Mehra & Bose (No.3)
[2013] FCCA 2273
•23 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MEHRA & BOSE (No.3) | [2013] FCCA 2273 |
| Catchwords: FAMILY LAW – Divorce proceedings commenced by husband – whether a permanent stay of the divorce proceedings should be granted – whether the divorce proceedings should be stayed pending the outcome of the Indian divorce proceedings – final parenting orders made by this Court in 2011. |
| Legislation: Family Law Act 1975, ss.39, 48, 55, 65Y, 79 Federal Circuit Court Rules, r.13.10 |
| Bose & Mehra [2010] FMCAfam 353 CC & BC [2007] FMCAfam 56 Henry v Henry (1996) FLC 92-685 In the Marriage of Falk (1977) FLC 90-247 In the Marriage of Pavey (1976) FLC 90-051 In the Marriage of Salacup (1993) FLC 92-431 In the Marriage of Todd (No.2) (1976) FLC 90-008 Mehra & Bose [2011] FMCAfam 263 Mehra & Bose [2012] FamCA 164 Oceanic Sun Line Shipping Co Ltd v Fay (1988) 165 CLR 197 Russell & Russell (No.5) [2012] FamCA 917 Skinner v Alfonso-Skinner [2010] FamCA 329 Technip SA v SMS Holding (P) Lyd & Ors (2005) 5 SCC 465 (India) Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Y. Narasimna Roa & Ors v Y. Venkata Lakshimi & Anor (1991) 3 SCC 451 (India) Youseff and Youseff (1997) FLC 92-72 |
| Applicant: | MR MEHRA |
| Respondent: | MS BOSE |
| File Number: | SYC 1119 of 2010 |
| Judgment of: | Judge Monahan |
| Hearing date: | 29 July 2013 |
| Date of Last Submission: | 29 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 23 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Self-represented litigant |
| Counsel for the Respondent: | Ms Shearman |
| Solicitors for the Respondent: | Salvos Legal Humanitarian Law |
ORDERS
THE COURT ORDERS THAT:
The wife’s Application in a Case filed on 12 July 2012 be dismissed.
THE COURT FINDS THAT:
The marriage is proved.
The husband was at all material times a citizen of and otherwise domiciled in Australia.
The ground for the application for a divorce order, namely, that the marriage has broken down irretrievably, is proved.
THE COURT, BY ORDER, DECLARES THAT IT IS SATISFIED:
The only child of the marriage, as that expression is defined in section 55A(3), who has not attained the age of eighteen years is the child: X born (omitted) 2008.
The only child of the marriage who has not attained the age of 18 years is the child specified in the order and that proper arrangements in all the circumstances have been made for the care, welfare and development of the child.
AND THE COURT FURTHER ORDERS THAT:
A divorce order be made, such divorce order to take effect and thereby terminate the marriage on 24 January 2014.
IT IS NOTED that publication of this judgment under the pseudonym Mehra & Bose (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1119 of 2010
| MR MEHRA |
Applicant
And
| MS BOSE |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns divorce proceedings between MR MEHRA (“the husband) and MS BOSE (“the wife”)
The husband filed his present Application for Divorce on 29 March 2012.
In her Application in Case filed on 12 July 2012, the wife seeks a permanent stay of this Application on the basis that Australia is a clearly inappropriate forum for the proceedings to be heard. In the alternative, she seeks a stay of the divorce proceedings pending the outcome “of the Indian proceedings commenced by petition filed 23 July 2010”. The wife also seeks her costs.
The parties have a long history of litigation both in this Court and in the Family Court of Australia (“the Family Court”). In addition, there have been a number of legal proceedings between the parties in India including, as stated, a ‘divorce petition’ filed by the wife against the husband in 2010 that is yet to be determined.
At the final hearing the husband was a self-represented litigant. The wife was legally represented by Ms Shearman of counsel.
Given the issues in dispute, the hearing proceeded by way of submissions with oral evidence given by the parties’ respective expert witnesses by telephone from India. By agreement, the experts prepared a joint statement forwarded to the Court on 25 May 2013 and both heard the other’s evidence. The relevant evidence is discussed further in these reasons.
Unless otherwise stated, all statutory references are to the Family Law Act 1975 (“the Act”).
Background and chronology
As stated, the parties have a history of litigation before this and other Courts.
As both parties included comprehensive chronologies in their case outlines, these have been reproduced into a combined chronology where agreement is evident, with supplementary dates sourced from the parenting judgment of Scarlett FM (as he then was) on 11 March 2011.[1] Supplementary dates are indicated with an asterisk and any discrepancies are included in parentheses.
