Pathak & Hardikar
[2022] FedCFamC1A 163
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Pathak & Hardikar [2022] FedCFamC1A 163
Appeal from: Hardikar & Pathak [2022] FedCFamC2F 420 Appeal number(s): NAA 94 of 2022 File number(s): MLC 4898 of 2021 Judgment of: ALDRIDGE J Date of judgment: 11 October 2022 Catchwords: FAMILY LAW – APPEAL – DIVORCE – Appeal from a divorce order – Where the appellant challenged the making of the divorce order for a number of reasons – Where the appellant contends that Australia was an inappropriate forum to consider the marital arrangements of the parties – Where the parties were married in India – Where the appellant is an Indian citizen and the respondent is an Australian citizen – Where the appellant contends that the primary judge made errors of fact and errors of law – No error established – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) s 39
Dowry Prohibition Act 1961 (India)
Hindu Marriage Act 1955 (India)
Indian Penal Code 1860 (India)
Protection of Women from Domestic Violence Act 2005 (India)
Cases cited: Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Henry & Henry (1996) 185 CLR 571; [1996] HCA 51
House v The King (1936) 55 CLR 499; [1936] HCA 40
Navarro v Jurado (2010) 44 Fam LR 310; [2010] FamCAFC 210
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32
Talwar & Sarai (2018) FLC 93-855; [2018] FamCAFC 152
Todd and Todd (No. 2) (1976) FLC 90-008
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55
Number of paragraphs: 52 Date of hearing: 4 October 2022 Place: Sydney (via video link) The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 94 of 2022
MLC 4898 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PATHAK
Appellant
AND: MR HARDIKAR
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
11 october 2022
THE COURT ORDERS THAT:
1.The appeal is 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pathak & Hardikar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
Introduction
On 5 April 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) made a divorce order in proceedings between Ms Pathak (“the appellant”) and Mr Hardikar (“the respondent”) over the objection of the appellant, who challenged the making of the order on a number of basis, but principally because Australia was an inappropriate forum to consider the marital arrangements of the parties.
The parties were married in India in May 2018 pursuant to the Hindu Marriage Act 1955 (India) (“the Hindu Marriage Act”). A few days after the ceremony, the respondent returned to Australia. He then travelled to India for a wedding celebration which occurred on 29 January 2019. After a short honeymoon, the parties lived in Australia from 12 February 2019 to 14 September 2019. During this time the parties’ relationship deteriorated rapidly.
The appellant returned to India in September 2019 and has never returned to Australia.
On 3 May 2021, the respondent filed an application for divorce. Although the appellant disputed that service of the application had not properly been effected on her, she filed a Response to that application on 10 September 2021, filed affidavits in support and appeared at the hearing.
The Appeal
The parties appeared for themselves on the appeal, as they did before the primary judge.
The grounds of the Notice of Appeal are detailed and assert that his Honour made 20 errors of facts and six errors of law.
The appellant’s relatively brief Summary of Argument raised different matters to those raised in the grounds of appeal. I shall do my best to identify the points that were raised by her and deal with them as best as I can.
It has to be recognised however, that many of the appellant’s complaints and the response by the respondent were directed towards factual issues, the relevance of which was only to establish who was to blame for the breakdown of the relationship. That dispute is irrelevant to the appeal. Australia’s divorce system is not fault based and divorces may be granted where the parties have separated for a period of 12 months, regardless of the cause of that separation.
Errors of Fact
As I have said, I will not dwell on all the 20 asserted errors of fact, for the reason given earlier. There are two matters however that must be addressed, the outcome of which is capable of bearing upon the determination of these proceedings and which were stressed as being important by the appellant in her oral submissions.
At [22], his Honour found that on 29 July 2021, the appellant made a complaint to the Indian police alleging a number of contraventions of the Indian Penal Code 1860 (India), by the respondent. That is not entirely correct, because the appellant’s evidence was that she made the complaint to the police on 25 July 2021 and the police charged the respondent on 29 July 2021. The significance of this is that the appellant asserts, contrary to the finding of the primary judge, that she was the first to commence proceedings between the parties, and did so by making the complaint on 25 July 2021.
