Marston & Marston
[2021] FedCFamC1F 218
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Marston & Marston [2021] FedCFamC1F 218
File number(s): SYC 3204 of 2020 Judgment of: REES J Date of judgment: 23 November 2021 Catchwords: FAMILY LAW – DIVORCE – Review of a registrar’s decision – Where Australia is not a clearly inappropriate forum to determine the application – Parties have lived separately and apart for a continuous period of 12 months – No reasonable likelihood of resumption of cohabitation – Irretrievable breakdown – Where proper arrangements have been made for the children – Divorce order granted. Legislation: Family Law Act 1975 (Cth) ss 39(3), 48, 49, 55A Cases cited: Henry v Henry (1996) 185 CLR 571
Pierson & Romilly (2020) FLC 93-959
Division: Division 1 First Instance Number of paragraphs: 69 Date of hearing: 18 November 2021 Place: Sydney Counsel for the Applicant: Ms Tabbernor Solicitor for the Applicant: Freedman & Gopalan Solicitors Respondent: Self-Represented ORDERS
SYC 3204 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MARSTON
Applicant
AND: MR MARSTON
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
23 NOVEMBER 2021
THE COURT ORDERS:
1.That a divorce order be made, such divorce order to take effect, and thereby terminate the marriage on the 24th day of December 2021.
2.That the husband’s Application in a Proceeding filed 16 October 2020 is dismissed.
3.That within 14 days of the date of these orders, the husband file and serve any application in relation to the costs of the Australian proceedings together with any affidavit upon which he seeks to rely.
4.That the issue of costs will be determined in Chambers without further attendance by either party.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Marston & Marston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Ms Marston (“the wife”) and Mr Marston (“the husband”) were born in Country B and married in Country B in 2000. There is no dispute that the marriage was valid. They migrated to Australia in 2000 and both became Australian citizens in 2005.
The wife has applied for a divorce order on the basis that she asserts they separated on 22 May 2019. The husband opposed the making of that order and now seeks to review the decision of the registrar granting the divorce order.
Thus this matter proceeds as a hearing de novo of the wife’s application for divorce.
The application is governed by the provisions of s 48 and s 49 of the Family Law Act 1975 (Cth) (“the Act”) which are set out below:
48 Divorce
(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.
49 Meaning of separation
(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.
Section 39(3) of the Act provides:
(3) Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order is filed in a court, either party to the marriage:
(a) is an Australian citizen;
(b) is domiciled in Australia; or
(c) is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.
The wife’s Application for Divorce was filed on 22 May 2020, one year after the date she asserts the parties separated.
After the wife filed her application, the husband instituted proceedings in Country B pursuant to the Divorce Act 1869 seeking a decree of restitution of conjugal rights and an anti-suit injunction restraining the wife from proceeding in Australia with her divorce application. The husband does not seek a divorce in Country B.
The husband filed a Response to the Application for Divorce on 15 July 2020.
In that response he asserted:
1.A legal proceeding has been initiated in another jurisdiction, [Country B] Court System.
2.No legal notice has been served on me, I came to know about this proceeding, by accident, as part of a Police Investigation on [named].
3.No provision in [Country B] law for service of legal notice in person to [a Country B] resident neither in Australian law for service of legal notice in person to an overseas resident.
4.I have not been able to talk or discuss with [the wife] since she sent a WhatsApp message on 22 May 2019 asking for a divorce.
5.No intimation from [the wife] or anyone else since then regarding a divorce proceeding in the [Country B] or Australian courts.
6.I am worried about [the wife’s] mental health and the wellbeing of our children, when [the wife] claims to be a God.
More details in my attached Statement.
I propose to treat the statement, of some six pages, as the evidence the husband relied upon in support of his response.
As I understand the husband’s case, he disputes the wife’s assertion that the parties separated on 22 May 2019 and he denies that the marriage has irretrievably broken down.
The husband filed an Application in a Proceeding on 16 October 2020 in which he sought orders in the following terms:
1. Rescind the Divorce Order made on 15 September 2020.
2.Halt any Australian Divorce proceedings until such time the Honourable High Court of [C State], [Country B] makes a ruling on the Anti-suit Injunction Order sought by the [husband]…
3.Instruct the [wife]… to participate in the Anti-suit injunction proceedings in the Honourable High Court of [C State], [Country B], failing which the Honourable High Court [C State] would issue orders ex-parte, which will be binding on the [wife].