[1] Mehra & Bose [2011] FMCAfam 263 at [5] – [27].
(omitted) 1975 Husband born (omitted) 1978 Wife born (omitted) 2004 Parties marry in India September 2004* Wife arrives in Australia on a tourist visa and parties reside in Melbourne December 2005* Husband becomes a permanent resident of Australia February 2005* Wife’s Australian tourist visa expires and she returns to India May 2005* Husband joins the (employer omitted) September 2005* Wife returns to Australia (omitted) 2005 Parties marry in Victoria March 2006* Parties relocate to Sydney (omitted) 2008 Child “X” born 31 December 2008* Parties travel to India 1 January 2009 Final separation date, according to the husband (wife alleges it was 31 December 2008) January – February 2009* Altercations between husband and his family and wife and her family February 2009 Husband and paternal grandfather arrested and legal proceedings commenced in India by the wife against the husband. Husband returns to Australia shortly after 28 February 2009* Wife and child return to Australia and parties briefly reconcile 7 April 2009* Parties separate 24 July 2009* Husband commences parenting proceedings in the Federal Magistrates Court (as it then was) 7 September 2009 Orders made placing the child on the Airport Watchlist and restraining parties from removing her from the Commonwealth of Australia 24 February 2010 Husband files initial Application for Divorce 2010* Wife seeks to travel with the child to India to assist with criminal proceedings there, husband opposes such travel 20 April 2010* Orders made allowing the wife to take the child to India for a short period 11 March 2011 Final orders made by Scarlett FM (as he then was) Early 2012 Wife initiates divorce proceedings in India 12 March 2012 Husband’s first application for divorce dismissed 29 March 2012 Husband files subject application for divorce
Following the final hearing in relation to parenting matters, Scarlett FM made orders on 11 March 2011 to following effect; namely that:
·the parties have equal shared parental responsibility for X;
·the child live with the wife and spend defined time with the husband including overnight weekend time and half the school holidays upon the child commencing school;
·a specific restraint upon the wife removing the child from Australia until 31 March 2013; and
·the continuation of a restraint prohibiting anyone from removing the child from Australia (and continuation of an Airport Watch List order) until 31 March 2013.
As stated above, there is no dispute that the parties went through a Hindu religious marriage ceremony in India pursuant to Hindu Marriage Act 1955 (India) on (omitted) 2004 and that marriage was formally registered under the Maharashtra Regulation of Marriage Bureaus and Registration of Marriages Act 1998 on (omitted) 2004 (“the Indian Marriage”). The parties also went through a subsequent ‘marriage’ ceremony in (omitted), Victoria on (omitted) 2005 (“the Australian ‘marriage’”).
In relation to the divorce proceedings, the husband first sought to divorce the wife with his Application filed in this Court on 24 February 2010 (“the husband’s first divorce application”). In that Application, the husband sought a divorce order in relation to the Australian ‘marriage’.
The husband’s first divorce application was ultimately considered by Justice Rees of the Family Court on 12 March 2012. Her Honour found that the Australian ‘marriage’ did not to constitute a valid marriage under Australian law.[2] Consequently, Rees J made orders dismissing the first Australian divorce application and the divorce order made 8 April 2010 was set aside. In addition, the husband was ordered to pay the wife’s solicitors costs in the sum of $4,000.
[2] Mehra & Bose [2012] FamCA 164.
As stated, the Husband filed a further Divorce Application on 29 March 2012 in relation to the Indian marriage which is the subject of these current proceedings (“the husband’s second divorce application”).
It would appear that the wife filed her own divorce petition on 23 July 2010 in the Mumbai Family Court. It further appears that this petition was registered on 6 August 2010. The service of the Indian Divorce proceedings on the husband appears to have been somewhat difficult. Those proceedings are still pending before that Court.
Agreed facts
There is no dispute between the parties in relation to the following facts; namely that:
·the parties were married in India in a Hindu ceremony on (omitted) 2004 (in the circumstances, a copy of the relevant marriage certificate, which I note is attached as Annexure A to the wife’s affidavit affirmed on 11 July 2012 and filed on 12 July 2012, will be admitted into evidence and marked “Exhibit A”);
·the husband is an Australian citizen and otherwise is domiciled in Australia (a copy of the husband’s Australian passport issued 13 February 2006, which I note was filed with the husband’s first divorce application, will be admitted into evidence and marked “Exhibit B”);
·the parties have been separated for more than 12 months (and I note that there is an assertion that that parties separated on or about 1 January 2009 in paragraph 14 of the husband’s second divorce application,[3] although the wife refers to it occurring on 31 December 2008 in paragraph 3 of her affidavit affirmed on 11 July 2012 and filed on 12 July 2012);
·there is one child of marriage, X, who is the subject of final parenting orders between the parties that were made by Scarlett FM on 11 March 2011; and that
·this Court has jurisdiction under s.39(3) of the Act to hear and determine the husband’s second divorce application.
