Lehan & Ruffner
[2024] FedCFamC1F 865
•13 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lehan & Ruffner [2024] FedCFamC1F 865
File number: SYC 3718 of 2024 Judgment of: ALDRIDGE J Date of judgment: 13 December 2024 Catchwords: FAMILY LAW – DIVORCE – Declaration of validity – Where the parties are citizens of Pakistan – Where the parties married in Australia – Where the respondent asserted the parties had been divorced in Pakistan – Where the applicant asserted the Pakistan divorce was invalid and sought a divorce in Australia – Where the respondent produced a Divorce Registration Certificate and a Divorce Deed – Where there is evidence that Talaq was pronounced – Where there is no cogent reason not to give effect to the Pakistan divorce – Declaration of validity made. Legislation: Evidence Act 1995 (Cth) s 174
Family Law Act 1975 (Cth) s 104
Muslim Family Law Ordinance 1961 (Pakistan) ss 1, 5
Cases cited: Talwar & Sarai (2018) FLC 93-855; [2018] FamCAFC 152 Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 2 December 2024 Place: Sydney Solicitor for the Applicant: Women’s Legal Service NSW The Respondent: Litigant in person ORDERS
SYC 3718 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LEHAN
Applicant
AND: MR RUFFNER
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Court declares pursuant to s 113 of the Family Law Act 1975 (Cth), the decree for divorce made by the Union Committee in Suburb C, Region D, City E issued mid-2024 is recognised as valid in Australia in accordance with s 104(3)(d) of the Family Law Act 1975 (Cth).
2.The Initiating Applications filed 30 October 2024 and 1 November 2024 are otherwise dismissed.
3.The Divorce Application filed 16 May 2024 is dismissed.
4.The Applications in a Proceeding filed 16 May 2024 and 5 September 2024 are 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 Lehan & Ruffner has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
By an Initiating Application filed on 30 October 2024 (apparently duplicated on the Court portal on 1 November 2024), Ms Lehan (“the applicant”) seeks the following orders:
Should the Court find the purported divorce dated [mid] 2024, effective 9 August 2023, obtained by the Respondent Husband in Pakistan is one recognised under s 104(3)(d) of the Family Law Act 1975:
1.That the Court declare pursuant to section 113 of the Family Law Act 1975, that the decree for divorce made by the Union Committee [in Suburb C, Region D, City E] issued [mid] 2024, effective 9 August 2023 is recognised as valid in Australia pursuant to s 104(3)(d) of the Family Law Act 1975.
2.Save for these orders and declarations, all extant orders made in these proceedings are discharged.
3.All extant applications, including the Wife’s Application for Divorce filed 16 May 2024 and any Response (whether oral or in writing) by the Respondent Husband are otherwise dismissed.
Should the Court find the purported divorce dated [mid] 2024, effective 9 August 2023, obtained by the Respondent Husband in Pakistan is not one recognised under s 104(3)(d) of the Family Law Act 1975 or the Respondent Husband fails to file a Response to this Application:
4.That the requirement for the Applicant Wife to file a counselling certificate for married less than 2 years be dispensed with and the Applicant Wife has leave for the Application for Divorce to be heard without the need for the parties to attend marriage counselling.
5.That any application in Response by the Husband (whether oral or in writing) is dismissed.
6. Orders for divorce are made.
Mr Ruffner (“the respondent”) did not file a Response but did file an affidavit made on 5 September 2024 in which he asserted that the parties had been divorced in Pakistan with effect from 9 August 2023. He annexed a Divorce Deed and Divorce Registration Certificate in support of that contention.
Despite the apparent agreement between the parties, at the hearing the applicant pressed for a declaration that the parties had not been divorced in Pakistan and for a divorce order to be made. The applicant points to there being no evidence of the marriage being registered in Pakistan which is said to be a pre-requisite for a divorce. The applicant also relies on what she says are irregularities in the documents provided by the respondent.
A significant difficulty in determining this matter is the lack of expert evidence. Foreign law, in this case, the legal requirements for a divorce in Pakistan, is a matter of evidence obtained from persons qualified to give it. However, a copy of a statute may be received into evidence (s 174 Evidence Act 1995 (Cth)) noting the caution expressed in Talwar & Sarai (2018) FLC 93-855.
