MALIK & JOSHI
[2019] FCCA 1360
•23 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MALIK & JOSHI | [2019] FCCA 1360 |
| Catchwords: FAMILY LAW – Husband filed application for divorce in Australia – wife filed application for divorce and various other applications in India – both parties live in Australia – forum dispute. |
| Legislation: Code of Criminal Procedure 1973 (India) Dowry Prohibition Act 1961 (India) Evidence Act1995 ss.174, 175 Family Law Act 1975 (Cth), ss.55, 104(3) Hindu Marriage Act 1955 (India) Indian Penal Code 1860 (India) Protection of Women from Domestic Violence Act 2005 (India) |
| Cases cited: Dane & Kabrig [2013] FamCAFC 113 Henry v Henry (1996) 185 CLR 571 Jasmit & Jasmit [2014] FCCA 972 Neelam Kumar vs Dayarani [2010] 13 SCC 298 (Supreme Court Cases, India) Narasimha Rao and Ors vs Venkata Lakshmi and Ors [1991] 2 SCR 821 (Supreme Court Reports, Supreme Court of India) Sankil and Sankil [2007] FamCA 1381 Sankil and Sankil [2008] FamCA 822 Skinner & Alfonso-Skinner [2010] Fam CA 329 Talwar and Sarai [2018] FamCAFC 152 Voth v Manildra Flour Mills [1990] HCA 55 |
| Applicant: | MR MALIK |
| Respondent: | MS JOSHI |
| File Number: | MLC 9259 of 2018 |
| Judgment of: | Judge Harland |
| Hearing dates: | 5 December 2018 and 30 April 2019 |
| Date of Last Submission: | 14 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dunlop of Counsel on 5 December 2018 |
| The Applicant appearing in person |
| The Respondent appearing in person |
ORDERS
I direct that the divorce order be made to take effect on 24 June 2019, 1 month and 1 day after the decision is handed down.
IT IS NOTED that publication of this judgment under the pseudonym Malik & Joshi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9259 of 2018
| MR MALIK |
Applicant
And
| MS JOSHI |
Respondent
REASONS FOR JUDGMENT
The issue I am asked to determine is whether or not Australia is an inconvenient forum to determine the parties divorce.
The respondent wife has represented herself throughout the proceedings. The applicant husband has been represented at times and at others has represented himself. At the first return date, the parties agreed to have this matter determined in chambers after the receipt of written submissions.
The husband filed two affidavits on 1 October 2018 and 3 December 2018 and the wife filed an affidavit on 14 January 2019. The parties relied on the affidavits they filed and their written submissions.
The husband filed submissions on 14 March 2019 which were prepared by counsel. Via email and also at the end of his written submissions, he sought that the matter be listed in court. However, at that listing date on 30 April 2019 the husband was confused as to why it was listed as he, at that stage, was representing himself. At that appearance both parties confirmed that they did not wish to file further evidence or submissions.
The husband grew up in India. The husband moved to Australia in … 2009 and became an Australian citizen on … 2015. He rescinded his Indian citizenship.
The wife was born in Country A and also grew up in India. She has lived in Australia since February 2014 and is on a temporary graduate visa.
The parties were married in India on … 2016. The husband says he travelled to India on a visitor’s visa for the sole purpose of the wedding and remained there for about 20 days. The husband returned to Australia on … 2017. The parties separated on a final basis on 10 June 2017. The parties did not live together for much of their relationship with the wife living in New South Wales and the husband living in Victoria. In order to comply with legislative requirements the husband obtained a counselling certificate as the marriage was less than two years duration.
The husband filed an application for divorce with the court on 13 August 2018.
Both parties complain about having difficulties serving the other party with their court documents.
At the return date of the husband’s divorce application on 25 October 2018 the wife appeared in person and indicated that she wished to contest the divorce. Registrar Riddiford ordered her to file and serve a response. The wife objects to the divorce proceedings being determined in Australia on the basis that it is an inconvenient forum. She seeks that the divorce proceedings should be heard in India where she filed an application for the divorce in addition to a number of other applications. Registrar Riddiford made a notation that he was satisfied that he had jurisdiction to grant the divorce.
There is a dispute between the parties as to whether or not the husband was aware of the proceedings filed by the wife.