[3] I note, however, that in paragraph 15b of the husband’s second divorce application he states that he regarded the marriage as over “on 24 February 2010”. That said, I note that there is evidence of their being a child support assessment being in existence as of 1 April 2009 (see Exhibit “D”).
Issue in dispute
The issue for determination is whether Australia is a clearly inappropriate forum to determine the husband’s second divorce application.
If the Court determines that Australia is a clearly inappropriate forum then it should consider a permanent stay or dismissal of the husband’s second divorce application.
If the Court declines to make such a determination then, in light of the agreed facts, a divorce order should be made.
Evidence
Although the husband’s case outline document listed a large number of documents that he sought to rely upon, it is clear to the Court that his intention was to specifically rely upon the following at the hearing:
·Application for Divorce filed 29 March 2012;
·Affidavit of Advocate Mr N sworn on 30 October 2012 and filed on 31 October 2012; and
·Affidavit of husband sworn and filed on 8 April 2013.
The wife relied upon the following at the hearing:
·Application in a Case filed 12 July 2012;
·Affidavit of wife sworn 11 July 2012 and filed 12 July 2012; and
·Affidavit of Advocate Mr M sworn 7 March 2013 and filed 8 March 2013.
In addition, the parties relied on the Joint Statement of Advocate Mr N and Advocate Mr M received by the Court on 25 May 2013 (in the circumstances this joint statement will be admitted into evidence and marked “Exhibit C”).
Law and discussion
The Court will first consider the law relevant to divorce applications before secondly considering the issue as to whether Australia is the clearly inappropriate forum to determine the divorce application.
Divorce applications
The relevant provisions relating to divorce applications are found in Pt.VI of the Act. Pursuant to s.39(1A) of the Act, divorce applications may be filed in this Court.
Pursuant to s.39(3) of the Act, the Court must be satisfied that it has jurisdiction to deal with the divorce application. The burden of proof rests upon the applicant (ie. the husband in this case).
Firstly, the applicant must establish that either party was either ‘domiciled’ in Australia, ordinarily resident in Australia for a period of not less than 12 months prior to the application or an Australian citizen. A mere assertion by an applicant that he or she is an Australian citizen does not constitute evidence for the purposes of s.39(3) of the Act.[4] Documentary evidence, such as the tender of a birth certificate, passport or citizenship papers, will assist the Court in making the necessary finding. Domicile is proved by ‘intention’, and the intention to remain in Australia must be evidenced by a statement to that effect in the application.[5]
[4] Youseff and Youseff (1997) FLC 92-722 at 83,763 (per Ellis J; Barblett DCJ and Coleman J agreeing).
[5] See Domicile Act 1982; In the Marriage of Salacup (1993) FLC 92-431 at 80,401-02 (per Registrar Northcott).
Secondly, the applicant must establish the existence of a valid marriage. This is generally done by the tender of a copy of the relevant marriage certificate.
Thirdly, the applicant must establish that, pursuant to s.48(1) of the Act, “the marriage has broken down irretrievably”. This is sometimes referred to as ‘the sole ground for divorce’ under Australian law. The only way in which the sole ground for divorce can be established is to satisfy the Court “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”.[6] The Court is not concerned about the reasons for the breakdown of the marriage; the Court need only satisfy itself that a separation took place. Obviously, it is the date of the filing of the application which is crucial, and it must be one year or more after separation occurred.
[6] See s.48(2) of the Act.
The notion of separation is more than mere physical separation.[7] There must be a complete separation from the marriage relationship itself. This is often referred to as the loss of the “consortium vitae” or the partnership for life. This view was supported by the Full Court in In the Marriage of Pavey (1976) FLC 90-051.[8] In In the Marriage of Falk (1977) FLC 90-247, the Full Court held that for separation to occur there also needs to be communication of the necessary intention to separate, which may be direct or indirect.[9]
[7] In the Marriage of Todd (No 2) (1976) FLC 90-008 at 75,079-80 (per Watson J).
[8] In the Marriage of Pavey (1976) FLC 90-051 at 75,212 (per Evatt CJ, Demack and Watson JJ).
[9] In the Marriage of Falk (1977) FLC 90-247 at 76,335 (per Evatt CJ, Fogarty and Bulley JJ).
