KESHARI and LUDHANI

[2018] FCWA 135

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: KESHARI and LUDHANI [2018] FCWA 135

CORAM: O'BRIEN J

HEARD: 1 MAY 2018

DELIVERED : 26 JULY 2018

FILE NO/S: PTW 6259 of 2017

BETWEEN: MR KESHARI

Applicant

AND

MS LUDHANI

Respondent

Catchwords:

DIVORCE - Application for rescission of divorce decree - Where husband contends that separation was "forced upon" him - Where husband alleges miscarriage of justice in proceedings unrelated to divorce application - Where application is misconceived and doomed to fail - Application summarily dismissed.

Legislation:

Family Law Act 1975 (Cth) s 48, s 49, s 53, s 55, s 58
Family Law Rules 2004 (Cth) r 10.12, r 10.14

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Case(s) referred to in decision(s):

Bigg v Suzi (1998) FLC 92-799

Byrne & Byrne (1965) 7 FLR 342

Clarke and Clarke (1986) FLC 91-778

Holland & Holland (1982) FLC 91-243

Hunter v Chief Constable of the West Midlands Police [1981] 3 All ER 727

Jago v District Court (NSW) (1989) 168 CLR 23

Lindon v Commonwealth (No 2) (1996) 70 ALJR 541

Rogers v R (1994) 181 CLR 251

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The matter for determination relates to the application of [Mr Keshari] (“the husband”) for rescission of a divorce order made by a registrar 25 January 2018. [Ms Ludhani] (“the wife”) seeks the summary dismissal of the application. The husband opposes the wife’s application for summary dismissal and seeks orders whereby his application for rescission would proceed to a trial.

Background

2The parties’ marriage was solemnised [in] July 2006, and registered under the [overseas legislation] [in] September 2008. It is common ground that the marriage was valid and recognised in Australia.

3The parties have one child, a son [S], who was born [in] 2008.

4On 2 October 2016, the wife moved out of the matrimonial home with S. It is common ground that the parties have not lived together since that date. On 4 October 2016, the wife obtained an interim violence restraining order (“VRO”) against the husband. Her application for a VRO proceeded to a final hearing in the [Town A Magistrates Court] on 27 June 2017, and a final order was made in the same terms as the interim order.

5The husband sought to appeal that decision. His appeal was heard [in] the District Court, and [later] dismissed by judgment.

6In the meantime, the wife filed her application for divorce on 9 October 2017. In that application, she asserted that the parties separated on 2 October 2016, that at the date of separation she regarded the marriage as over, and that there had been no resumption of cohabitation.

7The husband filed a response to that application on 22 January 2018. He set out a series of grounds upon which he sought that the divorce application be dismissed. None of those grounds suggested that the central factual contentions in the wife’s application were false. Rather, the husband made various assertions as follows:

1.that, in parenting proceedings, the wife had obtained orders on fraudulent grounds;

2.that he had requested copies of certain court documents and (by inference) they had not been supplied; and

3.he made various assertions regarding errors he would identify in the magistrate’s decision in the VRO proceedings, and procedural aspects of the District Court proceedings in respect of which he was awaiting judgment, including allegations that the wife had breached certain orders and procedural requirements.

8After the divorce order was granted, the husband filed an application seeking its rescission. In an affidavit filed on 29 January 2018, he identified the grounds upon which he asserted that there had been a miscarriage of justice by reason of fraud as follows:

1.“Applicant has given primary reasons for Application for divorce, Present Parental Orders Obtained on fraud grounds that dad is undergoing [mental health assessment] and the Respondent was not a part of the Hearing”;

2.he raised a complaint that documents requested by him from the Court had not been received within a specific timeframe;

3.he referred to the final VRO order, asserting accurately that he was awaiting judgment on his appeal against that order; and

4.importantly, for reasons which will appear, he said: “applicant must convince Family Court that there is separation for 1 year before filing for Divorce. Separation was without the Consent of the Respondent, because VRO was forced on Respondent, In spite of [a permanent injury] at [the husband’s employer]. Hence, considering the Fraud done in obtaining parental orders, error of law and District Court Pending Decision, I kindly request the Family Court to Order that the Proceeding be reheard.”

9The husband’s application for rescission of the divorce order was listed initially before me on 12 February 2018. On 6 February 2018, the Court received a letter from the wife seeking a different court date, as she had been summoned for jury duty in Town A that day. The husband opposed the wife’s request, and went further to write to the Town A Court seeking that the summons for jury duty be set aside.

10As there was no agreement, the matter remained listed before me on 12 February 2018. The husband participated in that hearing by telephone. I explained to him that the divorce order granted [in] January 2018 would not come into effect pending the hearing of his application, so as to reassure him lest he be concerned that there might be any prejudice to his case by virtue of delay. I ordered the wife to file and serve responding documents, and adjourned the proceedings to 4 April 2018.