The applicant relied upon the Muslim Family Law Ordinance 1961 (Pakistan) (“the Ordinance”), as well as some reports of cases. I will not take these into account as they are unexplained by expert evidence or a textbook. For example, the status of the Court of the authorities relied upon within the court hierarchy in Pakistan is unknown as is the question of whether there is any competing or conflicting authority.
The applicant’s evidence referred to discussions her lawyer is said to have had with lawyers who have practised in Pakistan. Leaving aside issues of properly proving their evidence and expertise and compliance with the relevant rules, I did not find that their comments assisted on the central questions posed above.
The applicant’s Case Outline refers to discussions with officers of the Pakistan Consulate in Australia. The respondent agreed that they could be taken into account.
The parties, both citizens of Pakistan, were married in Australia in 2022 and separated on 30 December of that year.
On 4 May 2023, the respondent sent the applicant a text message containing the Urdu word for divorce “Talaq” three times.
On 16 May 2024, the applicant filed a divorce application in the Federal Circuit and Family Court of Australia (Division 2) which was personally served on 2 June 2024.
The respondent produced a Divorce Registration Certificate dated mid-2024 which records a divorce by Talaq effective on 9 August 2023 (Annexure “A” to the respondent’s affidavit filed 6 September 2024). It bears a stamp from “Secretary, Union Committee No. […] [Suburb C, Region D, City E]”. It is also attested by the Pakistan Consulate.
The applicant accepted it to be a legitimate document but, somewhat contradictorily, says she does not know how it was obtained and whether it was legally obtained. She says her passport number is not correct and an identification number is missing but does not challenge the other details recorded.
The officer at the Pakistan Consulate in Australia has confirmed that the stamps on the Divorce Registration Certificate are authentic and that the QR code on it links to the appropriate government website. He said it was a legitimate document.
The respondent also produced a Divorce Deed, duly stamped, and attested before a Justice of the Peace dated 7 May 2023 (Annexure “B” to the respondent’s affidavit filed 6 September 2024). It says:
I, [MR RUFFNER]… do hereby state as under:
01.That I was married with [MS LEHAN] Daughter of [Mr B], Muslim, Adult, Resident of [F Street, Suburb G], NSW, […], on […] 2022, against the dower amount of $4000, which has been paid.
02.That after Nikah, Rukhsati took place and marriage was duly consummated while from the said wedlock there is no issue born.
03.That, some differences have arose between the both parties and my friends tried their level best to reconcile the disputes between me and my wife, but their efforts went in vain just because the continuous stubbornness, maltreatment, misbehaviour, worst attitude and extraordinary unbearable acts of [Ms Lehan], she always used to quarrel with me and my family members, I several time inclined her but she didn’t bother upon me, on contrary she neither given any respect to me nor my family members, she is habitual to use filthy language with me and my family members.
04.That on dated 29-11-2022, 06-12-2023 and 17-12-2022, [Ms Lehan] abused me and my parents but I did not reply her due to women’s respect even she slapped me and tried to further maltreatment on above dates but I always left the home and remained cool, calm and silent because of my self-respect in society and to safe the honour of my parents.
05.That I decided myself that I can’t live with her more and I would have to divorce her to prevent further issues that’s why I divorced my wife [Ms Lehan] [in mid] 2023 and not only informed her through WhatsApp’s message but also mentioned that I will send you the proper Divorce Deed on my arrival to Pakistan but she shouted and threatened me that if you will divorce me, or inform my family or friends in Pakistan, I will not only indulge you in criminal cases here (in Australia) but will also book you in Pakistan. I replied her that whatsoever you can do here & there, you are independent now, and can do as per your wish, I have no fear and I will not change my decision of divorce.
06.That I contacted my Counsel, prepared this Divorce Deed [in mid] 2023 that is also being forwarded to [Ms Lehan] as well as her parent as advised by my Lawyer.
