Rizal & Basnet
[2025] FedCFamC2F 141
•11 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rizal & Basnet [2025] FedCFamC2F 141
File number(s): DGC 1296 of 2024 Judgment of: JUDGE GLASS Date of judgment: 11 February 2025 Catchwords: FAMILY LAW – DIVORCE – clearly inappropriate forum – application for divorce filed by the wife in Australia – where civil and criminal proceedings are ongoing in Country B – where the husband’s application to stay Australian proceedings is dismissed – where the wife’s application for divorce is granted Legislation: Marriage Act 1961 (Cth) ss 23B, 88B, 88D Cases cited:
Bakshi & Mahanta (No 2) (2022) 367 FLR 177
Desai & Desai (2024) FLC 94-213
Henry v Henry (1996) 185 CLR 571
Kent & Kent (2017) FLC 93-792
Navarro & Jurado (2010) 44 Fam LR 310
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Pathak & Hardikar (2022) FLC 94-111
Skinner v Alfonso-Skinner [2010] FamCA 329
Talwar & Sarai (2018) FLC 93-855
Victorian International Container Terminal Ltd v Hunt (2021) 271 CLR 132
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Whung & Whung & Ors [2011] FamCA 137
Division: Division 2 Family Law Number of paragraphs: 29 Date of hearing: 29 January 2025 Place: Dandenong Counsel for the Applicant: Ms Vallins Solicitor for the Applicant: BTT Lawyers Pty Ltd Counsel for the Respondent: Mr Lethlean Solicitor for the Respondent: Saundh Singh & Smith Lawyers ORDERS
DGC 1296 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RIZAL
Applicant
AND: MR BASNET
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
11 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Respondent’s application for a stay is dismissed.
2.The Applicant’s application for a Divorce is granted.
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 GLASS:
Ms Rizal and Mr Basnet were married in Country B in 2016.
In late 2021, Mr Basnet applied in Country B to annul the marriage. Those proceedings are unresolved.
In April 2024, Ms Rizal applied for a divorce in this Court.
Mr Basnet seeks the stay of the divorce application pending resolution of the nullity proceedings in Country B, contending that Australia is a clearly inappropriate forum.
Mr Basnet bears the onus of establishing Australia is a clearly inappropriate forum.[1] As will be seen, his evidence is deficient in a number of respects.
[1] Desai & Desai (2024) FLC 94-213 at [32]; Bakshi & Mahanta (No 2) (2022) 367 FLR 177 at [52]; Navarro & Jurado (2010) 44 Fam LR 310 [188].
The decision of whether to stay the local proceedings “neither turns upon an assessment of the comparative procedural or other claims of the foreign forum nor requires the formation of subjective views about either the merits of that forum’s legal system or the standards and impartiality of those who administer it.”[2]
[2] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”) at 558 per Mason CJ, Deane, Dawson & Gaudron JJ.
It is ordinarily unnecessary for me to do more than briefly indicate that, having examined the material in evidence and having taken into account the competing submissions, I am of the view that the proceedings should or should not be stayed.[3]
[3] Voth at 565 per Mason CJ, Deane, Dawson & Gaudron JJ.
Ms Rizal has regularly invoked the Court’s jurisdiction and has a prima facie right to insist upon its exercise.[4] I may stay those proceedings on inappropriate forum grounds, if I am satisfied that they are “oppressive, vexatious, or an abuse of process”[5] to avoid injustice between parties in a particular case. In this context, oppressive means “seriously and unfairly burdensome, prejudicial or damaging” and vexatious means “productive of serious and unjustified trouble and harassment”.[6]
[4] Voth at 554 per Mason CJ, Deane, Dawson & Gaudron JJ; Victorian International Container Terminal Ltd v Hunt (2021) 271 CLR 132 at [25] per Kiefel CJ, Gageler, Keane & Gordon JJ.
[5] Voth at 554 per Mason CJ, Deane, Dawson & Gaudron JJ.