11The husband was aggrieved by that decision and sought to challenge it, firstly by seeking to file an application for “rescission” of my orders, and then by seeking to appeal. Both sets of documents were rejected, and the hearing proceeded as scheduled. By that time, the wife had filed her responding documents. While she did not expressly seek orders for summary dismissal in her response, the content of her documents and the submissions made at the hearing on 4 April 2018 made it clear that she sought the dismissal of the husband’s application “on the papers”. The husband made it clear that he opposed that and sought that his application for rescission proceed to a trial at which both parties could be cross-examined.

12The respective positions of the parties having been made clear by that process, I listed the matter for a hearing on 1 May 2018, to determine whether the rescission application should be summarily dismissed or proceed to trial. Both parties participated in that hearing by telephone and made submissions.

13Prior to the hearing, the husband had filed written submissions asserting that they demonstrated that the wife did not “have any grounds to seek divorce”. The content of those submissions, however, related exclusively to what the husband would assert were errors of fact and law by the magistrate who determined the VRO application and the District Court judge who determined his appeal against that decision. He asserts further that there was a miscarriage of justice by reason of fraud in those proceedings.

14In her oral submissions at the hearing, the wife asserted that the date of separation of the parties had not been challenged, that more than 12 months had passed from the date of separation to the filing of her divorce application, and that appropriate parenting arrangements are in place. She accordingly submitted that the husband’s application for rescission was without merit.

15In his oral submissions, the husband asserted that the parenting orders made in the separate proceedings in this Court were obtained by fraud. He accepted that the parties had not lived under the same roof since 2 October 2016 but denied that there was in fact a separation, characterising it rather as a “forced removal from the house”. That position on his part was informed by his culture. He explained that in [his] culture parties to a marriage may only separate by agreement; as he did not agree, in his view, there was no separation. He said that proposition was the basis of his application. That said, he did not accept that if I found there was no legal requirement for consent to a separation, his application for rescission must fail.

Evidence

16The husband relied on the following affidavits:

(a)his affidavit filed 29 January 2018; and

(b)his affidavit filed 15 February 2018.

17The wife relied on her affidavit filed on 14 March 2018.

The law – divorce and rescission

18Section 48 of the Family Law Act1975 (Cth) (“the Act”) sets out the ground for divorce, and is in the following terms:

(1)An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.

(2)Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.

(3)A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

19Importantly, in the present context, s 49 of the Act is in the following terms:

(1)The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.

(2)The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

20Separation, in the sense used in the Act, occurs where one or both of the parties forms the intention to sever, or not to resume, the marital relationship and acts on that intention, or acts as if the relationship has been severed: Clarke and Clarke (1986) FLC 91-778 at p 75,666 and the authorities there cited.

21It is clear both from the authorities and from the express words of s 49 that, for the purposes of a divorce application, it is irrelevant whether the parties separated by mutual consent or as a result of the decision and actions of one party only.

22Section 58 of the Act is in the following terms:

If a divorce order has been made in proceedings but has not taken effect, the court by which the divorce order was made may, on the application of a party to the proceedings, or on the intervention of the Attorney‑General, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, rescind the divorce order and, if it thinks fit, order that the proceedings be re‑heard.

23It will be seen that even if a miscarriage of justice by reason of the circumstances referred to in s 58 is established, that does not of itself mean that an order for rescission of the divorce order must be made; rather, the establishment of a miscarriage of justice enlivens the Court’s discretion to make a rescission order and to make an order for rehearing if it thinks fit.

24To establish a miscarriage of justice, the husband must show that the divorce order was unjustly obtained. The expression is not limited to an examination of the procedure followed by the Court, but extends to any situation “which sufficiently indicates that the decree or order was obtained contrary to the justice of the case”: Holland & Holland (1982) FLC 91-243. Any asserted miscarriage of justice must self-evidently bear direct connection to the making of the order under challenge; a miscarriage of justice in proceedings unrelated to the order under challenge cannot ground the rescission of the relevant order.

25To establish fraud, the husband must establish a “conscious wrongdoing or some form of dishonesty”: Byrne & Byrne (1965) 7 FLR 342 at p 343. Again, the asserted fraud must be directly relevant to the making of the order under challenge; the establishment of a fraud unrelated to the making of the divorce order cannot ground the rescission of that order.

26To establish perjury, the husband must establish that the wife knowingly gave false evidence touching on a material issue. Again, the asserted perjury must be directly relevant to the making of the order under challenge. Even if it is established that the wife committed perjury in other proceedings (including in this Court) that cannot ground the rescission of the divorce order.

