Price and Price
[2013] FCCA 1372
•27 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRICE & PRICE | [2013] FCCA 1372 |
| Catchwords: FAMILY LAW – Divorce – application for divorce – application contested – application for restitution of conjugal rights in India – consideration and application of ‘clearly inappropriate forum’ test – consideration and application of s.44 of the Family Law Act 1975 – consideration of whether ‘special circumstances’ exist – divorce order granted. |
| Legislation: Family Violence Protection Act 2008 |
| Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 Gatto & Norton [2012] FMCAfam 1175 Henry v Henry (1996) 185 CLR 571 In the Marriage of Philippe (1977) 20 ALR 381 In the Marriage of Malyszko (1979) 35 FLR 186 Jess v Scott (1986) 70 ALR 185 Navarro & Jurado [2010] FamCAFC 210 Sankil & Sankil [2008] FamCAFC 205 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
| Applicant: | MR PRICE |
| Respondent: | MS PRICE |
| File Number: | MLC 1388 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 21 August 2013 |
| Date of Last Submission: | 21 August 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 27 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Chislett |
| Solicitors for the Applicant: | Fernandez & Johnson |
| Counsel for the Respondent: | Ms Swann |
| Solicitors for the Respondent: | Saundh, Singh & Smith Lawyers |
ORDERS
A divorce order be made, such divorce order to take effect and thereby terminate the marriage on 28 October 2013.
IT IS NOTED that publication of this judgment under the pseudonym Price & Price is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1388 of 2013
| MR PRICE |
Applicant
And
| MS PRICE |
Respondent
REASONS FOR JUDGMENT
On 26 February 2013, the Husband MR PRICE (“the Husband”) filed an Application for Divorce in the Federal Magistrates Court (as it was then). On 5 April 2013, the Wife MS PRICE (“the Wife”) filed a Response to Divorce contesting the Application on three grounds:
·Jurisdiction – the Wife had instituted proceedings in India under s.9 of the Hindu Marriage Act 1955 (the “Hindu Marriage Act”) for Restitution of Conjugal Rights;
·Date of separation - the Wife contended that the date of separation was in mid-October 2012, not 21 February 2012 as contended by the Husband; and
·Non-compliance with s.44 of the Family Law Act 1975 (Cth) (“the Act”).
Background
The Husband was born in India [in] 1985. The Wife was born in India [in] 1987. The Husband arrived in Australia on a student visa in January 2007. Apart from visits to India to see his family, the Husband had resided in Australia since that time. The Husband is currently on a temporary working visa sponsored by his employer. The Husband has applied for permanent residence.
The Husband stated that since January 2010, his parents had been pestering him to get married. When the Husband was in India in
March 2011, his family introduced him to the Wife. Both families were keen for them to marry and the parties were married on [omitted] March 2011, 18 days after they met. The Husband returned to Australia on 9 April 2011.
The parties were in contact by telephone between then and 10 August 2011 when the Wife arrived in Australia on a dependent spouse visa. The Husband says that they were constantly arguing and the Wife threatened to harm herself. The Wife told the Husband she was pregnant but when they completed medicals on 19 October 2011 for permanent residence, the Husband found out that this was not the case. The parties argued about this.
On 20 December 2011, the Wife returned to India. The Husband travelled to India on 23 January 2012 to attend a friend’s wedding and to undertake a ‘cultural wedding’ with the Wife on 9 February 2012. The Husband states that during this time, the parties had a serious argument about money which involved both of their parents, at the end of which the Wife returned to her parent’s house. At this point,
the Husband says he regarded the marriage as being over. He travelled back to Australia with his friend MR R (“Mr R”) with whom he was sharing a flat, and ceased contact with the Wife.
On 21 February 2012, the Husband says he wrote to the Department of Immigration and Citizenship (“the Department”) requesting that the Wife be removed as a dependent from his application for permanent residency. The Wife questions the veracity of this document and also the letter from the Department to the Husband on 28 April 2012 which states “On 21 February 2012 you provided a letter to withdraw your wife from the application however I note that she is onshore.
Please advise if you wish to maintain this position”.[1][1] Affidavit of Mr Price filed on 30 April 2013, at Annexure VP-2.