The husband has filed the following proceedings in India:
a)on 14 December 2017 she initiated a criminal complaint against the husband and others pursuant to the Indian Penal Code 1860 (India) and Dowry Prohibition Act 1961 (India);
b)on 21 December 2017 she filed a complaint under the Protection of Women from Domestic Violence Act 2005 (India);
c)she filed an appeal under the Protection of Women from Domestic Violence Act on 23 October 2018;
d)she filed a civil suit for divorce under the Hindu Marriage Act 1955 (India) on 3 July 2018;
e)she also says she filed a suit for maintenance under the Code of Criminal Procedure but does not identify the date of filing at paragraph 14 of her affidavit filed on 14 January 2019.
In his affidavit filed on 3 December 2018 the husband says he is not aware of the details of the proceedings the wife has filed in India but is aware that his parents, who live in India, have been served with documents. He said he was not aware of the Indian divorce application until he was provided a copy of that document in court on 25 October 2018. He says there are a number of inaccuracies in that document including reference to the parties being residents in India and him being an Indian citizen.
The wife says that the husband and his family demanded a lavish wedding and that her family incurred significant debts as a result. She also alleges family violence during the relationship and says that she made several attempts to contact the husband and his family to try and resolve these issues without success and so had to file proceedings in India.
In his affidavit filed 3 December 2018 the husband says that in mid May 2018 he was contacted by the Indian consulate in Australia and told that a warrant for his arrest had been issued in India as a result of the wife filing proceedings in India with respect to dowry and family violence.
The wife complains that the husband has been avoiding the Indian legal system and alleges that he went to India in … 2017 for his sister’s wedding but failed to attend the police station to discuss issues with authorities.
The wife’s affidavit was filed after the husband’s affidavit. In his written submissions the husband says there are a number of inaccuracies in that affidavit. The parties have not sought to cross-examine each other and it is not necessary to determine those issues in dispute. My task is to determine which forum should hear the divorce proceedings.
The leading cases with respect to forum non conveniens are Voth v Manildra Flour Mills [1990] HCA 55 and Henry v Henry (1996) 185 CLR 571. The High Court confirmed that the clearly inappropriate forum test applies to family law matters at (592 – 593):
Considerations relevant to a stay of proceedings between husband and wife with respect to their marital relationship
Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. [Note, however, the statement in the majority judgment in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558, to the effect that Australian courts should not concern themselves with “an assessment of the comparative procedural or other claims of the foreign forum”.] As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.[1]
[1] Henry v Henry (1996) 185 CLR 571, 592-3.
Murphy J in Skinner & Alfonso-Skinner [2010] Fam CA 329 summarised the non-exhaustive list of factors relevant to the Court in determining whether or not Australia is the inconvenient forum. At [69] Murphy J lists the relevant factors:
1. Whether each Court will recognise the other’s orders and decrees;
2. Which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy;
3. The order in which the proceedings were instituted;
4. The stage at which the proceedings have reached;
5. The costs that have been incurred by the parties;
6. The connection with the parties and their marriage with each of the jurisdictions;
7. The issues on which relief might depend in each of the jurisdictions; and
8. The resources of the parties and their understanding of language enabling the parties to participate in the respective proceedings on an equal footing.
Whether each Court will recognise the other’s orders and decrees
The wife said the family violence application was dismissed and indeed the wife has appealed that decision. The husband says that his father attended court in India and has told him that although the family violence proceedings were dismissed, the warrant for his arrest remains outstanding. The husband says he is afraid that if he travels to India he will be arrested and detained. He said he believes that for the Indian divorce to be determined, both parties need to attend in person. He says he has no intention to travel to India and is concerned that the Indian divorce application will be stayed indefinitely. This is speculative. He says he understands that if the divorce is granted in Australia it will be recognised in India but does not provide any supporting documentation with respect to that. This is doubtful given the decisions of Dane & Kabrig [2013] FamCAFC 113 and Jasmit & Jasmit [2014] FCCA 972. In any event, in order to make a finding about this issue I would need specific evidence before me.[2]
[2]Talwar and Sarai [2018] FamCAFC 152, 36 – 375.
The wife says that if the divorce is granted in Australia it will not be recognised by India and thus she will continue to be a married woman in India but the husband will not. She says this would cause her a lot of hardship in India and she may need to return to India to live and says that this force within the Australian proceedings is capable of being “productive of serious and unjustified trouble and harassment” and being “seriously and unfairly burdensome, prejudicial or damaging.”