The appellant further submits that although the respondent filed the Application for Divorce on 3 May 2021, it had not been served on her at that time.
Emails of service were sent by the respondent on 14 May 2021 and 25 June 2021 to one of the appellant’s email addresses. On 26 July 2021, the respondent sent another email of service to a second email address of the appellant.
The primary judge took this matter into account as part of the consideration of whether the proceedings in Australia were or were not in a clearly inappropriate forum. One of the matters his Honour took into account, was the order in which proceedings were commenced. His Honour said:
54.The following observations may be made about the above. First, the [the respondent] has clearly wanted a divorce order since at least the time he first filed an application in this Court in September 2020. Secondly, [the appellant] was aware from at least 14 May 2021 that the [the respondent] had renewed his application for a divorce in this Court in Australia. Third, it took [the appellant] a further four months to file a petition for divorce in the Family Court of India during which time she did not engage with the [the respondent’s] application in this Court, even though she knew about it as it had been sent to her. Fourth, not only did [the appellant] institute divorce proceedings but instituted a number of other proceedings at or around that time as noted earlier. Fifth, notwithstanding her complaints about service and notwithstanding that she had known about the divorce application in this Court since 14 May 2021, the [the appellant] only filed her first Response in this Court on 10 September 2021. She did so only after she had commenced a number of proceedings in India.
First, it is plain from this paragraph that his Honour did not accept the appellant’s evidence that she did not receive the emails of 14 May 2021 and the 25 June 2021. Accordingly, it is more likely than not that the appellant was aware of the divorce application in Australia at the time that she made the complaint to the police.
Secondly, his Honour contrasted the complaint to the police, which resulted in criminal charges, albeit with a marital context to them, with the nature of a divorce application, which the appellant brought separately in India some four months later on 7 September 2021. Her divorce application could not have been heard in the criminal proceedings.
Thus, to the extent that the primary judge made an error, it was entirely immaterial to the outcome.
The other point emphasised by the appellant was that the primary judge did in fact have the relevant sections of the Hindu Marriage Act before him, so that it was not correct for his Honour to find that the appellant had not provided it. That however, does not take into account the precise finding of his Honour, which was:
46.[The appellant] has not placed before the Court any of the statutes or laws of India on which the Indian causes of action are based. [The appellant] did place before the Court three pages from the Hindu Marriage Act comprising the cover page, an index page on the first page of the statute. Plainly the full statute is not in evidence before me. It would have been open for me to accept the full statute into evidence, other Indian statutes and related evidence about the law of India pursuant to section 174 and 175 of the Evidence Act 1995. Regrettably, I do not have such evidence before me. I note the caution in Talwar that a judge ought not conduct his or her own research into a foreign law after the hearing has finished (at [44]), and I decline to do so in this case. I also note the further observation in Talwar that a party seeking to rely on a foreign law bears the onus of proving it and that in the absence of expert evidence, the Court should proceed cautiously (at [46]).
Such an observation is entirely consistent with the principles identified in Talwar & Sarai (2018) FLC 93-855 (“Talwar”) at [19]–[27].
In short, it can be inferred that the very limited material placed before the primary judge (which was apparently just one page from the text of the statute) was too meagre to provide any assistance to him. His Honour noted the lack of any expert evidence before him, which led to the finding that there was no evidence as to whether or not a court in India would recognise the divorce order if it was to be made in Australia. However, the primary judge did proceed on the basis that the appellant had at least an arguable basis for obtaining a divorce under the Hindu Marriage Act in India.
It follows from the above that his Honour was not in error as was asserted by the appellant.