Section 55(1) of the Act provides that a divorce order takes effect one month after the making of either the divorce order or the ‘s.55A declaration’ (discussed below), whichever is later in time. The Court is empowered to extend or reduce the statutory period.[10]
[10] See s.55(2)(b) of the Act.
Section 55A(1) of the Act provides that a divorce order does not take effect unless the Court is satisfied in relation to one of two matters involving the children of the marriage. Firstly, that there are no children of the marriage who have not attained the age of 18 years; or secondly, that the only children of the marriage who have not attained the age of 18 years are the children specified in the order and that:
·proper arrangements in all the circumstances have been made for the welfare of those children; or
·there are circumstances by reason of which the divorce order should take effect, notwithstanding that the court is not satisfied that such arrangements have been made.
Where the Court has doubts about whether the arrangements for the children are proper in all the circumstances, it may adjourn the divorce proceedings until a family report has been obtained from a family consultant regarding those arrangements.[11]
[11] See s.55A(2) of the Act.
As stated, there was no dispute between the parties, subject to the determination of the wife’s Application in a Case, that this Court has jurisdiction under s.39(3) of the Act to hear and determine the husband’s second divorce application.
Having considered the available evidence in light of the relevant statutory criteria, the Court is satisfied as follows:
·the parties were married in India in a Hindu ceremony on (omitted) 2004;
·the husband is an Australian citizen and otherwise domiciled in Australia;
·the sole ground for divorce is established as the parties separated on or about 1 January 2009 and have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the husband’s second divorce application; and
·given there are final parenting orders in respect of X, I am satisfied that proper arrangements in all the circumstances have been made for her care, welfare and development.
I will return to the issue as to whether a divorce order should be made following a consideration of the wife’s Application in a Case for a temporary or permanent ‘stay’ of the divorce proceedings on the basis that Australia is the clearly inappropriate forum.
Stay application
The Court has the necessary power to summarily dismiss or permanently stay particular proceedings. Under r.13.10 of the Federal Circuit Court Rules2001 the Court may:
“… order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.”
It is clear that the power to stay a proceeding or the operation of an order should only be exercised with caution. Given the above findings, this case is not one in which the husband has no reasonable prospect of successfully prosecuting the proceeding and nor is his application frivolous or vexatious. The wife, of course, argues an abuse of process and submits that Australia is the clearly inappropriate forum to determine the divorce proceedings between the parties.
In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”), the High Court held that a party who has properly instituted proceedings in Australia has a prima facie right to have the proceedings determined by an Australian Court unless Australia is the clearly inappropriate forum.
In Henry v Henry (1996) FLC 92-685 (“Henry”) the High Court further held that the rule in Voth applies to divorce proceedings but that a party’s prima facie right to have the proceedings heard in the jurisdiction in which the proceedings were properly started, should not be overstated.[12]
[12] Henry v Henry (1996) FLC 92-685 at 83,122 (per Dawson, Gaudron, McHugh and Gummow JJ).
The onus is therefore cast upon the wife to satisfy the Court that Australia is a clearly inappropriate forum. As the High Court held in Henry, the question will depend “on the general circumstances of the case, taking into account the true nature and full extent of the issues involved”.[13] The Court must balance the various factors against each other to determine the question of whether Australia is the inappropriate forum.
[13] Henry v Henry (1996) FLC 92-685 at 83-124.
The Court’s power to stay or dismiss proceedings is clearly discretionary. In Oceanic Sun Line Shipping Co Ltd v Fay (1988) 165 CLR 197, Deane J stated:
“That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression.”[14]
[14] Oceanic Sun Line Shipping Co Ltd v Fay (1988) 165 CLR 197 at 247-248.
The relevant authorities also make clear the Court must direct its attention to the inappropriateness of the local forum and not the appropriateness of the foreign forum. In Voth, the majority of the High Court stated:
“The clearly inappropriate forum test is similar to and for that reason is likely to yield the same result as the more appropriate forum test in the majority of cases. The differences between the two tests will be of critical significance only in those cases, probably rare, in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one. But the question which the former test presents is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums. That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum. The important point is that in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the Court may more readily conclude that it is not a clearly inappropriate forum.”[15]
[15] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565.
The High Court in Henry held that a forum will be clearly inappropriate if the proceedings in that Court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging” or vexatious in the sense of “productive of serious and unjustified trouble and harassment”.[16] The High Court has also held that the words “oppressive” and “vexatious” are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings.[17]
[16] Henry v Henry (1996) FLC 92-685 at 83,123.
[17] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 555.
