Russell and Russell
[2014] FCCA 2574
•21 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RUSSELL & RUSSELL | [2014] FCCA 2574 |
| Catchwords: FAMILY LAW – Divorce application – marriage under the Hindu Marriage Act 1955 – whether Australia is the appropriate forum for divorce proceedings. |
| Legislation: Family Law Act 1975, ss.39, 48 Protection of Women from Domestic Violence Act 2005(India) |
| Henryv Henry [1996] HCA 51 Gatto & Norton [2012] FMCAfam 1175 Singh & Dua [2013] FCCA 1938 Mehra & Bose (No.3) [2013] FCCA 2273 Voth v Manildra Flour Mills (1990) 117 CLR 538 |
| Applicant: | MR RUSSELL |
| Respondent: | MS RUSSELL |
| File Number: | MLC 8378 of 2010 |
| Judgment of: | Judge Small |
| Hearing date: | 20 August 2014 |
| Date of Last Submission: | 20 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 21 November 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hamilton, Solicitor |
| Solicitors for the Applicant: | Thextons Lawyers |
| Counsel for the Respondent: | Mr Glass of Counsel |
| Solicitors for the Respondent: | Womens Legal Service |
ORDERS
THE COURT ORDERS THAT:
The Wife’s Response to Divorce Application filed 11 November 2013 is dismissed.
THE COURT FINDS THAT:
The marriage is proved.
The Husband was at all material times domiciled in Australia.
The ground for divorce, being that the marriage has broken down irretrievably, is proved.
THE COURT DECLARES THAT IT IS SATISFIED THAT:
The only child of the marriage pursuant to s.55A(3) of the Family Law Act 1975 who has not attained the age of eighteen years is the child X born (omitted) 2008 (“the child”).
Proper arrangements in all the circumstances have been made for the care, welfare and development of the child.
AND THE COURT FURTHER ORDERS THAT:
A divorce order be made, that order to take effect one month from the date of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Russell & Russell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8378 of 2010
| MR RUSSELL |
Applicant
And
| MS RUSSELL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a Divorce Application filed by the husband Mr Russell (“the Husband”) on 9 October 2013.
It is the third Application the Husband has made in this Court to divorce his wife Ms Russell (“the Wife”).
The sole issue for determination in this matter is whether Australia is the appropriate forum in which to hear divorce proceedings between these parties.
Background
The parties married on (omitted) 2007 in (omitted), India, under the provisions of the Hindu Marriage Act 1955. They have one child, X, known as “X”, who was born in India on (omitted) 2008.
The family came to Australia in January 2010 and the parties separated on 22 August 2010.
In October 2011 and in April and May 2013, before these proceedings were issued, but, I note, after the husband’s initial divorce application was filed in this Court on 24 August 2011, the wife instituted proceedings in the Indian courts in relation to other matrimonial matters. Those proceedings were instituted under the Protection of Women from Domestic Violence Act 2005, the Dowry Prohibition Act 1961 and the Criminal Procedure Code 1973. Those proceedings are for spousal maintenance and child support, and compensation for domestic violence offences said to have been committed against her by the Husband.
The Husband returned to India in about April 2012 and re-entered Australia on 19 January 2013 having been issued with a Permanent Residency Visa. He has remained in Australia since that date.
The Wife returned to India with the child in late 2012, but entered Australia again in July 2013 on a Protection Visa that allows her and the child to remain in this country indefinitely.
Parenting proceedings were issued by the Husband on 7 September 2010 and those matters were resolved at that time by the decision of Young J in the Family Court of Australia on 7 November 2012. That decision was that, because the Husband had returned to India at that time, and Young J was not satisfied that he intended to return to Australia, and because the Wife was also about to return to India permanently with the child, it was more appropriate for the Indian courts to determine parenting issues between the parties.
When the parties returned to Australia, an Application for parenting orders was once again filed in the Family Court of Australia and that Application was still on foot at the time of this hearing.
