Misra & Basu
[2024] FedCFamC2F 1231
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Misra & Basu [2024] FedCFamC2F 1231
File number(s): DGC 927 of 2023 Judgment of: JUDGE BURT Date of judgment: 6 September 2024 Catchwords: FAMILY LAW – Divorce – contested application – validity of Country B marriage – forum non conveniens – whether Australia is a clearly inappropriate forum – pending application for restitution of conjugal rights in Country B – unsuccessful application for anti-suit injunction in Country B – presumption of validity of the marriage is not rebutted – nature of the order sought by the wife in the Country B proceedings – parties having connections to Australia – divorce granted. Legislation: Family Law Act 1975 (Cth), ss 39, 48, 55A
Marriage Act 1961 (Cth), ss 5, 88B, 88C, 88D
Convention on Celebration and Recognition of the Validity of Marriages, ch II
Cases cited: Axon v Axon (1937) 59 CLR 395
Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90
In the Marriage of Falk (1977) FLC 90-247
Jacombe v Jacombe (1961) 105 CLR 355
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
RAF & MMF [2005] FamCA 497
Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Division: Division 2 Family Law Number of paragraphs: 84 Date of hearing: 12 August 2024 Place: Dandenong Counsel for the Applicant: Mr Sohota Solicitor for the Applicant: Parminder Sandhu Solicitors The Respondent: In person ORDERS
DGC 927 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MISRA
Applicant
AND: MS BASU
Respondent
ORDER MADE BY:
JUDGE BURT
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.A divorce order be made, such order to take effect and thereby terminate the marriage in late 2024.
2.All extant applications be otherwise dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURT:
INTRODUCTION
These are divorce proceedings instituted by the husband. The wife opposes the application.
The primary disputes between the parties are the issues of validity of the Country B marriage and the question of forum.
BACKGROUND
The husband is 31 years old, and the wife is 29 years old. Both parties are of Country B origin.
The wife said during cross-examination that she migrated to Australia with her parents in 2004. The husband migrated to Australia in 2016. Both parties are now Australian citizens.
There is a dispute as to the payment of a a sum of money: the wife asserts that upon the parties’ engagement her parents paid a sum of money to the husband’s parents. She says further that they purchased jewellery now held by the husband’s parents. The husband denies that a a sum of money was requested or received. Nothing turns on this dispute.
The parties agree that they married in Country B in 2017.
The parties agree that after their marriage they lived with the wife’s parents in Suburb C, New South Wales.
The parties agree that they moved into their own accommodation in 2019. The husband says that happened in late 2019 and the wife says it was in early 2019.
The parties agree that they returned to live at the home of the wife’s parents in early 2020.
The parties have a child, X, who was born in 2020. X lives with the wife.
Both parties allege that they were subjected to abusive behaviour by the other party’s relatives. The wife says that the husband’s parents made abusive comments to her. The husband says that the wife’s father insulted and belittled him whilst he lived in their home. That evidence is irrelevant to the matters before me.
The wife deposes to separation occurring on 28 October 2021 when she says that the husband left the family home.
The husband deposes to travelling to Country B to see his family in late 2021. He says that he told the wife upon his return that he intended to live in Melbourne rather than return to the home of the mother’s parents. He says that the wife continued to live with her parents after he moved to Melbourne.
The husband deposes, and the wife does not dispute, that in late 2021, the parties purchased a property at D Street, Suburb C, New South Wales. The wife continues to live at that address with X.
The husband alleges that in early 2022 the wife’s father and other family members attended at his home in his absence.
The husband annexes to his affidavit filed on 28 September 2023 a screenshot of a message sent by the wife’s father to a government department, which he says was sent to him by a friend. In the message, the wife’s father provides the husband’s date of birth and passport number, alleges that the husband married the wife “for the purpose of citizenship” and alleges further that “he is not a person of good moral character and does not satisfy the Citizenship Act”. The wife appears to concede that the message was sent by her father as alleged. She deposes that her father “had no malafide [sic] intention”.
The husband applied for an intervention order against the wife’s father. An interim order was made in mid-2022. The husband says that a final order was made in late 2022 and annexes a copy of that order to his affidavit filed on 28 September 2023. The wife asserts that the husband withdrew the application but provides no evidence to support that assertion. I accept the evidence of the husband in relation to the making of the final intervention order.