In Henry, the High Court also observed that:
“It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, “the discussion by Lord Goff in Spiliada [[1987] AC 460 at 477-478, 482-484] of relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance.” [Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564-565] In this last regard, Lord Goff of Chieveley expressed the view that 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 the parties and for the ends of justice’ [[1987] AC 460 at 482, quoting Sim v Robinow (1892) 19 R 665 at 668, per Lord Kinnear].” [18]
[18] Henry v Henry (1996) FLC 92-685 at 83,121.
The majority in Henry thereafter determined that the matters properly to be taken into account in deciding the question of whether Australia is a clearly inappropriate forum include:[19]
·whether the Courts of the respective countries have jurisdiction with respect to the parties and the marriage;
·whether both Courts will recognise each other’s orders and decrees;
·which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy;
·the order in which the proceedings were instituted, the stage they have reached and the costs incurred;
·the connection of the parties and their marriage with each of the jurisdictions and the issues on which relief may depend in those jurisdictions; and
·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.
[19] Ibid, at 83,124; see CC & BC [2007] FMCAfam 56 at [25] (per Sexton FM as she then was); see also Skinner v Alfonso-Skinner [2010] FamCA 329 at [69] (per Murphy J) and Russell & Russell (No.5) [2012] FamCA 917 at [68] (per Young J).
In emphasizing the non-exhaustive nature of those matters, the majority in Henry held that “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”.[20]
[20] Ibid.
I will now consider the evidence in light of the above-mentioned considerations.
Do the Courts of the respective countries have jurisdiction with respect to the parties and the marriage?
As stated, there is no dispute that this Court has jurisdiction in relation to all matrimonial issues between the parties. There have been parenting orders made by this Court that followed a contested final hearing in 2011.
I note that in the Joint Statement (“Exhibit C”), the experts state that:
“There is no dispute that the competent court in Australia does have jurisdiction to entertain the petition for divorce file before it would dissolution of marriage between the above said to parties.”[21]
[21] Joint Expert Statement, undated (but received by the Court on 25 May 2013) (“Joint Expert Statement”), page 1.
The wife has commenced divorce and related proceedings in India which the husband has chosen not to participate in. There is no suggestion that these Indian proceedings lack jurisdiction. That said, the wife asserts the possibility that should the husband be granted a divorce order by this Court the husband may attempt to rely on it to ‘stay’ the Indian proceedings with the consequence that the wife would forfeit her opportunity to pursue remedies in India that are unavailable in Australia.[22] However, I note that in the Joint Statement, Mr N (the husband’s expert) is of the view that an Australian divorce order “will not be ground for denying the wife the liberty to pursue the remedy with respect to claim of maintenance and the claim relating to custody of the child in the Indian Court”.[23] Mr N elaborates upon his view in his affidavit.
[22] Wife’s case outline document, 22 July 2013, page 5.
[23] Joint Expert Statement, page 7.
I also note that the Joint Statement then goes on to state while that no opinion is expressed by Mr M (the wife’s expert) on this point, “it cannot be said that there is any area of disagreement between the two”.[24] The Joint Statement then states:
[24] Ibid.
“Mr M on his part is of the view that an opinion on this issue was unwarranted as there is no reason for a court seized of a matrimonial lis to adjudicate on one aspect of the lis and leave it to a court in another jurisdiction to adjudicate of the remainder of the issues arising out of the lis. Apart from the manifest irrationality practicality of maintaining independent proceedings for divorce in one jurisdiction and proceedings for reliefs ancillary to divorce in a separate foreign jurisdiction, such course of action is impermissible according to Indian law for three reasons.
First, wife does not consent to divorce on the ground of irretrievable breakdown of marriage.
Second, even if she were to so consent decree granted by the strain court on the ground will not and cannot be recognised by the concern Courts in India as consent of parties cannot confer jurisdiction on a foreign court to dissolve the marriage on a ground which the Indian Supreme Court has held a post to public policy, equity and good conscience and offends notions regarding sanctity of marriage prevalent in India…
Third, the relief afforded to a wife [under ss. 25 and 27] of the Hindu Marriage Act can only be granted as ancillary reliefs where the primary relief is for a decree of dissolution of marriage by annulment [void marriage] or divorce in cases where a spouse seeks as his/her main relief a decree of restitution of conjugal rights. In other words applications [under ss. 25 and 27] of the Hindu Marriage Act are not in the nature of independent or stand alone proceedings but provisions under which relief can only be granted where proceedings have been initiated under Hindu Marriage Act for annulment of marriage, dissolution of marriage by divorce or restitution of conjugal rights.”[25]
[25] Ibid, pages 7-9.