07.That it has been decided by me, that I can’t live with [Ms Lehan] in the prescribe limits of ALLAH Almighty, further it was very difficult for the parties to live with each other within the limits of Law and Injunction of Islam, in this regard, I hereby going to be pronounce Talaq (divorce) to [MS LEHAN], three (03) times in written as under;
a)I, [Mr Ruffner] S/o [Mr H] Divorce you [Ms Lehan] D/o [Mr B].
b)I, [Mr Ruffner] S/o [Mr H] Divorce you [Ms Lehan] D/o [Mr B].
c)I, [Mr Ruffner] S/o [Mr H] Divorce you [Ms Lehan] D/o [Mr B].
I have pronounced Divorce to [Ms Lehan] as prescribed U/S: 07 of Muslim Family Laws Ordinance 1961.
The applicant says she did not receive this document. The respondent says he sent it. The evidence does not permit resolution of that issue.
It is to be noted that the contents of the Deed appear to be consistent with the text message received by the applicant on 4 May 2023.
Section 5 of the Ordinance provides for registrations of marriages solemnised under Muslim Law with registers to be maintained by Union Councils. The register may be inspected by any person.
In a letter written to the applicant’s lawyers the respondent said that the marriage was not registered in Pakistan and he provided the Australian marriage certificate to the authorities there to prove the marriage.
The applicant raises concerns as to whether a divorce can be registered in Pakistan if the marriage is not registered there. The only evidence on that question is s 1(2) of the Ordinance which “applies to all Muslim citizens of Pakistan, wherever they may be”. Read literally, that extends to the parties.
Section 7 of the Ordinance provides for divorce by Talaq pronounced to the wife (saying I divorce you three times) or, if the parties follow the Shia school of thought, by doing so in the presence of at least two witnesses. It is not known whether the parties are Shia, but the text message complies with the first option and the Deed (which suggests there were two witnesses and a Justice of the Peace present) complies with the second.
A Talaq is not effective until 90 days after notice of it is given to the Chairman of the relevant Union Council which is to convene an Arbitration Council to attempt a reconciliation. There is no evidence of such an attempt other than the Divorce Registration Certificate itself. It records the day of Notice for Divorce as 9 May 2023 and 8 August 2023 as “Date of Failure of Conciliation”.
The applicant raises concerns as to the document being ‘illegally’ obtained for various reasons but that is mere speculation and there is no evidence at all to suggest so.
It is true that there are some inaccuracies in the document but they are minor.
Significantly, to my mind, the applicant received the text message pronouncing the Talaq at the time, if not precisely the same date, as recorded in the Divorce Registration Certificate and the Divorce Deed which confirms the genuineness of the steps taken.
The Ordinance, at least on its face, applied to the parties as Muslim citizens of Pakistan living overseas.
The Divorce Registration Certificate is accepted to be legitimate but, in any event, the evidence, such as it is, establishes it to be so. See also s 104(7) of the Family Law Act 1975 (Cth) (“the Act”) which provides the Court may treat as proved any facts established by the overseas jurisdiction. It can be inferred from that document that the issuing body, the Union Council charged with registering the divorce, was satisfied that it should do so. Presumably, therefore, the lack of registration of the marriage in Pakistan did not cause a problem.
There is clear evidence before me that the Talaq was pronounced.
There is no cogent reason, therefore, not to give effect to the Divorce Registration Certificate.
Section 104(3) of the Act provides that a divorce effected in accordance with the law of an overseas jurisdiction shall be recognised as valid in Australia where, as here, the respondent was a national of the overseas jurisdiction at the relevant date (s 104(3)(d)).
However, the decree shall not be recognised as valid if, under the common law rules of private international law, recognition of validity would be refused if a party had been denied natural justice or recognition would be manifestly contrary to public policy. The divorce process in Pakistan appears to be largely unilateral. It is asserted by the applicant that she should have been served with the Divorce Deed but was not. Nonetheless, she deposed that if she had been served she would have consented to the divorce.
It is difficult to see any material lack of procedural fairness.
In the circumstances I am persuaded that the parties were validly divorced in Pakistan with effect from 9 August 2023 and there will be a declaration to that effect. The application will otherwise be dismissed as will the Divorce Application which is now redundant.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 13 December 2024
0
0
3