Errors of Law
His Honour posed the principle question before him as:
45.If the Court is satisfied that Australia is a clearly inappropriate forum in which to determine the proceedings, the Court must stay the proceeding before it …
In doing so, his Honour correctly referred to Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247–248; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564; Henry & Henry (1996) 185 CLR 571 (“Henry”); Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90 (“Bakshi & Mahanta (No 2)”) and Talwar. Reference should also be made to Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90 (“Bakshi & Mahanta (No 2)”). His Honour considered that question by the reference to the following seven matters, drawn from Henry:
·Whether each court will recognise a divorce order made by the other;
·Which forum can provide more effectively for the complete resolution of the parties’ matter;
·The order in which the proceedings were instituted and their current status;
·The connection of the parties and their marriage with each jurisdiction;
·The issues on which relief may depend on in these jurisdictions;
·Where the parties are able to participate in the respective jurisdictions on equal footing;
·The issues which relief might depend upon in each of the jurisdictions; and
·Are the proceedings sufficiently “oppressive and vexatious” to the appellant to justify a stay.
The first error asserted by the appellant was that the above questions did not arise because Australian courts do not have jurisdiction to grant a divorce, asserting that because the marriage was solomised and registered in India, it is governed by Indian law and the proceedings are governed only by the Hindu Marriage Act.
As his Honour correctly pointed out, at [41]–[42], the respondent is a citizen of Australia ordinarily domiciled in Australia and therefore the Court has jurisdiction to make and enforce a divorce order pursuant to s 39(3) of the Family Law Act 1975 (Cth).
The appellant then submitted that the Indian forum was the more appropriate forum in which to conduct the litigation and that the primary judge erred by failing to “undertake a comparative evaluation of the merits and demerits of litigation in the local and foreign forums” (Ground 3).
However, the law in Australia no longer proceeds on the basis that the task is for the court to determine which forum would be the better to resolve the parties’ differences, but rather whether or not Australia is a clearly inappropriate forum (Bakshi & Mahanta (No 2) at [51])
As I have said, the primary judge clearly approached this matter in the correct way.
The appellant submitted that because she had instituted four proceedings against the respondent in India because a warrant for his arrest has been issued, the appellant would only get complete justice in the criminal and civil cases in India and therefore Australia is a clearly inappropriate forum to hear the divorce petition.
The primary judge described the proceedings in India as follows:
44.[The appellant] says she has commenced the following proceedings against [the respondent] in India:
(a)a police complaint which has led to the police registering a criminal case against [the respondent] under section 498A, 323 and 34 of the Indian Penal Code. The complaint was made on 25 July 2021. The Court has a copy of the complaint [the appellant] made to police. It appears that charges against [the respondent] may arise not only under the sections of the Indian Penal Code noted above, but also under the Dowry Prohibition Act 1961 (India) (‘Dowry Prohibition Act’). [The appellant] says this case relates to demands by [the respondent] and his family for dowry from her and her family. A part of a record of proceedings before the Indian courts is before this Court and it appears that the case progressed through that Court on 24 - 25 February 2022. It also appears that an arrest warrant was issued by the Court for [the respondent]. It appears that [the respondent] was represented by legal counsel at the hearing and that his parents were present. The case is to be heard again on 24 May 2022. The Court does not have a copy of the charge sheet in the matter. It is not known when the case will be finalised.
(b)a divorce proceeding under section 13(1)(a) of the Hindu Marriage Act. The Court has before it the petition filed by [the appellant] for divorce in India and supporting documentation. The proceeding was instituted on 7 September 2021. Divorce is sought on the ground of ‘cruelty’. A summons appears to have been issued to [the respondent] on 16 September 2021 directing him to appear at the court on 20 December 2021. It is common ground [the respondent] did not appear on that date, and that [the respondent] has not participated at all in the proceeding. [The appellant] says the matter will return to the Family Court in India on 11 April 2022 and that if [the respondent] does not appear, the divorce order may be granted in his absence.