Procedural History
The Husband first filed a Divorce Application in the Melbourne Registry of this Court on 24 August 2011. The Wife contested the making of a divorce order on five grounds:
1.That neither party was ordinarily resident in Australia at the time of the Application being filed.
2.The parties had not made proper arrangements in all the circumstances for the child of the marriage.
3.The Family Court of Australia was clearly an inappropriate forum for the Application;
4.The Application was vexatious, oppressive and an abuse of process; and
5.The Husband had left Australia permanently and the Wife would be doing so by the end of 2012 and therefore there was no jurisdiction for the Court to make a divorce order in Australia.
As I have stated, the parties had Parenting Applications before the Family Court of Australia at that time and the contested Divorce Application was heard by Young J, who was also hearing the parenting matters.
Young J refused to grant the divorce order on two grounds.
First he found that while the Husband had been ordinarily resident in Australia on the date he filed the Divorce Application (that is, on 24 August 2010), he was not resident at the time of the judgment (that is on 7 November 2012) and was not likely to return to Australia.. He was not therefore “domiciled” in Australia within the meaning of s.39(3) of the Family Law Act 1975.
Second, he found that Australia was not the appropriate forum for the Application in circumstances where the Husband lived in India and was an Indian citizen, where the Wife, also an Indian citizen, would soon be living in India with the child, where the parties and the child were all born in India, and where the parties were married in India.
On 5 March 2013 the Husband filed his second Application for Divorce in the Federal Magistrates Court of Australia (as it then was). By that time, he had returned to Australia and was a permanent resident.
On 16 March 2013 Registrar Sikiotis dismissed that Application for want of jurisdiction, citing the decision of Young J on 7 November 2012 that the Husband was not resident or domiciled in Australia on that date, some four months before the filing of the second Divorce Application.
Undeterred, the Husband filed this Application on 9 October 2013, stating that both he and the Wife were domiciled in Australia and ordinarily resident in Australia and had been so for twelve months prior to the filing of the Application.
The Wife’s Response to that Application was that neither she nor the Husband had lived in Australia for twelve months prior to the Application being filed as Young J had found that the Husband was not domiciled here on 7 November 2012.
Her second ground of objection was that India is the proper jurisdiction for divorce proceedings between the parties because an Australian divorce order would cause her prejudice in the proceedings currently on foot in India for spousal maintenance, child support and compensation for the domestic violence she says the Husband perpetrated upon her during the marriage.
By the time the matter came before me on 20 August 2014, the Wife had conceded the domicile issue and was relying only on the ground that Australia was the clearly inappropriate forum for hearing a divorce application between these parties.
In other words the wife was no longer objecting to the jurisdiction of this court to hear the husband’s divorce application as the provisions of s. 39(3) of the Family Law Act 1975 are satisfied in this case.
Both parties and one witness for the wife gave evidence during the hearing and my decision was reserved.
The Evidence and the Law
The law in relation to divorce in Australia is found in part IV of the Family Law act 1975 (“the Family Law Act”).
Section 39(3) of that Act provides as follows:
Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order is filed in a court, either party to the marriage:
(a) Is an Australian citizen;
(b) Is domiciled in Australia; or
(c) Is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.
While neither party in these proceedings is an Australian citizen and neither had been resident in Australia for 1 year prior to the date of filing the application on 9 October 2013, it is conceded and agreed that the Husband was domiciled in Australia on that date.
Section 48 of the Family Law Act states:
(1) 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.
(2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.
(3) A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
It is not disputed that the parties to these proceedings have been separated for more than 12 months.
Therefore, being a court having jurisdiction under the Family Law Act, this court has jurisdiction to hear the husband’s application.
However, the Wife says that the parties were married under the Indian Hindu Marriage Act 1955 (“the Hindu Marriage Act”), and that is the legislation which ought to apply to divorce proceedings between them. As there are specific and exclusive grounds for divorce under that Act, and the Husband has pleaded none of those in these proceedings, she says that a divorce granted under Australian law would affect her proprietary interests under Indian law.