On 21 March 2023, the husband filed an application for divorce in this Court.
In mid-2023, the wife commenced proceedings under s.9 of the Relevant Act 1955 for restitution of conjugal rights in the Family Court of Region E, Country B (“the Country B proceedings”). That application, which is annexed to her affidavit filed on 3 July 2023, does not seek divorce or any other orders terminating the marriage but rather an order which would “direct [the husband] to join with [the wife] to lead conjugal life as a husband of [the wife] in the interest of justice.”
In late 2023, the wife filed an application in the Country B proceedings seeking an injunction to restrain the husband from taking further steps in the divorce proceedings before this Court. The parties agree that that application was dismissed on 20 October 2023 following a hearing in the Country B proceedings. The wife has annexed to her affidavit filed on 13 April 2024 a copy of the reasons for that decision, which are discussed later in these reasons.
On 26 October 2023, orders were made listing this matter for final hearing and requiring each party to file a single affidavit providing details of the Country B proceedings.
The wife deposes to filing further material in the Country B proceedings in late 2023 challenging the dismissal of her original application and seeking to amend it.
The matter could not be reached in early 2024 and was adjourned to mid-2024. Orders were made giving both parties permission to rely on the material filed in preparation for the hearing on 16 April 2024, together with one affidavit setting out what had occurred in the Country B proceedings. A notation to those orders records that the parties told the Court that the wife’s application for the resumption of conjugal rights was listed for hearing in Country B in mid‑2024.
The parties agree that there have been ongoing delays in the Country B proceedings. It appears that the wife’s application to amend her petition was heard in mid-2024 and the parties were told that judgment would be given in mid-2024. There has then been a series of adjournments, with the matter currently listed in late 2024.
The husband was represented by Counsel at the final hearing. The wife appeared unrepresented. I gave her the opportunity to speak to the duty lawyer, as a result of which the hearing did not commence until the afternoon. I explained to her the process which would govern the hearing and the criteria which I would need to consider in determining the application.
MATERIAL RELIED UPON
At the hearing on 12 August 2024, the husband said that he relied upon:
(a)his application for divorce filed on 21 March 2023; and
(b)his affidavits filed on:
(i)28 September 2023;
(ii)15 March 2024; and
(iii)8 August 2024.
At the hearing on 12 August 2024, the wife said that she relied upon:
(a)her response to the application for divorce filed on 30 June 2023;
(b)her affidavits filed on:
(i)3 July 2023;
(ii)11 October 2023;
(iii)13 April 2024; and
(iv)6 August 2024; and
(c)her written submissions dated 11 August 2024.
THE EVIDENCE
The wife took part in the final hearing via Microsoft Teams. I am satisfied that she was able fully to participate in the hearing. There were no technical issues which affected the running of the trial.
It has not been possible to include every aspect of each of the parties' evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
CONSIDERATION OF THE RELEVANT ISSUES
The wife asks me to dismiss the application for divorce on a number of grounds which she confirmed during the hearing are as follows:
(a)Only the Country B Court is competent to dissolve the marriage because it was performed according to Country B religious rites, and both parties were born in Country B; thus interference by this Court would amount to an abuse of process.
(b)She asserts that if this Court grants a divorce, she will lose her “legal rights” including in respect of the sum of money that she says was paid to the husband’s parents, “inheritance rights” which she says will be lost by the parties’ child as well as by her, her education loan and “periodic payments of loan given to the applicant’s property in [Country B]”. She asserts that the Country B Court will consider the sum of money be paid. This Court will only deal with the divorce proceedings whereas “complete relief” is available in the Country B proceedings.
(c)She is unable to afford legal representation in both sets of proceedings.
The wife also raised the validity of the Country B marriage, although her position in that regard appeared to shift both during the course of these proceedings and during the final hearing.
I will consider the question of the validity of the marriage before turning to the other arguments, all of which relate to forum.
In the event that I decide that the application should be heard by this Court, I must then go on to consider whether there has been an irretrievable breakdown of the marriage and whether there are proper arrangements in place for the parties’ daughter.
Validity of the marriage
Section 48(1) of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:
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.
Section 5 of the Marriage Act 1961 (Cth) (“the Marriage Act”) defines marriage as “the union of two people to the exclusion of all other, voluntarily entered into for life”. In circumstances where the parties purported to marry each other in Country B, Part VA of the Marriage Act, which deals with recognition of foreign marriages, is engaged. The object of that part is to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages.