(c)a proceeding seeking maintenance from [the respondent]. [The appellant] says this proceeding was instituted about the same time as the divorce proceeding. The proceeding is in the Family Court of India and is brought under ‘section 125 of the Criminal Procedure Court of India’. That court has apparently issued a summons for [the respondent] to appear in that matter on 11 April 2022. This Court does not have any documents before it in relation to this proceeding. [The respondent] had only recently been notified of this proceeding. He indicated before me he did not intend to participate in this proceeding or any other civil proceeding in India.
(d)a proceeding alleging domestic violence against [the respondent] under the Protection of Women from Domestic Violence Act 2005 (India) which is pending at the Court of Judicial Magistrate First Class in City F. [The appellant] says the case was instituted before October 2021 and probably around September 2021. A summons appears to have been issued to [the respondent] on 24 November 2021 directing him to appear at the Court on 8 January 2022. It is common ground he did not appear on that date. The case was to return to the Court on 24 March 2022, the day after the hearing of this matter. This Court does not have before it any of the initiating documents from this proceeding. It seems common ground that [the respondent] has appeared in this matter through his representatives.
30His Honour took those findings into account in the following way:
50.As noted above, [the appellant] has filed a range of proceedings in India. Those proceedings raise matters outside of, or in addition to, seeking an order for divorce. Given the lack of evidence before me, I am unable to make any finding as to whether the proceedings commenced by [the appellant] in India are capable of being resolved in Australia. The position therefore is that complete relief in respect of all claims appears to be available in India, whereas only the divorce proceeding (and potentially the maintenance proceeding) are capable of resolution in Australia.
51.While not the principal issue in respect of this criteria, I note for completeness, that [the appellant] filed extensive material in this proceeding and also addressed the Court orally. Nothing in the material she filed or the submissions she made provides any indication that [the appellant] will be prevented from continuing the proceedings (being the divorce proceeding in India and the other proceeding she has commenced in India) if a divorce order is granted by this Court.
The primary judge therefore accepted the premise of the appellant’s submissions, which was that complete relief in respect to all claims appears only to be available in India.
Even without going into the detail of the specific sections, it has to be said that it seems unlikely that proceedings under the Dowry Prohibition Act 1961 (India) and the Protection of Women from Domestic Violence Act 2005 (India) are able to be maintained in Australia.
Therefore, his Honour took into account, as part of his overall determination, this matter as something weighing in favour of Australia being found to be a clearly inappropriate forum. The difficulty for the appellant is that his Honour then weighed that against the other considerations and was not satisfied, after having taken all of them into account, that Australia was a clearly inappropriate forum.
There was no evidence that the appellant would not be able to maintain these proceedings if the divorce was granted in Australia.
His Honour’s decision was discretionary and as such the principles identified in House v The King (1936) 55 CLR 499 at 504–505 apply. His Honour did not err simply because he gave one matter to be taken into account less weight than the appellant considered it should. See also, Gronow v Gronow (1979) 144 CLR 513, as to the difficulty of challenging findings of weight to be given particular considerations.
The next submission was that the primary did not apply the law as set down in Talwar and Navarro v Jurado (2010) 44 Fam LR 310 (“Navarro”). The real complaint of the appellant is that she did not obtain the same outcome as occurred in those cases. That is because the circumstances in them were different.
As to the first case, his Honour clearly applied the principles set out in it. However, the real complaint is that in Talwar, the Full Court found that the trial judge’s determination that Australia was not a clearly inappropriate forum was erroneously made and that the matter would need to be remitted for rehearing and the same should have occurred in this matter. Of particular significance in that case, was that the trial judge did not take into account the fact that the court in India had issued an anti-suit injunction against the respondent restraining him from commencing divorce proceedings in Australia. That is not the case here.
In Navarro, the facts were again different, in particular, although it was not the sole consideration in support of the finding that Australia was a clearly inappropriate forum, the appellant clearly commenced divorce proceedings in Costa Rica well before the respondent commenced his proceedings in Australia.
In short, applications of this kind are determined on the circumstances applicable to each particular case and assistance is not gained by the application of principles in different cases where the circumstances are different.