The wife says that India will not recognise the Australian divorce as it does not recognise no fault divorces. She annexes the Indian decisions of Neelam Kumar vs Dayarani [2010] 13 SCC 298 and Narasimha Rao and Ors vs Venkata Lakshmi and Ors [1991] 2 SCR 821 to her submissions to support her contention that an Australian divorce will not be recognised in India as the Hindu Marriage Act does not recognise no fault divorce. I have read those decisions. Those decisions certainly indicate that no fault divorces are not recognised under the Hindu Marriage Act and also in particular, the Narasimha case involved ex parte orders made by a court in Michigan USA not being recognised by the Indian courts.
The wife also relied on two Australian decisions. The first is Sankil and Sankil [2007] FamCA 1381. She does not refer to Sankil and Sankil [2008] FamCA 822 which is a continuation of that case. In Sankil [2007] the Full Court heard the appeal, delivered reasons and adjourned the matter for further evidence and submissions. They then delivered their second set of reasons. That case was an appeal from a decision of a trial judge to permanently stay the husband’s application for divorce. The wife had filed various proceedings in India as is the case here. The Full Court upheld the appeal and granted a temporary stay of his application pending the outcome of the Indian proceedings with respect to the Indian courts having jurisdiction. This case does not advance matters for either party, as neither party has challenged the jurisdiction of either court. Rather, it is an issue as to which court should exercise its jurisdiction.
The other decision is Talwar and Sarai [2018] FamCAFC 152. In that case the wife also filed several proceedings in the courts in India including proceedings under the Dowry Prohibition Act 1961 and the Protection of Women from Domestic Violence Act 2005. The husband filed and obtained a divorce order in Australia. The wife did not file a response within the prescribed time limit but did file an application for review of the divorce order. There was no application for divorce in India on foot.
The Full Court discussed the relevant authorities and at [24] said the following:
24. Thus the key issues that the court must consider when a party seeks to stay or dismissal of proceedings on the basis that the court is a clearly inappropriate forum is whether the controversy between the parties is the same in both jurisdictions, whether or not complete relief is available in the local jurisdiction and whether there is nothing to be gained in overseas proceedings or whether, on the other hand, the overseas proceedings will give rise to additional or other remedies.
The Full Court then pointed out that they are not the only considerations and referred to other matters to be taken into account which the majority of the High Court in Henry v Henry (1996) 185 CLR 571 referred to which includes considering where both courts have jurisdiction if the orders of the other court will be recognised or not.
Sections 174 and 175 of the Evidence Act1995 addresses evidence of the foreign law. Those provisions are set out as follows:
S.174 - Evidence of foreign law
(1) Evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing—
(a) a book or pamphlet, containing the statute, proclamation, treaty or act of state, that purports to have been printed by the government or official printer of the country or by the authority of the government or administration of the country; or
(b) a book or other publication, containing the statute, proclamation, treaty or act of state, that appears to the court to be a reliable source of information; or
(c) a book or pamphlet that is or would be used in the courts of the country to inform the courts about, or prove, the statute, proclamation, treaty or act of state; or
(d) a copy of the statute, proclamation, treaty or act of state that is proved to be an examined copy.
(2) A reference in this section to a statute of a foreign country includes a reference to a regulation or by-law of the country.
S.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.
Whilst the wife referred to various pieces of Indian legislation in her affidavit, in her submissions she did not provide copies of the legislation or relevant provisions as permitted by s.174 of the Evidence Act 1995. She did provide copies of two Indian cases which I have referred to earlier in support of her proposition that the Indian courts will not recognise an Australian divorce. The source of the cases is unclear and I do not know if they have been produced by official law reports. The wife has not filed any expert evidence with respect to Indian law.
I draw particular attention to the discussions by the Full Court in Talwar and Sarai with respect to the admission of foreign evidence in which they observed, after discussing other cases, that in some cases it will be necessary to prove by expert evidence that the book containing case reports is from a book which could be used in the courts of that country. In this case I do not know what the source of the case reports are and whether or not they are official or unauthorised reports.
The Full Court in Talwar and Sarai makes a significant point with respect to the approach of the primary judge in this matter and records that foreign law is a question of fact which must be established by evidence. The Full Court found that the primary judge fell into error by relying on decisions of other judges to identify the relevant law in India. In the case before the Full Court, as is the case here, the court did not have the benefit of expert evidence but rather submissions from the parties. The primary judge then conducted her own research and evaluation of the Indian law.