The Wife travelled to Australia on 25 February 2012. The Husband says she came to the house and he told her that the marriage was over. The Wife then went to live with relatives but was constantly calling the Husband so he changed his phone number. The Wife came to the Husband’s house with her relatives in May or June 2012 and he told her to stop harassing him as the marriage was over. The Husband then ceased all contact with the Wife.
On 14 May 2012, the Husband’s solicitors wrote to the Department in the following terms:
We…confirm that Mr Price attended our office on
14 May 2012 for the purpose of obtaining family law advice in relation to his marriage to Ms Price. The parties have been separated since 21 February 2012 and our client intends to obtain a divorce in February 2013. The parties regard the relationship as having irretrievably broken down and for that reason our client intends to remove his wife from his
Permanent Employer Sponsored Entry visa application.[2]
[2] Ibid, at Annexure VP-3.
The Wife says that when she arrived in Melbourne, the Husband was living in a shared house with other single males. The Husband told her that the accommodation was not suitable for a married couple and asked her to stay with friends of her family on a temporary basis. It was only in mid-October 2012 that the Wife realised that the Husband’s intentions were different. At that time, the Wife consulted her parents and filed an application for Restitution of Conjugal Rights in the Court at Anand, Gujarat in India.
The Wife also says that she was pregnant in 2011 but the Husband forced her to take pills to terminate the pregnancy. The Husband says that the Wife told him she was pregnant but this was untrue.
The application for Reinstitution of Conjugal Rights was filed by the Wife’s father on her behalf, because the Wife was living in Australia at the time, in November 2012. In the application, the Wife states:
The Applicant further submits that after reaching Australia she went to opponents’ house but Opponent did not allow her to stay with him and refused that he will not allow Applicant stay with him. The Applicant kept on trying to call Opponent on his mobile phone frequently as she was staying with her relatives in Australia and then again on 10/3/2012, 9/5/2012 and 10/6/2012 Applicant went to the Opponents’ house to stay with him but each time the Opponent did not allow the Applicant to stay with him…[3]
[3] Application for Restitution Rights of Ms Price filed at [omitted], India and dated 13 November 2012, at para.11.
In March 2013, the Wife lodged an Application for an
Intervention Order under the Family Violence Protection Act 2008
(the “Family Violence Protection Act”). The Wife alleged that after being served with the Application for Divorce, she contacted the Husband: “The Respondent threatened that if I raise any objection to the divorce he will physically harm me”.[4][4] Affidavit of Mr Price filed on 30 April 2013, at Annexure VP-4.
The Application was heard by Magistrate Hawkins on 16 April 2013 and an Intervention Order was refused. During the course of the proceedings, the following exchange occurred between Magistrate Hawkins, Mr Singh (representing the Wife) and the Wife:
HER HONOUR: Sorry, what’s an Application for conjugal rights in India? Can somebody explain that.
MR SINGH: Yes, I can explain that. The Application is moved by one or the other spouse to force the other party to resume the matrimonial relationship, so it’s totally opposite to the divorce, so at first it is that the families shouldn’t be denied, and get together.
HER HONOUR: So, the Application in India is to force the couple to come back together?
MR SINGH: Yes, under the directions of the court, yes.
HER HONOUR: Okay, well, that’s completely inconsistent with this Application, which is to force the parties to be apart.
MS PRICE: The judges taking the decision if the other party responds. If the other party doesn’t respond then it goes in my favour. [Direct:] It’s not forced.
HER HONOUR: So, if you are taking an Application in India do you want the marriage to be - - do you want to be with him?
MS PRICE: Yes, I don’t want to be free of the marriage.
HER HONOUR: This Application, this Application is I don’t want to be with him, I don’t want anything to do with him, I’m scared of him.
MS PRICE: [Director] Yes, I’m scared - -
HER HONOUR: Can I finish?
MS PRICE: [Indistinct] then I wish to stay with him, but from November. After that he threatened me.
MR SINGH: That Application was moved last year in November 2012, and this incident which happened, that is of March, so there is a time gap between things - -
HER HONOUR: Let me ask you a question: do you want to continue your marriage - - ?