27To establish suppression of evidence, the husband must establish the wilful concealment of relevant information. If relevant information is not disclosed to the Court, but that failure was inadvertent, it will not amount to suppression of evidence but may still be considered under the rubric of “any other circumstance” leading to a miscarriage of justice. Again, the direct connection with the order under challenge referred to above must be established.

The law – summary dismissal and abuse of process

28Rule 10.12 of the Family Law Rules 2004 (Cth) (“the Rules”) is in the following terms:

10.12Application for summary orders

A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

(a)the court has no jurisdiction;

(b)the other party has no legal capacity to apply for the orders sought;

(c)it is frivolous, vexatious or an abuse of process; or

(d)there is no reasonable likelihood of success.

29Rule 10.14 provides (while expressly not limiting the powers of the Court) that on an application under Rule 10.12, the Court may dismiss any part of the case, decide an issue, or make a final order on any issue.

30The principles to be applied when considering an application for summary dismissal, as outlined in Lindon v Commonwealth(No 2) (1996) 70 ALJR 541, and referred to in Bigg v Suzi (1998) FLC 92-799, may be summarised as follows:

1.It is a serious matter to deprive a person of access to the Court for the determination at trial of their claim. Accordingly, the power to summarily dismiss an application is “rarely and sparingly provided”;

2.The party seeking summary dismissal must show that it is clear, on the face of the other party’s documents, that he or she “lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”;

3.A perception by the Court, at that preliminary stage, that the substantive application is unlikely to succeed, or that the case is weak, is not sufficient to justify summary dismissal;

4.If there is a serious legal question to be determined, it should ordinarily be determined at trial as the proof of facts may assist the Court to understand and apply the law that is invoked;

5.If the substantive claim is inadequately pleaded, but it appears that the claimant may have a reasonable cause of action which is not yet in proper form, the Court will ordinarily allow that party to reframe the pleading; and

6.The guiding principle is… doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

31It is beyond doubt that, whether or not an application for summary dismissal is brought, courts have the power to ensure that their processes are not abused. That power was described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1981] 3 All ER 727 at p 729 as:

…the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.

32 In Rogers v R (1994) 181 CLR 251 at 255, Mason CJ observed that:

The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object … The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories.

33In Jago v District Court (NSW) (1989) 168 CLR 23, Gaudron J made the following observation at 74:

The terms “frivolous”, “vexatious” and “oppressive”, when used in relation to civil proceedings, sometimes serve to signify that the proceedings are an abuse of process such that, in the interests of the administration of justice, they should attract the grant of a permanent stay. But the terms “vexatious” and “oppressive” may also import a consideration of the justice or fairness of the proceeding, those terms signifying, in appropriate context, proceedings which are “seriously and unfairly burdensome, prejudicial or damaging” or are “productive of serious and unjustified trouble and harassment” (citations omitted).

34Reference in the authorities to the granting of a permanent stay of proceedings, as distinguished from summary dismissal, does not alter the applicable principles, bearing in mind the authorities earlier cited in relation to the power to summarily dismiss and the express provisions of the Rules.

Consideration and conclusion

35It must first be observed that the husband does not dispute the proposition that the parties have not lived together since a date more than 12 months prior to the filing of the wife’s application for divorce. By her actions in leaving the home, and obtaining an interim VRO two days later, which she then pursued through to a contested final hearing, the wife clearly demonstrated, and conveyed to the husband, her intention to separate.

36While I do not doubt the sincerity of the husband’s culturally based belief that a separation of married persons occurs only when both parties agree to that separation, that belief is at odds with the clear position under Australian law. Even if I accept at its highest the husband’s evidence that at no stage has he agreed to a separation, that evidence is not capable of grounding an application for rescission of the divorce order.

37For the reasons set out earlier, even if the husband was able to establish that there had been a miscarriage of justice in either the parenting proceedings, the VRO proceedings, or the appeal in the District Court against the making of the final VRO, that could not ground an application for rescission of the divorce order. The tenor of the husband’s submissions suggests that he has not appreciated the need for the asserted miscarriage of justice to have occurred in circumstances directly connected to the making of the relevant order.

38The husband has not articulated any asserted miscarriage of justice in the divorce proceedings. He has not asserted the occurrence in that proceeding any fraud, perjury, suppression of evidence or other relevant circumstance capable of leading to a conclusion that a miscarriage of justice occurred.

39It follows that the husband’s application for a rescission of the divorce order, even if his evidence and submissions are taken at their highest, has no reasonable likelihood of success. More than that, the application is, with no disrespect to the husband or to his cultural beliefs, doomed to fail. To permit its continuation in those circumstances would be to permit an abuse of process.

40The husband’s application for rescission of the divorce order will be dismissed.

41By operation of s 55(3) of the Act, the divorce order will take effect at the expiration of a period of one month from today.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

LH
ASSOCIATE

26 JULY 2018