Mr M’s opinion is further elaborated upon in his affidavit.
Overall, I am satisfied that the evidence suggests that Courts of Australia and India have jurisdiction with respect to the parties in this case in respect of their marriage.
Do both Courts recognise each other’s orders and decrees?
Generally speaking, the Courts of Australia and India recognise each other’s orders and decrees.
I note that in her divorce petition filed in the Mumbai Family Court at (omitted) (“the wife’s divorce petition”),[26] the wife seeks, inter alia, a divorce under “sec. 13(1)(ia) of the Hindu Marriage Act 1955”. I note that the relevant provision states:
“… any marriage solemnized, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by decree of divorce on the ground that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty…”
[26] Wife’s Divorce Petition, paragraph 46(a); see Wife’s affidavit affirmed 11 July 2012 and filed 12 July 2012, Annexure G.
If the divorce is ultimately granted in India, then the wife argues that if a divorce decree were granted in India, that order would be recognised in Australia pursuant to s.104(3)(d) of the Act. This was not disputed by the husband. Section 104(3)(d) states:
“(3) A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, effected in accordance with the law of an overseas jurisdiction shall be recognized as valid in Australia where:
…
(d) the respondent was a national of the overseas jurisdiction at the relevant date …”
In other words, Australia would recognise the Indian decree, if granted, despite ‘cruelty’[27] not being a specific ground for divorce under the Family Law Act 1975. This is because the husband (being the respondent to the wife’s application) was an Indian national at the relevant date (despite him obtaining Australian citizenship).
[27] The grounds for divorce available under s.13(1) of the Hindu Marriage Act 1955 also include adultery, desertion of 2 years following “presentation of the petition”, ceasing to be Hindu, unsoundness of mind, leprosy, venereal disease, renouncing “the world by entering a religious order”, or being missing for period of 7 years. Further grounds are available under s.13(2). Divorce by ‘mutual consent’ on the ground that “the parties have been living separately for a period of one year or more” and that “they have mutually agreed that the marriage should be dissolved” is also available under s.13B(1). Also see s.13B(2).
For completeness, I note that the terms ‘relevant date’ and ‘respondent’ are defined in s.104(1) as follows:
““relevant date”, in relation to a divorce … means the date of the institution of the proceedings that resulted in the divorce …
“respondent" in relation to a divorce … means a party to the marriage, not being a party at whose instance the divorce … was effected.”
I also note that the term ‘national of a country’ is defined in s.104(2) as:
“…a person who is a national of a country of which an overseas jurisdiction forms part shall be deemed to be a national of that overseas jurisdiction.”
The experts in this case disagree about whether an Australian divorce order, based upon irretrievable breakdown of marriage, would be recognised by the Indian courts, including the Court that the wife commenced proceedings in following the filing of the husband’s first divorce application.
The controversy surrounds the effect of ss. 13 and 14 of the Indian Code of Civil Procedure 1908 (‘the Civil Code”). The relevant provisions state:
“13. When foreign judgment not conclusive
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except?
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.
14. Presumption as to foreign judgments.
The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.”
The wife (and the wife’s expert) submit that because ‘irretrievable breakdown of marriage’ is not a valid ground for divorce under Indian law, an Australian divorce order will not be recognised as valid in India by virtue of s.13(f) of the Civil Code.[28] Advocate Mr M cites in support the decision of Y. Narasimna Roa & Ors v Y. Venkata Lakshimi & Anor (1991) 3 SCC 451 (“Rao”) (a copy of which he attaches to his affidavit).
[28] Wife’s case outline document, 22 July 2013, page 7; see also Advocate Mr M’s affidavit sworn 7 March 2013, page 8.
This view is disputed by the husband (and the husband’s expert) who argues that an Australian divorce order is capable of recognition in India. Mr N contends that Roa is no longer good law, having been superceded by a later decision of the Supreme Court of India; namely Technip SA v SMS Holding (P) Lyd & Ors (2005) 5 SCC 465 (a copy of which he attaches to his affidavit).
Having considered the respective views of the experts, I accept the evidence of Mr N that an Australian divorce order may be recognised in India. Moreover, I also accept Mr N’s evidence that the making of a divorce order in Australia, or dissolution of marriage by an Indian Court, would not necessarily prevent the wife from pursuing claims for maintenance, return of dowry and child support in India. That said, I note that the wife has a child support assessment (and presumably is receiving child support) pursuant to the relevant Australian legislation, and has the option of pursuing spousal maintenance and property claims under Australian law.
Which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy?
