Maider & Carrigan - [2008] FamCA 862

FAMILY COURT OF AUSTRALIA

MAIDER & CARRIGAN

[2008] FamCA 862

FAMILY LAW – DIVORCE – Divorce order – husband opposed wife’s application for divorce on ground divorce already granted overseas – whether divorce purported to have been granted overseas should be recognised as valid pursuant to s 104 of Family Law Act – whether divorce effected in accordance with Pakistani law – court satisfied marriage not dissolved – appropriate for court to hear divorce – necessary requirements for divorce proved – divorce to become final notwithstanding court not satisfied that proper arrangements have been made for children of marriage.

FAMILY LAW – COSTS – application for costs by wife – s 117 – husband did not appear and was wholly unsuccessful – husband to pay wife’s costs.

Family Law Act 1975 (Cth) ss 104 & 117

APPLICANT:

Ms Maider

RESPONDENT:

Mr Carrigan

FILE NUMBER:

ADF

1515

2006

DATE DELIVERED:

9 October 2008

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

9 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr B.W. McQuade

SOLICITOR FOR THE APPLICANT:

Adey Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Churches

SOLICITOR FOR THE RESPONDENT:

Martin Robinson Solicitors

Orders

The Court by order declared that it was satisfied that the children of the marriage who have not attained the age of 18 years are the children specified in the order and there are circumstances by reason of which the decree nisi should become absolute notwithstanding that the Court is not satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of the children D born on the … June 1997 and N born on the … December 2003.

The husband pay the wife’s costs of and incidental to the Application for Divorce and the Response thereto on the basis that such costs to be agreed and if there is no agreement within twenty-eight [28] days such costs to be as taxed.

IT IS NOTED that publication of this judgment under the pseudonym Carrigan & Maider is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1515 of 2006