MS PRICE: [Direct] No, no - - [5]
[5] Affidavit of Mr P filed on 16 August 2013, Annexure [Mr P]-1, at p.13.
In his oral evidence, the Husband maintained that he had told the Wife the marriage was over when she arrived in Australia on
24 February 2012. The Husband agreed that his lawyer in India had been served with the Wife’s Application seeking a restitution of conjugal rights and that this occurred prior to him lodging his Application for Divorce. The Husband agreed that he had applied through his lawyers for an adjournment of those proceedings.
The Husband did not agree that there was a social stigma attached to being a divorced woman in India. He never asked the Wife to go to counselling. The Husband suggested that the Wife had used the institution of proceedings in India as a form of blackmail.
[6] Transcript of Proceedings, 21 August 2013, p.12 at lines 10 – 11.
The Wife’s evidence was that the proceedings in India had
“maybe six to seven hearing” [6]and for the first three or four hearings, there was no appearance for the Husband. After that, the Husband’s lawyer notified the Court of the proceedings in Australia and that they were awaiting the outcome.
The Wife maintained that the Husband had not directly told her that the marriage was over although he would not let her stay with him. The Wife stated that she wanted to stay in Australia.
Is the Australian Court a clearly inappropriate forum?
The Wife contends that the Australian Court is a clearly inappropriate forum for matrimonial matters between the parties to be determined. Neither party is an Australian citizen nor a permanent resident.
The parties were married in India according to the provisions of the
Hindu Marriage Act.
The Wife accepts that the proceedings instituted in India are not the same as the proceedings issued by the Husband in Australia but contends that they both arise out of the parties’ marital relationship. The Wife relies on the following passage from Henry v Henry (1996) 185 CLR 571:
If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy.[7]
[7] (1996) 185 CLR 571 at 591.
The test is that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that Court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”[8] or vexatious, in the sense of “productive of serious and unjustified trouble and harassment”.[9]
[8] See Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 555.
[9] Ibid.
The Wife claims that the Australian Courts will not recognise orders made by Indian Courts under the Hindu Marriage Act, however the issue of a divorce order in Australia may prejudice the Wife’s rights in India, including rights which are not available in Australia. The Wife’s proceedings were instituted in India and served on the Husband before he applied for a divorce in Australia. The Wife and her family have incurred costs in those proceedings.
The parties are both foreign citizens. They were married in India. To the Wife’s knowledge, neither of them own significant property in Australia. They both have families in India. Socially and legally, the Wife will be disadvantaged in India by being divorced in Australia.
The parties are each able to participate in the proceedings on an equal footing in both jurisdictions. The Wife has given her father Power of Attorney and the Husband can do likewise. He is represented by a lawyer.
There are no parenting or property issues in dispute between the parties in Australia. Once the Wife’s proceedings in India are finalised, the Husband would be at liberty to pursue his divorce Application in Australia, regardless of the outcome.
The Wife cited the cases of Navarro & Jurado [2010] FamCAFC 210 and Sankil & Sankil [2008] FamCAFC 205 in support of her submission.
The Husband submits that he has been in Australia since 2007 and has applied for permanent residence. On the Wife’s evidence, she intends to stay in Australia. The Australian Court is clearly the appropriate forum. The Husband cited the case of Gatto & Norton [2012] FMCAfam 1175 in support of his submission.
Conclusions
In Henry v Henry,[10] the Husband was an Australian citizen and the Wife a German national. They were married in Germany in 1977 and moved to Monaco some 10 or 11 years later. At the time of the proceedings, the Wife was still living in Monaco where she instituted divorce proceedings in December 1992. The Husband left Monaco in late February 1993. He arrived in Australia on 8 October 1993 and commenced divorce proceedings on 10 November 1993. The Husband had money in bank accounts in Monaco, New York and Switzerland, business interests in Europe, the United States and Asia and property interests in the United States and Cayman Islands. The parties spent no part of their married life in Australia.
[10] (1996) 185 CLR 571.
The Court accepted that the Husband was domiciled in Australia because he had surrendered his Monegasque residence card and intended to make his home indefinitely in Australia. There was no material to indicate if an Australian divorce would be recognised in Monaco or whether orders made by an Australian Court with respect to property would be recognised. It was clear that a divorce granted in Monaco would be recognised in Australia.