As already noted, this Court has jurisdiction in relation to all relevant aspects of the breakdown of the marital relationship: divorce, property, spousal maintenance and child support which is administered by the Child Support Agency.
In the wife’s divorce petition she also seeks orders for the following:
·“permanent custody of the minor daughter” to the wife”;
·on an interim and final basis, the husband pay the wife Rs50,000 per month for spousal maintenance and Rs25,000 per month for child maintenance (a total Rs75,000 a month);[29]
·interim order restraining the husband, “his family members, servant or agents, from removing the minor daughter are from Petitioner’s custody in any manner whatsoever”;
·husband to pay the wife Rs50,000 “towards litigation expenses”;[30]
·costs “of this petition”;
·“such other and further relief’s as this Hon’ble Court may deem fit and proper in the nature and circumstances of the proceedings”.[31]
[29] Based on exchange rates in December 2013, 50,000 Indian Rupees would equate to approximately $900.00 Australian dollars, 25,000 Indian Rupees would equate to approximately $450.00 Australian dollars (a total of approximately $1,350.00 Australian dollars per month). .
[30] Ibid; 50,000 Indian Rupees would equate to approximately $900.00 Australian dollars
[31] Wife’s Divorce Petition, paragraph 46(b)-(f), (h)-(i); see Wife’s affidavit affirmed 11 July 2012 and filed 12 July 2012, Annexure G
It is noteworthy that an Australian Court could provide the types of ancillary relief sought in paragraph 46 of the wife’s divorce petition. In this case, as stated, there are already final parenting orders of this Court, and a child support assessment,[32] in operation. The husband attached a Child Support Transaction Statement for the period 1 April 2009 to 22 July 2013 to his case outline document. This document would suggest that during that four year plus period, child support payments exceeded $31,400.00. In the circumstances I think it appropriate to admit that document into evidence and mark it ‘Exhibit D”.
[32] The husband asserts that his child support assessment “is approximately “$500 to $600 per month” and that he is “up to date with my payments which are directly debited from my salary”: see Husband’s Affidavit sworn and filed on 8 April 2013, paragraph 50.
While the Court acknowledges that there is no specific law in Australia dealing with the ‘return of dowry’, as stated, this Court has jurisdiction in respect of property matters as between parties to a marriage. In making property orders that are just and equitable as between the parties, the Court must consider the statutory factors in s.79 of the Act. This would include contributions made to the acquisition of property before, during and following separation.
While the Court understands the wife’s argument that she may suffer cultural prejudice “if she were to abandon her divorce petition in India”,[33] that outcome may not occur (and hopefully will not occur). Unfortunately, it is also possible that such an outcome could occur even if a divorce decree was obtained India.
[33] Wife’s case outline document, 22 July 2013, page 7.
Given the uncertainties surrounding the current proceedings in India, in particular the uncertainty as to when they are likely to be concluded, and the fact that there are already final parenting orders made in this Court, I am not satisfied that the wife has established that her present Indian divorce proceedings can more effectively provide for a complete resolution of the matters involved following the breakdown of the parties’ marriage some five years ago.
Consequently, I am not persuaded this factor assists the wife’s case.
In what order were the proceedings instituted and at which stage they have reached and what are the costs incurred?
I note that in her case outline, the wife argues that the “husband instituted divorce proceedings in Australia knowing the wife had already initiated proceedings in India”.[34] This assertion, while technically true, ignores the reality that the husband’s first divorce application was filed in this Court on 24 February 2010. That divorce application, as stated, was subsequently considered and dismissed by Rees J (of the Family Court) on 12 March 2012. I note that the husband was a self-represented litigant when that application was filed and heard and that his decision to rely on the Australian marriage ultimately proved fatal to that application.
[34] Ibid, page 6.
The wife, of course, filed her divorce petition on 23 July 2010 in the Mumbai Family Court (that was registered on 6 August 2010). In other words, the wife filed these proceedings in India while the husband’s first divorce application was still before the Courts in Australia.
I note at this stage that the filing of the wife’s petition seems to coincide with her extended visit (with the child) to India in 2010. Of concern is the reality that while Scarlett FM allowed the wife to briefly travel to India after a contested interim application,[35] she overstayed the visit.[36] This resulted in the husband filing a Contravention Application on 18 June 2010 which he withdrew later that year.[37]
[35] Bose & Mehra [2010] FMCAfam 353.
[36] Ibid, at [21]-[22].
[37] Ibid, at [24].
It is not clear from the evidence when the wife’s Indian legal proceedings will be determined.