MS MAIDER

Applicant

And

MR CARRIGAN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

This is the application of the wife for a divorce filed by the wife on 9 August 2007. This is opposed by the husband, as indicated in his response filed on 12 September 2007, on the ground that a divorce between the parties has already been granted, according to the law of Pakistan, on or about 14 February 2007. The wife denies that there has been any valid divorce in Pakistan.
The hearing before me to determine the divorce was specifically listed at a time that it was anticipated the husband would be present in Australia. At the hearing before me today the wife was present and represented by Mr McQuade of counsel. The husband was not present. He was represented by Mr Churches of counsel.
I heard the oral evidence of a Pakistani solicitor, Sheikh Sulaman, by telephone link to Pakistan, being a witness called on behalf of the wife. I also received in evidence the numerous affidavits of the wife referred to in the Case Outline. I also heard the submissions both counsel.
The evidence relied upon by the wife was the evidence of the expert in Pakistani law and the evidence of the wife. I have before me, therefore, the unchallenged evidence of the wife and Mr Sulaman. To the extent that Mr Sulaman was cross-examined I therefore prefer his evidence to the untested allegations in the affidavits filed by the husband.
The law to be applied is clearly set out in section 104 of the Family Law Act, which provides that the Court should recognise as valid, under certain circumstances, a divorce which is made in accordance with the law of an overseas jurisdiction.
The qualifications in section 104 require the parties to be either domiciled, resident or a national of that country. These are satisfied by the fact that the wife was a national of Pakistan at the time of the purported divorce by the husband in Pakistan, although, of course, she was neither domiciled nor resident there at the time.
The question remains whether the divorce was effected in accordance with the Pakistani law, as required by section 104(3). The husband says that a Divorce Deed was signed and registered with the local authority. The Deed which is provided to the Court (or the copy of the Deed provided to the Court) has two dates on it: one date is 26 October 2006, but it appears to be witnessed or notarised on 8 November 2006. The certificate from the local authority confirming the divorce is dated February 2007.
However, there is later correspondence from that local authority cancelling that certificate. This cancellation followed the correspondence from the wife's Pakistani solicitors.
The wife denies that she requested the divorce. The evidence calls into question whether she was ever aware of the Talaq pronounced in the Deed of October or November 2006, prior to her instigating the proceedings for the divorce in this country.
The evidence of Sheikh Sulaman, under cross-examination, maintained that there has not been a valid divorce according to Pakistani law. He was referred to the opinions of the Mufti and barrister obtained by the husband (being opinions annexed to an affidavit of the husband's solicitors). These alleged experts were not available to be cross‑examined and therefore the opinion of the expert who appeared on behalf of the wife is to be preferred.
He made clear distinction between the Islamic (or religious law) and the civil law of Pakistan. Under cross-examination he maintained his views about the lack of validity of any alleged Pakistani divorce according to the appropriate law of Pakistan, which he said was the civil family law and not the Islamic law. The wife, however, does not even admit the facts which go to establish an Islamic divorce in any event.
On the admissible evidence before me, therefore, the Court is satisfied that the marriage has not been dissolved in accordance with the law of Pakistan and it is therefore appropriate to proceed to hear the divorce.
Submissions on behalf of the husband included suggestions that the Court should take into account motives or past behaviour of the parties, and in particular the wife’s motive in bringing the divorce proceedings. If there were some question that there was some fraud or improper purpose behind the obtaining of the cancellation of the Pakistan certificate, then that may be relevant. However the wife was not cross-examined on any of the material in her affidavits. The question of motive for seeking a divorce, from one country or another, would not be relevant to determining whether in fact the divorce purportedly made in Pakistan was a divorce valid according to the law of Pakistan.
The motive for bringing the proceedings in Pakistan or in Australia are not relevant or persuasive in relation to proceedings for a divorce in this Court.
I therefore proceed to deal with the wife's application for a divorce. There was no issue taken as to the other facts contained in the divorce application.
In relation to the divorce, therefore, I am satisfied that the service has been proved, that this Court has jurisdiction to hear the divorce, the marriage has been found to be proved and the ground of irretrievable breakdown of the marriage has been proved.
There are children of the marriage. I have given consideration to whether the Court should make a declaration that the Court is satisfied that proper arrangements have been made for the children. However, considering the allegations made by each of the parties and, notwithstanding that there are in place interim orders, I am disposed to grant a certificate on the basis that the divorce should become final, notwithstanding that I am not satisfied that proper arrangements in the long-term have been made for the children. It is only on the basis that the Court has not yet had an opportunity to test the various allegations made by the parties that I do that. Nonetheless, the divorce will become final.
The wife applies for costs against the husband in relation to the divorce proceedings which requires consideration of the provisions of section 117. The Act quite clearly states that, subject to various sections and subsections in the Act, each party to proceedings under this Act shall bear his or her own costs. Subsection (2), however, provides that if the Court is of the opinion that there are circumstances that justify it in doing so the Court may, subject to the subsections and the rules, make such order as to costs as the Court considers just.
The Court is then directed to consider the matters set out in section 117(2A). I understand that the question of legal aid does not arise in this matter, and there are no offers in writing.
The main factors to be considered, therefore, are: (a) the financial circumstances of each of the parties; (c) the conduct of the parties to the proceedings, and, without limiting the generality, the conduct of the parties in relation to pleadings and other similar matters; (e) whether any party to the proceedings has been wholly unsuccessful in the proceedings.
I do not set aside completely (g), which is "such other matters as the Court considers relevant".
The matter before me today was specifically listed for determination today and arrangements were made by the wife to be present in case she was needed to be cross-examined. She was not. Arrangements were made for the expert to give his evidence by telephone link.
The husband did not appear. He has been wholly unsuccessful in the proceedings, to the extent that his response was not successful and the wife's divorce has been successful.
In view of the various factors to be taken into account in this matter, and in particular that the husband has employment in the transport industry, I consider the most significant factor to be taken into account is the fact that the husband has been wholly unsuccessful in the proceedings before the Court. I take into account the submission of Mr Churches that the husband may have thought, personally, that there was some basis upon which he could challenge the divorce. However, his reasoning behind that has brought about a situation where he has been wholly unsuccessful, and the wife has incurred costs.
I therefore am of the opinion that there are circumstances that justify the Court in making an order for costs.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate:

Date: 20 October 2008