The husband also relies upon the following:
·Affidavit of the Husband sworn 19 April 2021
·Letter from the wife’s solicitor to a registrar dated 28 May 2021
·Affidavit of Advocate Ms D sworn in June 2021
·Affidavit of Advocate Mr E sworn 3 September 2021
·Affidavit of the Husband sworn 12 September 2021
Ms D is a lawyer practising in Country B who provided advice to the wife’s lawyers, inter alia, that because the wife is not domiciled in Country B, the Country B Courts do not have jurisdiction to grant the divorce.
Mr E is the senior counsel who represented the wife in the Country B proceedings. He deposed that the anti-suit injunction that was made on the application of the husband in Country B on 18 March 2021 was revoked on 30 March 2021 and that there is no impediment to the application’s being heard in Australia.
In so far as the husband raises issues as to service, he has participated in the proceedings in Australia and filed a Response to the Application for Divorce. I am satisfied that he has been served with the application and has adequate notice of the substance of the application before the Court.
I propose to deal firstly with the husband’s application filed 16 October 2020. In so far as that application seeks that the divorce proceedings be “halted”, I understand from the husband’s oral submissions that he contends that Australia is a clearly inappropriate forum.
In Henry v Henry (1996) 185 CLR 571 (“Henry”), the High Court considered the principles to be applied in considering an application relating to forum. The Court held that the test to be applied is that of a “clearly inappropriate forum”. The High Court noted:
39.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. 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.
40.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.
(Footnotes omitted)
Further, the High Court noted that:
25.… legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being “where the case may be tried ‘suitably for the interests of all of the parties and for the ends of justice’”.
It follows from the decision in Henry that the matters here to be considered are:
·Do both courts have jurisdiction in relation to the parties and their marriage?
·If both have jurisdiction, will each recognise the orders and decrees of the other? 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.
·Which forum can provide more effectively for complete resolution of the matters involved in the controversy?
·The order in which the proceedings were instituted, the stage they have reached and the costs that have been incurred.
·The connection of the parties and their marriage to each of the jurisdictions.
·Whether, having regard to their resources and their understanding of the language, the parties are able to participate in each jurisdiction on an equal footing?
·Does either party have a legitimate personal or juridical advantage in proceedings in his or her chosen forum?
As the Full Court stated in Pierson & Romilly (2020) FLC 93-959:
14.…the process is not one of weighing those factors that point towards a stay against those that point away from a stay, but rather of assessing whether there are enough factors indicating that the forum is clearly inappropriate, in which case a stay should be granted. If there are significant factors pointing to the conclusion that the chosen forum is appropriate, it is immaterial that there may be many factors suggesting that another forum might also be appropriate or even more appropriate.
Do both courts have jurisdiction in relation to the parties and their marriage?
The only application to be determined is the Application for Divorce. The Australian court, as is explained later in these reasons, has jurisdiction.
Ms D, in the report annexed to the affidavit sworn in June 2021, stated that the Country B courts do not have jurisdiction to entertain a petition for dissolution of marriage, instituted by either party, because the wife is not domiciled in Country B.
If both have jurisdiction, will each recognise the orders and decrees of the other? 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.
Ms D stated:
The decree of divorce granted by the Australian Court, if granted on grounds of irretrievable breakdown of marriage, cannot be considered as conclusive and will not be enforceable in [Country B].
No divorce is being sought in Country B.
Which forum can provide more effectively for complete resolution of the matters involved in the controversy?
The controversy is the divorce.
The Australian court can resolve the matter immediately.
The order in which the proceedings were instituted, the stage they have reached and the costs that have been incurred.
The wife’s Application for Divorce was instituted first in time.
That application can be dealt with in this hearing without further expense to the parties.
The wife has incurred costs which she assesses to be $35,876.30 since the husband sought to review the decision of the registrar to grant the divorce order.
There are no proceedings for divorce in Country B.
The connection of the parties and their marriage to each of the jurisdictions.
The wife, although born in Country B and an Overseas Citizen of Country B, is also an Australian citizen and domiciled in Australia. She has no intention of returning to live in Country B.
The husband is also an Overseas Citizen of Country B and an Australian citizen. The husband has lived in Country B since May 2019 and does not intend to return to live in Australia.
Whether, having regard to their resources and their understanding of the language, the parties are able to participate in each jurisdiction on an equal footing?
Each party has demonstrated his or her ability to participate in proceedings in either jurisdiction.
Does either party have a legitimate personal or juridical advantage in proceedings in his or her chosen forum?
The wife seeks to pursue her Application for Divorce that she cannot pursue in Country B.
Granting the divorce order will not prevent the husband from pursuing his application for restitution of conjugal rights.