Section 88C of the Marriage Act, which is found in Part VA, provides that:
(1)This Part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where:
(a)under the local law, the marriage was, at the time when it was solemnised, recognised as valid;
(b) …
Section 88B(1) of the Marriage Act relevantly defines a ‘local law’ in the following terms:
“local law” in relation to a marriage solemnised in a foreign country, means the law in the foreign country or in that part of the foreign country in which the marriage was solemnised.
Section 88D(1) then goes on to provide:
Subject to this section, a marriage to which this Part applies shall be recognised in Australia as valid.
Neither party asserts that any of the circumstances to which the remainder of s.88D refers are relevant in this case.
The husband submits that the Country B marriage is valid.
The wife alleged in her affidavit filed on 13 April 2024 that the marriage is invalid because of her religion. She asserts that her application for an anti-suit injunction was dismissed for this reason. In this regard, she relies upon the reasons for judgment of the judge sitting at the Family Court, Region E, Country B in late 2023.
She repeated this submission in her affidavit filed on 6 August 2024, in which she submits that that the Country B marriage is null and void, rendering it impossible for this Court to grant a divorce.
However, in a letter emailed to my chambers and dated 11 August 2024, and treated as written submissions for the purpose of the final hearing, the wife says:
I want to bring to courts attention that the respondent is not claiming that the marriage is invalid. In fact, it is applicant’s […] who filed Rejection of plaint petition in [early] 2024. In that petition [it is] clearly mentioned that Interfaith marriage is void and invalid under [the marriage act]. The respondent and her legal representative in [Country B] are contesting against this Issue and waiting for outcome.
(Errors in original)
At the start of the final hearing, I asked the wife to clarify her position in relation to the validity of the marriage. Initially, she said that she accepted that the marriage was valid. Shortly afterwards, she said that it was invalid. During cross-examination by Counsel for the husband, she said that she considered the marriage to be valid but that according to a decision of the Country B Court, it was invalid.
The reasons for judgment of late 2023 from the Country B proceedings upon which the wife relies indicate that in those proceedings the husband submitted that the wife's application for the restoration of conjugal rights should be dismissed in part because she and her family represented that they were of a different religion at the time of the marriage. The reasons record that the husband’s Counsel submitted that, in those circumstances, the wife is unable to rely on the provisions of the Country B marriage act in order to succeed on her substantive application.
The reasons go on to note that the wife stated in the application of 5 June 2023 that she was resident in Country B, which was contradicted by a document filed by her Country B lawyer in late 2023 indicating that she was residing in Australia. The reasons state further that the wife did not dispute having been served with the Australian divorce application in May 2023 but did not disclose the existence of the Australian proceedings in her application to the Country B Court.
The reasons conclude with a ruling that the wife is not entitled to the anti-suit injunction sought because of her prior knowledge of the Australian proceedings, because both parties are resident and domiciled in Australia, and because the wife had “suppressed material facts” in her application to the Country B Court.
The reasons do not contain a finding as to the validity of the marriage. That is unsurprising given that neither party appears to have sought a decision from the Country B Court in that regard. The reasons do not support the wife’s submission that the invalidity of the marriage led to the failure of her anti-suit application.
It is well-established law that there is a presumption of a valid marriage in cases where a marriage ceremony has been duly performed and where that ceremony is followed by the parties living together for substantial periods of time.[1] The wife concedes on her own evidence that there was a marriage ceremony followed by cohabitation.
[1] Axon v Axon (1937) 59 CLR 395, as referred to in Jacombe v Jacombe (1961) 105 CLR 355.
The questions that then arise are whether the presumption of validity should be rebutted on the facts of this case, which party bears the onus in that regard and whether the evidence justifies rebuttal:
The presumption in favour of the validity of a marriage duly celebrated casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void, whether the fact is an impediment consisting in a prior marriage or a prohibited degree of relationship or the failure to fulfil some condition indispensable to the efficacy of the ceremony. Furthermore, proof that the parties lived together and were accepted as man and wife raised a presumption that they were validly married … which is rebuttable only by clear and cogent evidence, and without suggesting that in a case like this the presumption arising from cohabitation would by itself suffice to prove a marriage it is another element to be taken into account in considering whether or not the circumstances as a whole do so.[2]
[2] Jacombe v Jacombe (1961) 105 CLR 355 at 359.