The Full Court observed that greater caution is needed when dealing with evidence submitted under ss.174 and 175 of the Evidence Act1995 when that evidence has not been explained by an expert. The Full Court made the following observation:
42. In Optus Networks Pty Ltd v Gilsan (International) Ltd [2006] NSWCA 171 the Court of Appeal found that a foreign regulation was established by tendering a copy of it under s 174 of the Evidence Act 1995 (NSW). Its validity was then established by reference to a judgment of a superior court of that foreign jurisdiction. However, Hodgson JA (Beazley and McColl JJ agreeing) sounded the following note of caution:
87. In some cases, it could be necessary to prove by expert evidence that a book containing reports of judgments is a book which is or could be used in courts of the country concerned, as referred to in s.175 of the Evidence Act; but in the case of volumes of the Federal Reporter containing decisions of the United States Court of Appeals, this Court can take judicial notice that those books would be so used.
43. This caution is consistent with the comments of Gummow and Hayne JJ in Neilson, as quoted above. If caution is needed when dealing with expert evidence as to the content of foreign law, a fortiori, greater caution is required in dealing with evidence admitted under ss 174 and 175 when that evidence has not been explained by an expert.
44. We observe that these cases do not permit a judge to conduct his or her own research into the foreign law after the hearing has finished. At its highest, Re Tang supported the primary judge in that case conducting her own research to ascertain whether a text, which had been tendered, was a “reliable source of information” about Chinese law. We would not so readily support that approach. It is incompatible with the independent role of a judge to seek out the relevant facts of a case for him or herself, especially where such research is conducted after the close of the hearing and without the relevant material being drawn to the parties’ attention. Further, the exercise of the care noted in Neilson in relation to expert evidence surely precludes a judge, in effect, rendering themselves such an expert.
45. Finally, Re Tang is not directly relevant to the present case. There the trial judge conducted research to ascertain the accuracy of a text that had been admitted into evidence. Here there was no such text, only the research of the primary judge and that of a judge in other proceedings.
46. We doubt that such a course is necessary in any event. A party seeking to rely on a foreign law bears the onus of proving it. In the absence of expert evidence, the Court should proceed cautiously, but bearing in mind the following words of Ryan J in Husbands in V 722 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1059:
33. However, it is not necessary for a court or tribunal to resort to expert evidence of that kind in order to make a finding as to the effect of a relevant law of a foreign country. If, for example, the text of a presumably relevant statute of that country or an authoritative statement in a legal text book or other authority appears to suggest with sufficient precision the effect of the law in question, the court or tribunal is entitled, in the absence of contradictory expert evidence, to make a finding accordingly (Evidence Act (Cth) 1995 s 174(1)).
47. The primary judge did not have a textbook or other authority that settled the law in question with sufficient precision. Rather, the primary judge determined what appears to be an unsettled point of Indian law, relying only upon her own research and the research of another judge. Such a course is not authorised by authority or by the provisions of the Evidence Act and, in doing so, her Honour erred.
The husband also points to the wife’s failure to file any expert evidence as to the law in India. I do not have any evidence as to the progress of the various proceedings in India, most significantly the divorce proceedings. The husband also draws attention to the dismissal of the wife’s application with respect to family violence and maintenance by the Indian court, with that court noting that the husband is not a citizen of India and resides in Australia and the wife also resides in Australia. In that decision the court said that the wife should file a divorce and maintenance application in Australia. This appears at annexure M2 to the husband’s affidavit.
I accept the husband’s submissions with respect to the onus being on the wife to prove the Indian law given that she seeks to rely on it as noted by the Full Court in Talwar and Sarai. The husband submits that the facts in that case can be distinguished to this case as in Talwar and Sarai both parties lived in India and the wife had never lived in Australia. In that case too, the wife had also already obtained an anti-suit injunction from the Indian court.
I also accept the submissions of the husband that given the wife filed proceedings for various forms of ancillary relief at different times and prior to her application for divorce, the inference can be drawn that she will not be precluded from continuing those proceedings if divorce is granted in Australia. It is significant that she filed for divorce over seven months after the previous proceedings.
Which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy
The wife has the onus of establishing that Australia is the clearly inconvenient forum. She submits that complete relief is not available to her in Australia with respect to her proceedings under the Dowry Prohibition Act 1961 for returning wedding gifts and the proceedings under the Protection of Women from Domestic Violence Act 2005. She says whilst there is no bar to her continuing the proceedings in India if the Australian divorce is granted, she argues that complete relief isn’t available in Australia and having two sets of proceedings on foot would be oppressive in the sense referred to in Voth.