The present divorce application before me was, of course, filed 17 days after the decision of Rees J dismissing the first application. It came before Registrar Cater-Smith on 17 May 2012 who, given the wife’s foreshadowed ‘forum non conveniens’ argument, adjourned the application before me in my duty list on 16 July 2012. I note again that the wife filed the Application in a Case seeking the stay of the divorce proceedings on 12 July 2012. After further adjourning the proceedings on a number occasions to facilitate the parties obtaining the evidence from their expert witnesses, I note that I ultimately heard the matter on 29 July last.
The costs of the legal proceedings between the parties appear considerable. Although the wife has the benefit of legal representation by Salvos Legal (Humanitarian), she is seeking costs of her stay application (on an indemnity basis).[38] During submissions, Ms Shearman for the wife confirmed that the ‘solicitor/client’ costs of the wife total $15,569.00.[39] She confirmed that the Salvos Legal Humanitarian is on a conditional costs agreement[40] in the amount of $8,800.00. The balance of the wife’s costs is made up by counsel’s fees ($2,200.00) and the fees of her expert ($4569.00).[41]
[38] Transcript, 29 July 2013, page 5.
[39] Ibid.
[40] That is, conditional on there being a costs order made by the Court.
[41] Transcript, 29 July 2013, page 5.
The wife also asserts that she has spent an estimated amount equivalent to $6,500.00 on the Indian divorce proceedings.
The husband’s legal costs appear to total approximately $17,800.00. During submissions the husband asserted that his former lawyers charged him $15,300.00 (of which $5,300.00 allegedly remains owing) and that the fees of his expert were $2,500.00.[42]
[42] Ibid, page 4.
I note that the husband also asserts in his case outline document that the “previous divorce proceedings have exceeded $10,000 cost to the Applicant”,[43] however no evidence to support this assertion is before the Court. That said, it is clear that Rees J made orders on 12 March 2012 for the husband to pay the wife’s legal costs, fixed in the amount of $4,000.00, due to the dismissal of the husband’s first divorce application.
[43] Husband’s case outline document, 22 July 2013, page 6.
Overall, I am not persuaded these factors assist the wife’s case.
What is the connection of the parties and their marriage with each of the jurisdictions and the issues on which relief may depend in those jurisdictions?
I have already provided the relevant history of the parties and their relationship to both India and Australia. The husband is now an Australian citizen and works with the defence forces. The wife is clearly resident in Australia and there is no evidence to suggest that she was (or is) seeking to return to live in India.
Moreover, as there are parenting orders in relation to X, s.65Y of the Act would prevent either party sending the child outside Australia unless there was written consent or a court order permitting such.
There is also evidence that the child is the subject of the child support assessment and that the husband is meeting his obligations in respect thereof.
I otherwise refer to the discussion and comments that I have previously given in these reasons.
Overall, I am not persuaded this issue clearly favours either party’s case.
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?
As stated, the wife has been legally represented throughout these proceedings by Salvos Legal (Humanitarian) and they have a conditional costs agreement. The wife was also represented by Salvos Legal (Humanitarian) in the proceedings before Rees J. The wife appears to have legal representation for the Indian proceedings and was legally represented in the parenting proceedings before Scarlett FM.
The husband was legally represented when these most recent legal proceedings came before me although his lawyers ultimately withdrew prior to the final hearing. The husband appears to have been self-represented in the earlier divorce proceedings and in the parenting proceedings before Scarlett FM.
There are no issues of language in this case.
In my view, no issues arise in relation to this factor.
Conclusion
After considering the factors I have referred to above, I am not satisfied that Australia is a clearly inappropriate forum to determine the husband’s divorce application.
Consequently the wife’s Application in a Case filed on 12 July 2012 is dismissed.
In relation to the husband’s Divorce Application filed on 29 March 2012, I make the following findings:
·The husband is a citizen of Australia and was otherwise domiciled in Australia at the date of filing of the application.
·I find that the parties were married in (omitted), India on 11th May 2004.
·I find that the ground that the marriage has broken down irretrievably proved based on a separation date not later than 1 January 2009.
Accordingly, I make a divorce order.
I declare that there is one child of the marriage being X born on (omitted) 2008 and I am satisfied that proper arrangements have been made for the care, welfare and development of that child.
The divorce order will become final in one month’s time.
I note that both parties sought that their legal costs be paid by the other party. In the circumstances, and in light of this decision, I also see no reason or merit at present to depart from the general principle in s.117(1) of the Act that each party should pay their own costs. In the event that a costs order is pressed then an Application in a Case and relevant supporting affidavit should be filed and the Court can consider these issues separately.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 23 December 2013
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