It is common ground that the parties participated in a religious wedding. There is no evidence suggesting that either party had any doubts as to the validity of the marriage before separation occurred in either 2021 or 2022. The parties had a child together and presented as a married couple to the rest of the world. That evidence gives rise to a clear presumption that the parties were validly married.
Clear and cogent evidence is required to rebut that presumption. The burden of doing so falls on the wife.
The wife raised the validity of the marriage for the first time in her affidavit filed on 13 April 2024. In her earlier material, she asserts that only the Country B Court can apply the terms of the Country B marriage act which she submits quite explicitly governs the terms of her marriage to the respondent. Further, in her affidavit filed on 13 April 2024, she refers to an application by her Country B lawyer to amend her petition to the Country B Court and annexes an affidavit which appears to argue that the marriage was valid despite the wife’s faith.
Neither party has adduced expert opinion evidence as to the validity of the marriage. The wife’s submissions as to its validity are rife with internal inconsistencies. They are not supported by any finding from the Country B Court.
The wife’s own evidence makes it clear that she considered the marriage to be valid from the time when it took place, during the period when she lived with the husband and at the point when she applied to the Country B Court for the restoration of conjugal rights. Her submission as to the invalidity of the marriage cannot be reconciled with her insistence that the Country B Court is the only court competent to deal with that application, any dissolution of the marriage and issues relating to a sum of money and financial matters.
I am not satisfied on the totality of the evidence that the presumption of validity of the marriage is rebutted. This aspect of the wife’s case fails.
Forum non conveniens: the law
There is no dispute in this case that both parties were Australian citizens at the time when the husband’s application for divorce was filed, a fact sufficient to invoke the jurisdiction of this Court.[3]
[3] Family Law Act 1975, s.39(3).
Once the jurisdiction of this Court has been properly invoked, it normally follows that that jurisdiction should be exercised. The Court has no discretion to refuse the making of an order where the grounds are made out:[4]
A court has a prima facie obligation to exercise its jurisdiction regularly invoked, and a party has a prima facie right to insist upon its exercise and to have their claim heard and determined.[5]
[4] In the Marriage of Falk (1977) FLC 90-247 at 76,337; RAF & MMF [2005] FamCA 497 at [50].
[5] Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90 (“Bakshi”) at [41], citing Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 241.
However, if I am satisfied that this court is a “clearly inappropriate forum” for these proceedings I must stay them.[6]
[6] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.
If I am persuaded that the Australian proceedings are oppressive, abusive or an abuse of process a stay will be appropriate. The High Court has held that the question I must consider is whether, having regard to the controversy as a whole, the Australian proceedings are “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging”.[7] If so, then they are vexatious or oppressive in the Voth[8] sense.
[7] Henry v Henry (1996) 185 CLR 571 at 591.
[8] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.
The mere existence of foreign proceedings is not in itself vexatious or oppressive.[9] I am not required strictly to compare the two forums to assess which is more appropriate; my task is rather to assess “whether there are enough factors indicating that the local forum is clearly inappropriate”.[10]
[9] Lan & Hao (No.2) [2017] FamCAFC 175 at [39].
[10] Bakshi at [51], citing Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491.
Consideration of the relevant issues in this case
I am satisfied that this Court has jurisdiction in relation to divorce proceedings.
There appears to be some question as to whether the Country B Court has jurisdiction under the Country B marriage act because the wife is not the same religion as the husband: as discussed earlier in these reasons that argument appears to have been raised first by the husband in the Country B proceedings. It may be that if the Country B marriage act is not the applicable legislation, the Country B Court can exercise its jurisdiction on an alternative basis. In the absence of a ruling from the Country B Court and/or any expert evidence from a Country B lawyer, I cannot make any findings in that regard but can only note that both parties appear at times to have questioned the extent and nature of the jurisdiction of the Country B Court.
The wife’s application in the Country B proceedings is for the restitution of conjugal rights rather than for divorce or any order which would terminate the marriage. On that basis, whilst the Australian and Country B proceedings relate to the same controversy, the nature of the order sought is very different. There is no reference in either of the wife’s applications to the Country B Court for orders in relation to property matters, the sum of money allegedly paid, to any “inheritance rights”, her education loan or the “periodic payments of loan given to the applicant’s property in [Country B]”. There is no evidence before me as to whether such applications can be made in the Country B proceedings within the context of an application for the restitution of conjugal rights.