As I understand the argument, the Husband has property in India which can be used as security for payment of compensation, child support and spousal maintenance, and the Wife’s rights to so use that property in the Indian proceedings currently on foot would be affected by an Australian divorce order.
In support of that argument, the Wife annexed to her Response to Divorce document filed on 11 November 2013 a letter from (omitted), Advocate, (omitted) High Court in (omitted) dated 20 September 2011.
(omitted)’s letter, which, I note, is not attached to an Affidavit sworn by him, confirms that proceedings in relation to dowry and domestic violence matters are on foot in India, and that an arrest warrant has been issued for the Husband although he is unable to be apprehended because he is out of the country.
The letter goes on to say at paragraph 3:
That the petitioner[1] has filed the divorce petition with an oblique motive to effect (sic) the outcome of above referred proceedings.
That the grant of divorce will effect (sic) the proprietary and matrimonial disputes/cases in India against the petitioner.
[1] That is the Husband in these proceedings
The letter gives no detail beyond that statement as to how an Australian divorce order would so affect the Wife’s Indian proceedings.
In further support of her claim the Wife filed an Affidavit sworn by Ms Molina Asthana, a solicitor who is licensed to practise law in both India and Australia and who practised in India for seven years prior to migrating to Australia.
In that Affidavit[2], Ms Asthana states that an Australian divorce order might be taken into account by an Indian court dealing with the issue of compensation for domestic violence offences or spousal maintenance. It would not affect the criminal proceedings.
[2] Affidavit of Molina Asthana sworn and filed 19 December 2013
It is her evidence that because the Husband has assets in India a spousal maintenance order would be enforceable against him in that country. The Husband is said to have no income or assets in Australia.
She does not, however, set out how the Indian courts might regard an Australian divorce order in those proceedings.
She also states that any “alimony or maintenance orders granted by the Australian court may be taken into account by courts in India and this would render her proceedings futile”.
That particular issue is not one for these proceedings as this Application is for a divorce order and not for any financial orders.
Ms Asthana further deposes that as the parties are Hindu and were married under the Hindu Marriage Act 1955, an Australian court is only able to make a decree that is binding in India under grounds set out in that Act. She says that the Husband has not pleaded any of those grounds.
She says that the Hindu Marriage Act applies to Hindus who live outside India “for a given time” but are “domiciled in India” and she says that status appears to apply to the Wife. That is rather odd given that the Wife entered Australia on a Protection Visa in July 2013 and Ms Asthana’s Affidavit was sworn on 19 December 2013.
At paragraphs 16 to 23 of her Affidavit, Ms Asthana sets out her understanding of Indian case law in relation to whether a foreign divorce decree is “conclusive” under s.13 of the Indian Code of Civil Procedure 1908, concluding that she does not believe that an Australian divorce order would be recognised by Indian courts in circumstances where both parties are Indian citizens and married in India under the Hindu Marriage Act 1955.
Ms Asthana gave evidence and was cross-examined at trial.
Her evidence was that she had not practised Family Law in India save for some minor work as part of a generalist law firm and that she has not practised Family Law in Australia. She said that she sometimes gives advice to Indian women living in Australia in relation to dowry disputes.
While the wife put Ms Asthana forward as an expert witness, I was not convinced from several things she said during her evidence that she is in fact an expert in Indian Family Law matters, and she has no experience of Australian Family Law.
Her evidence was somewhat contradictory in that she said on one hand that an Australian divorce order would prejudice the Wife’s rights in the Indian proceedings, and on the other that it would not be recognised by Indian Courts as it would not comply with the Hindu Marriage Act 1955.
As counsel for the husband said in closing submissions, the wife cannot have it both ways. She cannot claim both that a divorce order would be recognised in India and thus prejudice her Indian proceedings and that a divorce order would not be recognised in India.
In those circumstances, where her expertise is not well-established and where her evidence is contradictory, I do not place great weight on the evidence of Ms Asthana.
Even counsel for the wife conceded in final submissions that at its highest, Ms Asthana’s evidence was that an Australian divorce order “might” prejudice the wife’s proceedings in India.
