Misra & Basu

Case [2024] FedCFamC2F 1231

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

  1. These are divorce proceedings instituted by the husband. The wife opposes the application.

  2. The primary disputes between the parties are the issues of validity of the Country B marriage and the question of forum.

    BACKGROUND

  3. The husband is 31 years old, and the wife is…

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AGLC
Misra & Basu [2024] FedCFamC2F 1231
Case
[2024] FedCFamC2F 1231
Decision Date

CaseChat Overview and Summary

Mr Misra brought a contested application for divorce against Ms Basu, with the Federal Circuit and Family Court of Australia considering the validity of their marriage, which was conducted in Country B. The central legal issues involved whether Australia was an appropriate forum to decide the matter and whether the marriage was valid. The court needed to assess if there were compelling reasons for Country B to be the more suitable jurisdiction, given that Ms Basu had already sought a restitution of conjugal rights there and unsuccessfully applied for an anti-suit injunction.

The court concluded that the presumption of the validity of the marriage was not rebutted and, therefore, the marriage was valid. It considered the nature of the proceedings in Country B, which primarily focused on the restitution of conjugal rights, and noted that both parties had significant connections to Australia. Given these factors, the court determined that Australia was not a clearly inappropriate forum. Consequently, the court found in favour of the applicant and granted a divorce order, set to take effect in late 2024. All other applications were dismissed.

In summary, the court granted the divorce application, dismissing all other proceedings. The form of the order is subject to the entry in the Court’s records and may be subject to review or variation as permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

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.

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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