Based on the evidence currently available, it appears that the Country B proceedings have a limited role. I am unable to be satisfied that they would or could comprehensively deal with divorce, property and parenting issues.
There is no evidence before me as to whether the Country B Court would recognise a divorce order from this Court. Indeed, there is no expert evidence of any kind to assist me in respect of the Country B proceedings.
What is clear is that there could be no enforcement in this jurisdiction of the order sought by the wife from the Country B Court; it has not been possible to bring an application for restitution of conjugal rights in Australia since the commencement of the Act.[11]
[11] Family Law Act 1975, s.8(2).
What is also clear is that the parties have lived in Australia since 2004, in the case of the wife, and 2016, in the case of the husband. The wife’s extended family lives in Australia. Both parties and the child of the marriage are Australian citizens and continue to reside in Australia. The primary asset of the relationship is the real property in New South Wales. Both parties speak English and are able to participate in proceedings in this jurisdiction in order to obtain orders which are enforceable in relation to both their child and their property.
Having considered the totality of the evidence before me, I am not persuaded to the requisite standard that Australia is a clearly inappropriate forum with regard to the husband’s application for divorce. That aspect of the wife’s case fails.
HAVE THE PARTIES BEEN SEPARATED FOR A CONTINUOUS PERIOD OF 12 MONTHS?
The parties agree that separation occurred in October 2021. The wife adduced no evidence of the parties behaving in a manner consistent with a marital relationship at any point thereafter.
It is common ground that separation occurred more than 12 months before the husband initiated these proceedings.
HAS THE MARRIAGE BROKEN DOWN IRRETRIEVABLY?
The husband says he has no intention of resuming the marriage relationship. It is equally clear from the wife’s affidavits in these proceedings and her application in the Country B proceedings that she does not wish the marriage to end.
An objective assessment of the evidence is required to decide whether the marriage has broken down irretrievably. It is sufficient for me to be satisfied that one party has no intention of resuming the marriage relationship. Here the husband has no such intention.
Accordingly, I am satisfied that the marriage has irretrievably broken down.
IS THERE A REASONABLE LIKELIHOOD OF RESUMPTION OF CO‑HABITATION?
The wife alleges in her affidavits that members of the husband’s family have contacted her and her relatives in order to canvass the possibility of a reconciliation. The husband said that he had been contacted by relatives in this regard. He said that until early 2023 he had indicated willingness to discuss reconciliation but that after filing his divorce application he told them that “it was not going to happen”.
He conceded that, as the wife alleges, his father sent a message to the wife’s aunt in early 2024 which referred to a possible reconciliation. He said that he did not know about this communication until he read the wife’s affidavit filed on 13 April 2024 and that he then contacted his father to tell him that he did not want to reconcile.
The wife’s evidence, taken at its highest, is that after the divorce application was issued, some communication continued between members of the parties’ extended families in relation to a possible reconciliation. She did not successfully challenge the husband’s evidence that he had taken no steps consistent with any desire to resume the marriage after the commencement of these proceedings.
Counsel for the husband submits that the husband’s actions, in applying for divorce in this Court and in contesting the wife’s application for the restitution of conjugal rights in the Country B proceedings, are wholly inconsistent with any intention on his part to reconcile. Indeed, given the vehemence with which the wife desires to resume the marriage, there is considerable force in his submission that had the husband wished to reconcile, a reconciliation would be likely to have taken place.
On that basis, I am not satisfied to the requisite standard that there is any or any reasonable likelihood of cohabitation being resumed.
ARRANGEMENTS FOR THE CHILD OF THE MARRIAGE
X lives with the mother in New South Wales. She does not at present spend time or communicate with the father. The father deposes to paying child support as assessed. The wife adduces no evidence that the arrangements for X are unsatisfactory save by way of generalised complaints about abandonment by the husband.
I am satisfied in terms of s.55A of the Act that proper arrangements in place for the care welfare and development of X.
CONCLUSION
I therefore grant an order for divorce, which will take effect in one month and one day from the date of these orders
I make orders as are set out.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burt. Associate:
Dated: 6 September 2024
0
11
3