MALIK & JOSHI

Case [2019] FCCA 1360

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

  1. 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

  1. The issue I am asked to determine is whether or not Australia is an inconvenient forum to determine the parties divorce.

  2. 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.

  3. 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.

  4. 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.

  5. The husband grew up in India. The husband moved to Australia in … 2009…

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Details
AGLC
Malik and Joshi [2019] FCCA 1360
Case
[2019] FCCA 1360
Decision Date

CaseChat Overview and Summary

This matter concerned a dispute between Mr. Malik and Ms. Joshi regarding divorce proceedings. Both parties resided in Australia, but the wife had initiated divorce proceedings and other applications in India, while the husband had filed for divorce in Australia. This created a forum dispute, requiring the court to determine the appropriate jurisdiction for the divorce.

The central legal issue before the court was whether it had jurisdiction to grant a divorce, given the parallel proceedings in India. This involved considering the admissibility and sufficiency of evidence presented regarding Indian law, particularly concerning the recognition of Australian divorce orders by Indian courts. The court was required to assess whether the wife had adequately adduced evidence of foreign law as required by the Evidence Act 1995.

Judge Harland noted that while the wife referred to Indian legislation and provided copies of two Indian cases, she had not complied with the requirements of section 174 of the Evidence Act 1995 by providing official copies of statutes or reliable publications. Furthermore, the source of the case reports was unclear, and there was no expert evidence on Indian law. The court drew upon the Full Court's observations in *Talwar* and *Sarai*, which emphasised that foreign law is a question of fact that must be established by evidence, and that a court should not conduct its own research into foreign law when such evidence is lacking.

The court directed that the divorce order be made to take effect on 24 June 2019, one month and one day after the decision was handed down.

Orders

Orders of the court

1.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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