The difficulty with this submission is that the proceedings in Australia will not involve a further cost to the parties given that as the jurisdictional elements are satisfied, the divorce order can be made in Chambers.
There is no evidence that granting the husband’s divorce application will have any impact on the proceedings already on foot in India. Again, I note that the proceedings were not commenced at the same time which suggests they are not interconnected.
The order in which the proceedings were instituted
The wife also relies on the fact that she initiated the proceedings first in time.
The husband submits that whilst the wife’s divorce application was filed first in time he was not aware of those proceedings. He points out that the letters the wife annexes to her affidavit from the Consulate General of India in Melbourne go to the issue of attempted service and do not support the husband being on notice of the divorce application. The fact that she had filed other proceedings in December 2017, which she asserts the husband was aware of, does not assist.
One factor to consider is the principle that a person who has regularly invoked proceedings has a prima facie right to have these proceedings determined in that forum. In this case, the wife filed her divorce application first in time. This is one factor to consider but it is not decisive.
In Sankil and Sankil the wife had obtained an injunction in the Indian court directed to the husband restraining him from continuing his application for divorce in Australia. The husband breached that injunction. That is not the case here.
The stage at which the proceedings have reached
It is relevant to consider the stage of the proceedings and the costs incurred as well as the connections of the parties and their marriage with each of the jurisdictions. I do not have evidence with respect to this although I observe some of the wife’s applications in India commenced in 2017. The wife says the husband has been obstructive and refuses to engage in those proceedings.
The Australian proceedings can be finalised without the need for a further court appearance.
The costs that have been incurred by the parties
Neither party has addressed this.
The connection with the parties and their marriage with each of the jurisdictions
The parties met in Australia. They returned to India to get married. The wife argues that by getting married in India the parties intended to be bound by Hindu matrimonial and customary laws under the Hindu Marriage Act 1955. (Both parties are Hindus.) The wife annexes Facebook exchanges dated … 2016 between the parties where the husband mentions wanting a “roka” which is a free wedding ceremony and that he also demanded dowry in the form of a motor vehicle.
I am not prepared to draw such an inference. It is not at all uncommon for parties to marry overseas particularly if that is where their family is located. In my experience many people entering into relationships do not turn their minds to their legal entitlements.
The wife also argues that the husband’s failure to register the divorce under the Family Law Act1975 is another indication that he intended Indian law rather than Australian law apply. There is no requirement or process for registering foreign marriages under the Family Law Act 1975. Evidence of such marriages are regularly accepted in divorce proceedings provided the legislative requirements of s.104(3) of the Family Law Act 1975 are met.
The husband submits that the wife has made false claims in the Indian divorce application referring to both parties being Indian citizens and that they both resided in India.
The wife submits that both parties have connections to India and that there are witnesses in India and it will cause undue hardship for the witnesses to give evidence from Australia.
She further submits that she is not an Australian citizen and her job does not have finality in Australia. She says her visa expires on … 2019 but she is silent as to what her intentions are and whether she has sought an extension of that visa or intends to return to India.
In his submissions filed 14 March 2019 the husband points to the fact that both parties lived in Australia prior to and for the duration of their marriage. Both remain living in Australia. The husband is an Australian citizen and the wife is in on a visa which is not dependent on the husband’s sponsorship and predates their relationship. The wife is silent about her future plans.
The issues on which relief might depend in each of the jurisdictions
I do not have sufficient information with respect to the Indian proceedings. The Australian proceedings are limited to the divorce.
The resources of the parties and their understanding of language enabling the parties to participate in the respective proceedings on an equal footing
It is relevant to consider whether or not the parties can participate in the respective proceedings on an equal footing. There may be other factors depending on the circumstances of the case and the nature of the issues in dispute in the case.
The husband points to barriers to his participation in the Indian proceedings which includes the fact that he is not an Indian citizen and that there is a warrant for his arrest and he is fearful of indefinite detention if he were to go to India.
The husband denies that his divorce application is oppressive in the sense referred to by the High Court in Voth. In fact, the divorce proceedings do not require the parties to make any further court attendances given the fact that the Registrar is satisfied as to jurisdiction.
Conclusion
I have considered the various factors set out above. The wife bears the onus of establishing that Australia is an inconvenient forum. She has failed to do so. Balancing those factors I am satisfied that the wife has not discharged her onus. I will grant the divorce and it will become final in one month according with s.55 of the Family Law Act 1975.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 23 May 2019
10
8