[6] Henry v Henry (1996) 185 CLR 571 (“Henry”) at 587 per Dawson, Gaudron, McHugh & Gummow JJ, quoting Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247 per Deane J.
It is insufficient that the balance of convenience favours another jurisdiction or Country B provides a more appropriate forum. The power to stay the action is to be exercised “with great care” or “extreme caution”.[7]
[7] Voth at 554 per Mason CJ, Deane, Dawson & Gaudron JJ.
A number of non-exhaustive considerations have been held to be relevant to which I will now turn.[8]
[8] Henry at 592-593 per Dawson, Gaudron, McHugh & Gummow JJ; Skinner v Alfonso-Skinner [2010] FamCA 329 at [68-70]; Whung & Whung & Ors [2011] FamCA 137 at [43]; Kent & Kent (2017) FLC 93-792 at [31].
There are extant proceedings on foot in both Country B and Australia. It is not suggested that either country is without jurisdiction to determine the respective causes of action.
Mr Basnet has adduced no evidence in relation to whether the Country B Courts will recognise this Court’s orders and decrees.
Ms Rizal and Mr Basnet are Australian citizens. They live in Australia. They have a child in Australia. They are involved in proceedings pending before this Court in relation to both property and parenting issues. Both parties seek to invoke the Court’s jurisdiction to make orders of both types. Despite the existence of both maintenance and criminal proceedings between the parties in Country B, I am satisfied that Australia can provide more effectively for complete resolution of the matters involved in the parties’ controversy. I note that, ordinarily, disputes with respect to property, maintenance and parenting are but aspects of an underlying controversy with respect to the marital relationship.[9]
[9] Henry at 591-2 per Dawson, Gaudron, McHugh & Gummow JJ.
Mr Basnet initiated proceedings for nullity in Country B prior to Ms Rizal’s divorce application. Whilst it has been held to be prima facie vexatious and oppressive in the relevant sense to commence a second action in this country if an action is already pending with respect to the matter in issue, that fact alone does not mean the local proceedings should be stayed.[10] The mere existence of proceedings in two different countries does not, of itself, constitute vexatious or oppressive conduct.[11]
[10] Henry at 591 per Dawson, Gaudron, McHugh & Gummow JJ.
[11] Talwar & Sarai (2018) FLC 93-855 (“Talwar & Sarai”) at [22] and the case there cited.
As Mr Basnet conceded in submissions, Ms Rizal’s application for a divorce, is a different cause of action to his application for an annulment.
I am bereft of evidence as to the stage Mr Basnet’s nullity application has reached. It was commenced more than three years ago.
Mr Basnet relies on evidence from his lawyer in Country B, Mr C, who deposed in October 2024 that he believed “the estimated time for resolution of this matter is 6 months to 8 months”,[12] although that opinion appears to be based on the requirement for the parties to appear in person for leading evidence unless an exemption from personal appearance is granted.
[12] Affidavit of Mr C filed 5 October 2024, paragraph 35.
Mr Basnet deposed in August 2024 to the matter being listed in late 2024. An annexure to Mr C’s affidavit appears to suggest that hearing was administratively adjourned to the following month. However, no evidence is adduced in relation to the outcome of that hearing. No evidence is adduced as to what the next step in the proceeding is, or when it will occur. Through his counsel, Mr Basnet could not advise when the next hearing is to occur.
Mr Basnet proposes that a condition of the grant of a stay could be that he prosecute his application in Country B without undue delay. The difficulty with the submission is that I am bereft of evidence as to what steps are or are not being taken at present. The proceedings have been on foot for an extended period of time and there is no evidence that they have been listed for final determination.
I have no evidence of the costs incurred by the parties in the Country B proceedings, although I note both have been legally represented. To the extent the parties have incurred significant legal costs in relation to this divorce application, those costs relate more to Mr Basnet’s application for a stay than to Ms Rizal’s application for a divorce.
