Mehra & Bose (No.3)

Case [2013] FCCA 2273

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
Hindu Marriage Act 1955 (India)
Indian Code of Civil Procedure 1908 (India)
Maharashtra Regulation of Marriage Bureaus and Registration of Marriages Act 1998 (India)
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:

  1. The wife’s Application in a Case filed on 12 July 2012 be dismissed.

THE COURT FINDS THAT:

  1. The marriage is proved.

  2. The husband was at all material times a citizen of and otherwise domiciled in Australia.

  3. 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:

  1. 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.

  2. 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:

  1. 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…

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AGLC
Mehra and Bose (No.3) [2013] FCCA 2273
Case
[2013] FCCA 2273
Decision Date

CaseChat Overview and Summary

In *Mehra & Bose (No.3)*, the wife sought a divorce order from the Federal Circuit Court of Australia. The husband contended that he was an Australian citizen and domiciled in Australia at all material times. The wife's application was ultimately dismissed by the court.

The court was required to determine whether the marriage had irretrievably broken down, whether the husband was domiciled in Australia, and whether proper arrangements had been made for the care, welfare, and development of the parties' only child who had not attained the age of eighteen years.

The court found that the marriage was proved and that the ground for divorce, namely irretrievable breakdown, was also proved. Crucially, the court found that the husband was at all material times a citizen of and domiciled in Australia. Furthermore, the court was satisfied that proper arrangements had been made for the only child of the marriage under the age of eighteen. Consequently, a divorce order was made, to take effect on 24 January 2014.

Orders

Orders of the court

THE COURT ORDERS THAT:

1.

The wife’s Application in a Case filed on 12 July 2012 be dismissed.

THE COURT FINDS THAT:

2.

The marriage is proved.

3.

The husband was at all material times a citizen of and otherwise domiciled in Australia.

4.

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:

5.

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.

6.

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:

7.

A divorce order be made, such divorce order to take effect and thereby terminate the marriage on 24 January 2014.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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