The joint judgment of Dawson, Gaudron, McHugh and Gummow JJ, after discussing the general principles derived from Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, went on to say:
Proceedings between husband and wife with respect to the marital relationship
If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.
Although the appellant first brought proceedings against the respondent in Monaco for judicial separation and, only later, commenced proceedings for divorce, both proceedings were, in essence, proceedings with respect to their marital relationship. Clearly, it was the same marital relationship which was the subject of the divorce proceedings brought in Australia by the respondent. And although it may not be quite so clear, the property proceedings instituted by the respondent in the Family Court are but an aspect of his controversy with the appellant as to their marital relationship. It may have been otherwise if they were no longer married, but so long as their marriage subsists, their dispute with respect to property is a dispute as to the rights and obligations arising out of their marital relationship and those which should attend its dissolution. As such, it is properly to be seen as part of the controversy with respect to that relationship.
Considerations relevant to a stay of proceedings between husband and wife with respect to their marital relationship
Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue (emphasis added). However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider 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. The list is not exhaustive. Rather, 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.[11]
[11] (1996) 185 CLR 571 at 591- 593.
Brennan CJ in a separate judgment set out the test as follows:
It follows that, before proceedings instituted under s 39(3) of the Family LawAct are stayed, two conditions must be satisfied: first, that the Family Court is a clearly inappropriate forum in which to determine proceedings for a decree of dissolution of the marriage in question; secondly, that there is some forum in another country which has and can exercise jurisdiction in proceedings for a decree of dissolution of marriage.[12]
[12] Ibid, at 578.
Brennan CJ gave emphasis to the fact that the parties in the proceedings were not married in Australia, had never lived in Australia as Husband and Wife and there was no connection between the marriage of the parties and Australia. Brennan CJ placed no emphasis on which proceeding was first commenced.
The parties referred to three cases where Henry v Henry[13] has been applied. In Navarro & Jurado,[14] the Husband applied for a divorce in Australia a few months after the Wife had filed for divorce in
Costa Rica. It was clear that both the Husband and Wife wanted a divorce. It was common ground that a divorce granted in Costa Rica would be recognised in Australia.[13] Ibid.
[14] [2010] FamCAFC 210.
The Wife had been born in Costa Rica and the Husband in Colombia. They married in Costa Rica in 1997 and the one child of the marriage was born there in 1998. In 1999, the parties moved to Australia where the Husband had lived ever since. The Wife spent time in both Australia and Costa Rica but in July 2005, she returned to Costa Rica with the child and remained there. In March 2007, the Husband advised the Wife that he intended to file for divorce in Australia. On 2 May 2007, the Wife filed an application for divorce in Costa Rica.
Federal Magistrate Jarrett (as he was then), upheld by the majority of the Full Court, found that the issues of property and parenting would be determined in Costa Rica and that only one of the parties had any ongoing connection with Australia. His Honour found that to grant the divorce in Australia would prejudice the Wife in her proceedings and that there was some doubt that the Australian decree would be recognised in Costa Rica.
In Sankil & Sankil,[15] the Husband and Wife had both been born in India but had both become Swedish citizens. The Husband filed an Application for Divorce and parenting orders on 11 March 2005.
The Wife and children of the marriage were in India. The Wife had commenced divorce proceedings in India and the Husband had initiated proceedings challenging the jurisdiction of the Indian Court to grant judicial separation and divorce and to entertain custody and maintenance proceedings. The Husband had not been resident in Australia for one year immediately before the filing of his Application and was not an Australian citizen.[15] [2008] FamCAFC 205.
The Full Court found that the trial Judge had erred in granting a permanent stay in the Australian proceedings. However, given that proceedings remained on foot in the Indian Courts to determine the jurisdiction of that Court with respect to divorce and proceedings relating to the children of the marriage, a temporary stay was granted.
In Gatto & Norton,[16] the Husband and Wife were both born in India. The Husband commenced living permanently in Australia in 2006. The parties were married in India in 2007 and the Wife moved to Australia in February 2008. The Wife returned to India for the birth of the child and returned to Australia with the child in February 2009. The parties initially separated in December 2009 and separated on a final basis in November 2010. On 21 December 2011, final parenting and property orders were made by consent.
