Russell and Russell - [2014] FCCA 2574

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)
Dowry Prohibition Act 1961 (India)
Criminal Procedure Coda 1973 (India)
Hindu Marriage Act 1955(India)
Special Marriages Act 1954 (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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Russell and Russell

Details

AGLC: Russell and Russell [2014] FCCA 2574
Case: [2014] FCCA 2574
Decision Date: 21 November 2014

CaseChat Overview and Summary

In the matter of *Russell and Russell*, heard by Judge Small, the wife sought to dismiss the husband's divorce application. The husband had filed for divorce, asserting that the marriage had irretrievably broken down. The wife's response aimed to prevent the divorce from being granted.

The central legal issues before the court were whether the marriage had irretrievably broken down, whether the husband was domiciled in Australia, and whether proper arrangements had been made for the care, welfare, and development of the parties' only child, who was under the age of eighteen. The court was required to be satisfied on these points before it could grant a divorce order.

Judge Small found that the marriage was proved and that the husband had been domiciled in Australia at all material times. Crucially, the court was satisfied that the marriage had indeed broken down irretrievably, fulfilling the statutory ground for divorce. Furthermore, the court was satisfied that proper arrangements had been made for the child of the marriage, who was born in 2008. Consequently, the wife's application to dismiss the divorce was dismissed. A divorce order was made, to take effect one month from the date of the court's orders.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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