Ms Rizal is unable to travel to Country B. She is subject to a non-bailable arrest warrant in that country. She primarily cares for the parties’ child. Mr Basnet submits that the Court could grant a stay subject to a condition that he withdraw his criminal complaint against Ms Rizal. The difficulty with the submission is that whether or not such a step would result in the discharge of the arrest warrant is a matter of speculation unsupported by any evidence.
Mr Basnet alternatively submits that a condition of the stay could include him taking all steps to support the giving of evidence in the nullity proceedings via video link. Again, the difficulty with the submission is that the likely success of such an application is a matter of speculation. Mr C expresses no opinion as to the prospects of such an application. He deposes that Mr Basnet’s “personal presence” is “required at the time of evidence”.[13] I note Mr Basnet has been unsuccessful on multiple occasions in applying to give evidence in Country B criminal proceedings remotely.
[13] Affidavit of Mr C filed 5 October 2024, paragraph 26.
The evidence does not satisfy me that Ms Rizal is able to participate in the foreign nullity proceedings. It is no answer that she has previously been represented by a lawyer in those proceedings given Mr C’s expert opinion that personal appearance is required for the leading of evidence.
Mr Basnet contends that “[i]f the present proceedings are allowed to continue, this would cause prejudice to the Respondent, will scuttle the legal process, and will result in defeating the [Country B] proceedings which were initiated in 2021.”[14] That contention is unsupported by evidence. Mr Basnet merely deposes that the “present application for divorce will have an adverse impact on the nullity proceedings and the criminal proceedings in [Country B]”,[15] and that Ms Rizal has made the application “to scuttle the proceedings in the [Country B] court”.[16] Those unqualified opinions lack any probative value. They make no attempt to explain what that adverse impact might be or how the proceedings will be scuttled. As Mr Basnet conceded through his counsel, he can continue his nullity application even if this Court were to grant a divorce.
[14] Mr Basnet’s Amended Response to Divorce filed 22 August 2024, page 5.
[15] Affidavit of Mr Basnet filed 8 August 2024, paragraph 32.
[16] Affidavit of Mr Basnet filed 8 August 2024, paragraph 29.
Foreign law is a question of fact which must be established by evidence.[17] Mr Basnet bears the onus.[18] I am not satisfied that the local proceedings will prejudice the foreign proceedings which involve a different cause of action.
[17] Pathak & Hardikar (2022) FLC 94-111 at [17]-18]; Talwar & Sarai at [36].
[18] Talwar & Sarai at [46].
Mr Basnet submits that he is prejudiced if this Court grants a divorce where the conditions for divorce and the nullity in Country B are different. He submits that these proceedings are oppressive because they double up on the same substratum of fact. He also submits that these proceedings have caused him embarrassment, and that the making of this application has subjected him to vexation or oppression. Those submissions do not satisfy me that the divorce proceedings here are vexatious or oppressive in the relevant sense.
Mr Basnet has not established that Australia is a clearly inappropriate forum for the granting of a divorce. I accordingly decline to stay the local proceedings.
Although Mr Basnet seeks to annul his marriage to Ms Rizal in Country B, he has not put in issue in these proceedings the recognition of the marriage in Australia. Even if the marriage is void or voidable, it is to be recognised as valid in Australia unless, relevantly, the consent of the parties was not a real consent for reasons set out in section 23B(1)(d)(i), (ii), or (iii) of the Marriage Act 1961.[19] Despite his evidence that Ms Rizal’s previous marriage was not disclosed to him, Mr Basnet did not submit that his consent to the marriage was obtained by fraud. Mr Basnet makes no application in this Court as to the validity or recognition of the marriage in Australia.
[19] Marriage Act 1961 (Cth), section 88D and subection 88B(3).
Mr Basnet does not dispute any of the pre-conditions to the granting of a divorce by this Court to which Ms Rizal deposes. I will accordingly pronounce an order for the parties’ divorce.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 11 February 2025
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