Ms D stated:
As the decree of divorce granted in Australia would fail to be recognized in [Country B], it is within the jurisdiction of [Country B] courts to order restitution of conjugal rights.
In the circumstances of this case, Australia is not a clearly inappropriate forum.
As to Order 3 sought in the Application in a Proceeding, this Court has no power to make the order which the husband seeks.
THE APPLICATION FOR DIVORCE
The issues to be determined are:
·Does the Australian court have jurisdiction to hear and determine the Application for Divorce?
·Have the parties been separated for a continuous period of 12 months?
·Is there a reasonable likelihood of resumption of cohabitation?
·Has the marriage irretrievably broken down?
DOES THE AUSTRALIAN COURT HAVE JURISDICTION TO HEAR AND DETERMINE THE APPLICATION FOR DIVORCE?
The wife deposed that she regards Australia as her permanent home; that she is an Australian citizen and that she has lived in Australia for the 12 months immediately prior to filing the application.
None of these matters is disputed by the husband.
The Australian court has jurisdiction to hear and determine the application.
HAVE THE PARTIES BEEN SEPARATED FOR A CONTINUOUS PERIOD OF 12 MONTHS?
The husband left Australia on 21 May 2019 to travel to Country B and he has since lived in Country B.
The wife deposed that the husband left Australia to escape a government enquiry and prosecution in relation to fraud.
On 22 May 2019, the wife sent a message to the husband stating, inter alia:
I do not wish to be married to you anymore. Accordingly, I will be filing for a divorce at the earliest opportunity. Nobody can change my mind on this – I have never been surer about a decision in my life. I have no doubt that all this is the absolute right thing to do. We need to work out our karma separately from now onwards.
In his statement annexed to the response, the husband stated:
Since that message of [the wife] of 22nd May 2019, I have been trying to find out what made [the wife] to send such a message to me… Unfortunately, [the wife] has refused to meet with me or talk to me on the phone regarding anything since 22 May 2019. [The wife] also pushed back efforts from at least 20 different people asking for reconciliation.
I am satisfied that the parties have lived separately and apart for a continuous period of 12 months since 22 May 2019.
IS THERE A REASONABLE LIKELIHOOD OF RESUMPTION OF CO HABITATION?
The wife deposed:
The [husband] consistently lied to me all through the investigation and ensuing period, that is from December 2018 to May 2019…
However, as the days went by, I discovered that the [husband] was lying, when I heard his admission of involvement in bribery.
The wife deposed:
I have now filed for a Divorce as I sincerely believe that the [husband] and I have irreconcilable differences, and I do not wish to continue with this marriage.
I accept the evidence of the husband that the wife has refused to have any communication with him since 22 May 2019 and that she has declined to participate in counselling with him.
In those circumstances I find that there is no reasonable likelihood of resumption of cohabitation.
HAS THE MARRIAGE IRRETRIEVABLY BROKEN DOWN?
Whether the marriage has irretrievably broken down is not a matter of subjective intention. I accept that the husband does not wish the marriage to end although I am unable to find any evidence that he intends to return to Australia.
The finding is made after an objective assessment of the evidence. It is sufficient that the Court is satisfied that one party has no intention of resuming the marriage relationship.
The wife has no such intention.
I find that the marriage has irretrievably broken down.
PARENTING ARRANGEMENTS
Section 55A of the Act provides:
55A Divorce order where children
(1)A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:
(a)that there are no children of the marriage who have not attained 18 years of age; or
(b) that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:
(i)proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
(ii)there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.
The parties have two children, aged 16 and 12 years. Both children live with the wife in Australia. The husband, in the statement annexed to his response, refers to phone and/or video calls with the children which have occurred since about September 2019.
The wife, in her application, states that the children have video calls with the husband for about an hour at least twice each week.
Both children are doing “exceptionally well” at school.
The husband makes no financial or other contribution to the children’s care. The wife pays their private school fees and all the costs associated with their care.
The husband complains that the wife has refused to allow the children to travel to Country B to spend holiday time with him but he also states that he is unable to leave Country B and travel to Australia to spend time with the children.
I am satisfied that proper arrangements, in the circumstances of this case, have been made for the care, welfare and development of the children.
A divorce order will be made.
COSTS
The wife seeks an order for costs in relation to the proceedings since the husband filed his application to review the divorce order.
She has incurred costs of $35,876.30.
Counsel for the wife submitted that, if the husband is wholly unsuccessful, then costs should follow.
The husband opposes that application and seeks an order that the wife pay his costs.
Directions will be made for the filing of the husband’s material in relation to costs and the issue will be determined in chambers.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 23 November 2021
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