I therefore find that there is no cogent evidence before the Court in this case that an Australian divorce order would prejudice the wife’s case in the Indian proceedings.
The issue of whether marriages solemnised under the Hindu Marriage Act 1955 should be dissolved by a divorce order issued by an Australian court has been canvassed in several cases in this Court in recent years and those to which I refer below are by no means an exhaustive list.
In final submissions Mr Glass, for the wife, urged me to be cautious in looking at first instance cases such as those below, saying that I should be careful that I do not “compare apples and oranges” when referring to them. He said, quite properly, that the authoritative decision in these cases is that of the High Court in Henry v Henry[3] (“Henry”) and that I should pay close attention to the text of that decision. I will return to the High Court’s decision in Henry shortly.
[3] Henryv Henry [1996] HCA 51
In Gatto & Norton[4] Federal Magistrate Scarlett (as he then was) found that the provisions of the Indian Special Marriages Act 1954, which has similar restrictions as to grounds for divorce to the Hindu Marriage Act 1955, did not preclude an Australian court from granting a divorce to parties where one of them was domiciled in Australia, as such circumstances complied with s.39 of the Family Law Act 1975.
[4] Gatto & Norton [2012] FMCAfam 1175
In that case there were no proceedings on foot in India and the arguments were based on the submission that if the Indian Courts did not recognise an Australian divorce order as not complying with the Special Marriages Act then the parties would be committing bigamy if they married again. No evidence was adduced to support that assertion, and as there was clear jurisdiction in Australia, Scarlett FM issued an Order divorcing the parties.
In Singh & Dua[5] the parties had married in India under the Hindu Marriage Act and had subsequently moved to Australia, where they separated about a year later.
[5] Singh & Dua [2013] FCCA 1938
The husband was an Australian citizen and the wife, who still lived in Australia, had filed a “Petition for Restitution of Conjugal Rights” in India after the filing of the husband’s Divorce Application in Australia.
There had been parenting proceedings in Australia in relation to the parties’ child and in those circumstances, where Judge Donald said that the wife had “received the benefit of orders for parental responsibility and that the child live with her”[6], he summarily dismissed the wife’s application for a stay of the divorce proceedings on the ground that Australia was not the clearly inappropriate forum.
[6] Ibid at paragraph 21
In Mehra & Bose (No.3)[7] Judge Monahan made a divorce order in circumstances that were strikingly similar to those in this case.
[7] Mehra & Bose (No. 3) [2013] FCCA 2273
In that case the parties had been married in India under the Hindu Marriage Act and the husband was now living in Australia and had become an Australian citizen. The wife remained in India where she had instituted proceedings for maintenance and compensation very similar to those instituted by the wife in this case.
Both parties had engaged experts in India to support their case and both experts had filed affidavits in this Court. In addition they had provided a joint statement for the Court in relation to the parties’ positions before the Indian courts, and both gave oral evidence before this Court by telephone, with each hearing the other’s evidence.
Judge Monahan found that while the Indian courts certainly had jurisdiction in that case, Australia was not the “clearly inappropriate forum” to hear the parties’ divorce.
In a comprehensive judgment setting out the relevant law in these matters, His Honour quoted from the leading case of Voth v Manildra Flour Mills (1990) 117 CLR 538 (“Voth”) where the High Court found that a party who has properly filed an application in Australian courts has a prima facie right to have that application heard in Australia unless Australia is the clearly inappropriate forum.
In Henry, the High Court held that the “clearly inappropriate forum” test as set out in Voth applies to divorce applications, but that the right to have an application heard in the jurisdiction in which was filed should not be overstated.
In his final submissions, counsel for the wife referred to the following passage from the judgment of the majority in Henry:
In Voth, this Court adopted for Australian the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is the clearly inappropriate forum, which will be the case if the continuation of the proceedings in that court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious in the sense of “productive of serious and unjustified trouble and harassment”[8].
[8] Henry paragraph 25
I shall return to the issue of whether these proceedings are oppressive or vexatious shortly.