[16] [2012] FMCAfam 1175.
On 22 February 2012, the Husband became an Australian citizen.
The Husband filed an Application for Divorce on 27 April 2012.
In opposing the divorce, the Wife raised a concern that the divorce in Australia would not be accepted in India under the Hindu Marriage Act and would disadvantage her if she wished to remarry. There were no divorce proceedings on foot in India.The Court gave weight to the fact that the parties had chosen to live permanently in Australia and had chosen to submit to the jurisdiction of the Australian Court with respect to property and parenting proceedings.
The facts in each of those cases are different to the circumstances before the Court in this case. The Husband is both resident and domiciled in Australia and he clearly intends to remain here.
The Husband has applied for permanent residence. The Wife has been permanently in Australia since 24 February 2012 and gave evidence that she wanted to remain here.While the proceedings instituted by the Wife, or more accurately by her father on her behalf, may be said to arise out of the marital relationship, they are not proceedings for dissolution of the marriage, but for the restitution of conjugal rights. Any order made by an Indian Court in such proceedings would not be enforceable in Australia.
There is further a contradiction between the proceedings instituted by the Wife in India and the Intervention Order Application she made in the Magistrates Court in Australia. As her Honour Magistrate Hawkins noted, the Application in the Indian Court was completely inconsistent with the Application made under the Family Violence Protection Act.
The Wife has adduced no evidence in support of her claim that she would be socially and legally disadvantaged by the Husband’s Application proceeding; she has merely asserted this to be the case.
While the Wife’s application was first in time, I give this little weight in all the circumstances given that the Husband could not institute proceedings before February 2013 and the Wife’s proceedings were instituted in India while she was in Australia.
The parties are both Indian citizens and were married in that country. For most of the marriage, the Husband was in Australia and the Wife chose to remain here after the marriage broke down. While the parties have the capacity to conduct the proceedings via third parties in India, they are both present in Australia and legally represented here.
It is for the Wife to satisfy the Court that this Court is clearly the inappropriate forum for the proceedings and I am not satisfied that in all the circumstances of the case, “taking into account the true nature and full extent of the issues involved”,[17] that this Court is clearly the inappropriate forum and that a stay of proceedings should be granted.
[17] Henry v Henry (1996) 185 CLR 571 at 593.
The date of separation
The Husband’s evidence was that the parties separated when he returned to Australia on 21 February 2012. The Wife contends that the separation occurred sometime in October 2012, although she does not contend that they lived together at any time after her arrival on
24 February 2012.I have considered the evidence of both the Husband and the Wife in this matter and the statement made by the Wife in support of her application in India for Restitution of Conjugal Rights. I do not accept the Wife’s evidence as to what occurred on 24 February 2012, when she arrived in Australia. I am satisfied that the Husband made it clear to the Wife that he did not want to live with her and the marriage, so far as he was concerned, was over.
I am satisfied that the parties separated at the latest on
24 February 2012 when the Husband, to use the Wife’s own words, refused to allow the Wife to stay with him.
Section 44(1C) of the Family Law Act 1975 (Cth)
The parties were married on [omitted] March 2011. The Application for Divorce was lodged on 26 February 2013. The parties were therefore not married for a period of two years at the time of the Application.
It is clear that there was no attempt to consider reconciliation with the assistance of a counselor and therefore no certificate was filed in accordance with s.44(1B) of the Act.The Court may grant leave to proceed with the application if there are special circumstances which satisfy the Court that a divorce order should be granted notwithstanding that the parties have not considered reconciliation.
The term ‘special circumstances’ or ‘special reasons’ is one frequently used in statute. In Jess v Scott (1986) 70 ALR 185, the Court considered a number of cases where the expression ‘special circumstances’ or ‘special reasons’ was used and concluded that the expression was intended to distinguish the case from the usual course. A ground is a special reason because it takes the case out of the ordinary.
In Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531, French J (as he then was) referred to a number of authorities and concluded at [18] that:
[18] The word "special" conditioning "reasons" or "circumstances" guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. A Full Court has spoken of it as having content which is " ... sufficiently understood not to require judicial gloss": Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context. Thus man may be "special" in relation to animals generally but " ... when you are speaking of poets, he may need to be a Milton": Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578; 103 ALR 684 at 686 per Burchett 1. It is an elastic instruction suitable for application across a range of situations: Jess v Scott (1986) 12 FCR 187; 70 ALR 185. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules: Beadle at 228. Circumstances or reasons will not necessarily fall outside the designation of "special" because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise: Hutchins; larlas Pty Ltd v Commissioner of Taxation (Cth) (1987) 14 FCR 510 at 527; 74 ALR 455 at 473. The core of the requirement for "special circumstances" or "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo (1988) 8 AAR 245 at 261-262; 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992)37 FCR 32; 108 ALR 322. In Beadle the Full Court, having concluded that the term "special" was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director General of Social Security.[18]
[18] (1999) 90 FCR 531 at [18]
The Wife drew the Court’s attention to two judgments of single Judges of the Family Court in support of a submission that ‘special circumstances’ did not exist in this case.
In In the Marriage ofPhilippe (1977) 20 ALR 381, the Wife argued that:
·the fact that she had sought a reconciliation with the Husband but was rejected because he was living with another woman; and
·the fact that parties had been married for more than two years by the time of the hearing,
were ‘special circumstances’. Connor J, of the Family Court of
Western Australia, disagreed. He found that special circumstances meant “facts peculiar to the particular case which set it apart from other cases”.[19] He considered that, “Facts viewed separately may each be insufficient but viewed collectively or with some other facts can amount to special circumstances”.[20][19] (1977) 20 ALR 381 at 383.
[20] Ibid.
In In the Marriage of Malyszko (1979) 35 FLR 186, Ellis J agreed with the conclusion of Connor J both with respect to the test and to the observation that a factor, which standing alone, would be insufficient may have an altogether different value when found in combination with some other factor or factors.
It appears to me that the purpose of s.44(1B) of the Act is to ensure that parties do not make hasty decisions about dissolving a marriage which, as defined by the Marriage Act 1961, is “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.[21]
[21] Marriage Act 1961, s.5.
Section 44(1C) provides that notwithstanding the requirements of s.44(1B) of the Act, if the Court is satisfied that there are special circumstances by reason of which the hearing of an application for a divorce order in relation to a marriage should proceed notwithstanding that the parties have not considered a reconciliation with assistance of the kind referred to in s.44(1B), the Court may still proceed to deal with the application.
Section 44(1C) of the Act does not limit the nature of the circumstances the Court may consider and these clearly extend beyond the reasons why reconciliation has not been considered.
In this case, the marriage was an arranged marriage. The parties married some 18 days after meeting and the Husband returned to Australia some 19 days later.
While it is not contended that the marriage was entered into under duress, the Husband’s evidence was that he felt some pressure from his family to marry.
During the life of the marriage, apart from those 19 days, the Husband and Wife spent no more than a total of five months together.
It is clear, from the Husband’s evidence, that he saw no prospect of reconciliation after 21 February 2012. While the Wife gave evidence in the Magistrates Court that she did not “want to be free of the marriage”[22], she also indicated that she did not want to continue the marriage. She took proceedings against the Husband for an Intervention Order.
[22] Affidavit of Mr P filed on 16 August 2013, Annexure [Mr P]-1, at p.13.
There are no children of the marriage.
I am satisfied that, taking into account all of these factors, there are matters peculiar to this case which are unusual or different and which set it apart from other cases. I am therefore satisfied that there are special circumstances by reason of which the hearing of the application should be allowed to proceed.
The Court finds that the parties were married on [omitted] March 2011 in India. The Husband has been living in Australia since 2007 and wishes to remain here indefinitely. I find him to be domiciled in Australia. The Wife has been living in Australia and was so resident for one year immediately preceding the date on which the Application was filed.
The parties separated on 25 February 2012 and have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the Application. Cohabitation has not been resumed.
The Court is satisfied that the marriage has irretrievably broken down. There are no children of the marriage.
Accordingly, a Divorce Order is made, taking effect at the expiration of a period of one month from the date of this decision.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 27 September 2013
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