His Honour did not err by failing to follow the outcomes in Talwar and Navarro as his Honour correctly identified the principles to be taken into account and the circumstances applicable to each and weighed them in the balance.
The challenge to the primary judge’s finding that the appellant had failed to demonstrate that Australia was a clearly inappropriate forum does not succeed.
Were the parties separated for 12 months?
Finally, the appellant submitted that a divorce order should not have been made because, contrary to the respondent’s contention that the parties separated on 14 September 2019, they in fact separated in November 2020.
The primary judge set out the parties’ competing positions at [71]–[74].
His Honour did not accept the appellant’s evidence because he considered that it was not convincing, was inconsistent and was not corroborated by the production of any text messages, emails or WhatsApp messages.
On the other hand, his Honour found that the relevant WhatsApp messages sent between the parties during 2020 confirmed that the parties had separated because they discussed, amongst other things, the possibility of attempting to reconcile and the respondent said that “he [did] not have it in him to try to fix the relationship any longer” (at [79]).
Finally, his Honour found that the WhatsApp messages on which the appellant did rely, did not disclose any intention of the parties to live together, nor purchase a house together. All of the above can be found [76]–[81].
His Honour then went on to consider the respondent’s evidence that separation occurred on 14 September 2019 at [83]–[88], some of which supported the respondent’s contentions and some did not. His Honour’s findings were:
88.There is also evidence before the Court, which is largely not in dispute, that the parties attempted to resolve their differences after 14 September 2019. It is difficult to know what to make of that evidence. The following observations can be made however. First, while there were attempts at reconciliation, it seems none were successful. Second, any attempt at reconciliation did not result in [the respondent] and [the appellant] residing together again. Third, the fact that reconciliation was attempted may be taken to suggest that the marriage had broken down and separation had taken place.
89.There are, of course, other matters that suggest separation occurred on or shortly after 14 September 2019. The parties were physically separated. [The respondent] ceased financially supporting [the appellant]. [The appellant] ceased undertaking household and domestic chores. The parties ceased engaging in sexual relations. In the overall scheme of things, while I give these factors some weight, I give them less weight in this case than in other cases. They were not in existence when the parties were married but living apart in the period May 2018 to February 2019.
90.In my view, separation most likely occurred on 14 September 2019 when [the respondent] told [the appellant] that the marriage was over. If I am wrong about that, however, separation effectively occurred in October/November 2019 when [the appellant] elected not to return to Australia, elected to visit the United States and came to the realisation that she could not return to [the respondent].
In her submissions, the appellant relied upon the following well-known statement of Watson J in Todd and Todd (No. 2) (1976) FLC 90-008 at 75,079:
To prove that a marriage has irretrievably broken down the following elements are required —
a) separation of the spouses; and
b) thereafter a continuous living separately and apart for at least 12 months immediately preceding the application for dissolution.
Separation may occur notwithstanding that cohabitation was brought to an end by the action or conduct of only one spouse (sec. 49(1)). The above elements may exist notwithstanding residence under the same roof and the inter-spousal rendering of some household services (sec. 49(2)). The court shall not grant a decree if it is satisfied that there is a reasonable likelihood of cohabitation being resumed.
Three concepts require examination — (a) separation, (b) living separately and apart, and (c) resumption of cohabitation. In my view “separation” means more than physical separation — it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage — elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships
Thus the position is somewhat more complicated than asserted by the appellant – there does not necessarily need to be a communicated intention from one spouse to the other that the marriage is over.
Here, the primary judge found it was more probable than not that the respondent told the appellant that the marriage was over and did so on 14 September 2019. In other words, the primary judge acted entirely as the appellant asserted he should have, but simply, did not accept her evidence as to what occurred on that date.
Alternatively, his Honour found that separation occurred shortly thereafter when the appellant elected not to return to Australia and it can be inferred that each spouse had formed the intention not to resume the relationship.
There has been no misapplication of principle and this ground does not succeed.
Conclusion
It follows that the appeal will be dismissed.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 11 October 2022
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