In Mehra & Bose Judge Monaghan set out the following passage from the majority judgment in Voth:
The clearly inappropriate forum test is similar to and for that reason is likely to yield the same result as the more appropriate forum test in the majority of cases. The differences between the two tests will be of critical significance only in those cases, probably rare, in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one. But the question which the former test presents is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make comparative judgement between the two forums. That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum. The important point is that in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the Court may more readily conclude that it is not the clearly inappropriate forum.[9]
[9] Voth v Manildra Flour Mills (1990) 117 CLR 538 at 555
In Henry, Brennan CJ said, at paragraph 13: “the gravamen of the Voth test is that some reason must be shown, not for preferring one forum or another, but for staying the exercise of the jurisdiction of the selected forum”.
In Henry, the High Court was dealing with a case in which the parties had no children, where the wife had never lived in Australia, and where all the property in dispute was in Monaco. The wife had instituted proceedings in Monaco and the husband in Australia. The majority found that as there was no connection between the marriage and Australia and the parties had last lived together in Monaco, the issue of the forum where the matter should be heard should be remitted to the Family Court.
That is not the case here. The parties have a child, whose care arrangements have been left to the Family Court of Australia to decide. The parties last lived together, and separated, in Australia. In other words, there is a connection between the marriage and this country and the parties have both submitted to the jurisdiction of the Family Court of Australia in relation to parenting issues. While the submission to jurisdiction is not a sole determinative factor, it is one to consider among all the evidence.
In deciding whether the selected forum is “clearly inappropriate”, the question of whether an order made in that forum would be vexatious or oppressive should also be considered.
The majority in Henry said the following on that issue:
35. It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in foreign countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense those words.
However the High Court went on to say:
36. It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceeding should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.
I note that in the present case, the proceedings in India are for spousal maintenance, child support and compensation for domestic violence offences and that the proceedings before me are simply for dissolution of the marriage.
The wife has stated clearly before the Court that it is her intention to apply for a divorce in India once the ancillary proceedings have concluded. I infer from that that she does not see the proceedings for divorce as being “identical” to the proceedings for ancillary relief which she has instituted India.
Further, the wife instituted the Indian proceedings after the husband first applied for a divorce in Australia. As Mr Glass said in his closing submissions, the majority in Henry found that the timing of applications is relevant. He said:
The majority held that merely the commencement of a subsequent action in the courts of this country if an action is already pending with respect to the same matter in issue that commencement is prima facie vexatious and oppressive.
Mr Glass was taking the technical point that these particular divorce proceedings, filed in October 2013, had been instituted by the husband after the wife had instituted proceedings in India. I think that is stretching the point a little too far in circumstances where he first filed for divorce in Australia in August 2011, and that on that basis it would be the proceedings India which would be vexatious and oppressive under Australian law.
I do not find therefore that these proceedings are oppressive or vexatious to the wife in the sense described by the High Court in Henry.
Further, I note that in coming to his decision that Australia was the clearly inappropriate forum in which to hear the husband’s divorce application in November 2012, Young J found that the husband was then living in India and unlikely to return to Australia, and that the wife was about to return to India permanently with the child, thus essentially severing the connection between the marriage and Australia although His Honour did not put the matter in those terms.
Those are not the circumstances before the Court at this time. Both parties are now domiciled in Australia and there are proceedings on foot in relation to the child in the Family Court of Australia.
The onus is on the wife in these proceedings to show that Australia is the clearly inappropriate forum. It is not enough for her to show that India is an alternative and equally appropriate forum or that she has remedies available in the overseas forum that are not available to her in Australia.
In the present case, where even if I accepted that an Australian divorce order might prejudice proceedings on foot in India this case would remain “finely balanced” in my view, I cannot find that the wife has discharged the onus placed on her to prove that Australia is the clearly inappropriate forum.
Conclusion
In all the circumstances and having found that Australia is not the clearly inappropriate forum, I will dismiss the wife’s Response and grant the orders sought in the husband’s Application.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 21 November 2014
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