] The Respondent also says that he has not been given the opportunity to save his marriage through marriage counselling or otherwise. Given:
a)the various divorce proceedings initiated but dismissed in India;
b)the Applicant’s move to, and permanent residency in, Australia;
c)that the Applicant has now applied for a divorce in Australia; and
d)the grounds for considering a divorce application under the FL Act,
this plea by the Respondent must fail as being entirely futile and irrelevant, both in fact and law.
Nor are there court proceedings in Australia, or India, concerning family law or family violence as those terms are understood for the purposes of the FL Act.
[18] Response, para. 6; Applicant’s 14 May 2007 Affidavit, para. 13.
Conclusion
In all the circumstances, the Applicant has established the grounds for the grant of the application for divorce, and an order will issue accordingly.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: J. Semler
Date: 31 August 2007
0
3
3