Russell and Russell (No. 4)

[2012] FamCA 746

FAMILY COURT OF AUSTRALIA

RUSSELL & RUSSELL (NO. 4) [2012] FamCA 746

FAMILY LAW - DIVORCE – Hearing part-heard as husband has left the jurisdiction and is living in India – Husband has wrongfully retained passport of the child – Wife and child remain in Australia – Issues of whether Australia is now an inappropriate forum for the hearing of the divorce application – Judgment has been reserved and now further applications are to be filed by leave and further evidence and submissions provided to the Court

Family Law Act 1975 (Cth)

APPLICANT: Ms Russell

RESPONDENT: Mr Russell

FILE NUMBER: MLC 8378 of 2010

DATE DELIVERED: 23 August 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 23 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Devine

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT the further hearing of the Application for the divorce be adjourned for listing before Young J at 11.30 a.m. on Monday 8 October 2012.

2. THAT leave be granted to the wife to make, file and serve within fourteen (14) days a further Application in a Case supported by an affidavit.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

4. THAT the husband file any responding affidavit or submissions on or before Monday 1 October 2012 and further he must notify the Court and the wife’s solicitors in advance if he intends to personally appear at the hearing on 8 October 2012 in the Family Court of Australia in Melbourne.

5. THAT the wife’s costs of and incidental to the hearing this day be reserved.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Russell & Russell (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8378 of 2010

Ms Russell

Applicant

And

Mr Russell

Respondent

REASONS FOR JUDGMENT

1. The matter of Russell returns this day and again, Ms Devine of Counsel appears on behalf of the mother.  The mother is in court and has the assistance of a Hindi interpreter.  The husband does not appear and is currently living and working in India.  The child known as T, who was the subject of a defended hearing before me over five days in January of this year, is living with his mother and he is in Australia. 

2. The background to this hearing are the orders that I made on 7 March of this year and the substantial reasons for judgment delivered.  The remaining matter that was then outstanding was the application for dissolution of marriage and that is a matter where I have heard evidence and submissions, and I have reserved my reasons for judgment and pronouncement of orders.  The issues in that matter relate to the wife’s opposition to a divorce being granted on grounds of either residency or that Australia was an inappropriate forum for the proceedings.  That latter submission was made on the basis that the parties were born in India, they are citizens of India, they were married in India, their child was born in India and currently the husband is living in India and the wife and child are intending to return to live in India as soon as practicable. 

3. The factual issue that has arisen is that when the husband left Australia he took with him the child’s passport, and despite many requests to return that document to the wife, he has refused to do so or otherwise has advised this court in extensive further written submissions that he is prevented from so doing by Indian law where it is alleged by him that the passport cannot be posted or otherwise couriered to the wife in this country. 

4. The wife’s position is that she wants to return immediately to her homeland and her family.  She would intend to register the orders of the Australian court, which I made, in India or otherwise to seek the appropriate custody or residence order for the child T in her favour.  There are circumstances where the wife could travel without a passport for the child T, subject to the completion of certain requirements of the Australian Department of Immigration and Citizenship and travel on a document specifically limited to one way travel for the child T to India, but which she said would otherwise raise questions thereafter of whether she and/or the child could ever return to or enter Australia.  They are all matters for consideration another day and perhaps by another court or tribunal. 

5. These submissions on behalf of the mother also highlight that the father is in default on payment of child maintenance and spousal maintenance and the wife cannot afford to buy air tickets for her return to India. 

6. The wife’s application in a case before the court today was filed 14 August 2002 and that seeks to adduce further evidence in relation to the divorce proceedings.  The wife filed an affidavit in support of that application which I have read and which details what she alleged to be the husband’s departure from Australia, his non-compliance with previous orders, his failure to pay her maintenance or costs as ordered, and his refusal to return the child’s passport to her.  The wife does, however, say in paragraph 32 of that document that she is committed to returning to India as soon as possible.  The further affidavit filed in support was sworn by her solicitor, Ms Walters and she annexes various correspondence and emailed transmissions that have arisen between herself and the husband or otherwise in these proceedings. 

7. The husband has filed two documents on 17 August 2012 and they are a response to the affidavit of the wife and additional and lengthy submissions.  Annexed to his submissions are various documents and correspondence and also the most recent order made in the Supreme Court of India in relation to proceedings that were identified in the defended hearing before me and which related to questions of the repayment of the Dowry allegedly paid. 

8. As I read the order of the Indian Supreme Court, what was done was to transfer the proceedings to a judge to be heard within the district of E in the state of F, otherwise those hearings are continuing and the merit of the case is yet to be determined.  In any event, it is important to understand that those proceedings are in India, they are solely within the concern and ambit of the courts in India and they are not matters that are applicable to the outstanding proceedings and the hearing of the divorce application in this country, notwithstanding all of the efforts of both parties to air those Indian court proceedings before me. 

9. The issue with which I am primarily concerned is the granting of a divorce, and that turns upon both issues of residence and whether Australia is an inappropriate forum.  Certainly, the question of residence is an issue to be determined at the date of filing the application, notwithstanding the husband’s departure for India and the wife’s intended departure for India.  The question, however, of whether Australia is the appropriate forum if neither party is living in Australia, if the marriage was outside of Australia, and both parties are then citizens of and resident in India, is a question to be further considered. 

10. I have, again, carefully read the various submissions of the husband, and, in particular, in paragraphs 19-21 he indicates that he is working in India, but he is seeking permission to travel to Australia or otherwise to be transferred back to Australia in his employment.  The husband, as I have earlier found in my detailed reasons for judgment, does have exceptional work skills and they are highly transportable within his field of employment and he could and has worked in any other country in the world, subject to his being transferred and language restrictions.  His English is very good. 

11. With that background, the wife’s counsel has again submitted that her client does wish to return as soon as practicable to India.  It has been highlighted that there is an airport watch list order current in Australia so that the departure of the child from any international airport would be prevented.  Those orders are sought to be lifted.  Otherwise, by my orders of 7 March, pursuant to which the wife was granted sole parental responsibility for the child and the child was ordered to live with her, she was otherwise authorised and permitted to relocate from Australia and to remove the child so that he could live with her in City J in India. 

12. There are, however, provisions in paragraph 6, 7, 8 and 9 of my order that facilitated time to be spent by the child with the husband if the whole family thereafter lived in India.  The wife may now seek the suspension of those four paragraphs of my order, and, in that regard, her counsel has sought time to take further instructions from the wife and to prepare a formal written application in a case.  I have indicated that I would only deal with such an application if the husband is given written notice and the opportunity to file any affidavit or provide other evidence or submissions. 

13. The effect of the suspension or discharge of paragraph 6, 7, 8 or 9 of my orders of 7 March of this year would be that the wife would remain the person with sole parental responsibility and the orders of this court in this country would be for the child to live with her.  It must be recorded that since the orders were made, and in the almost six months that have passed, the child has exclusively lived with his mother and is said to have further bonded with her. 

14. I have no evidence of any contact by communication or electronic means between the child and the father who, somewhat abruptly and without proper notice, departed Australia for India where he continues to work and reside.  I also note that the husband, in his filed material and submission, has indicated that he wants to be free to remarry or repartner and lead his own life wherever he chooses so to do. 

15. The wife also has given an undertaking to this court which is recorded in Notation B to my orders of 7 March of this year and that is that on arrival in City J in India, she would seek all appropriate legal advice to either register the child and parenting orders that I made with that court in India or to make application for like orders so that she would seek to retain custody of the child T.  The foreshadowed application is that the wife be released from that undertaking.  What I, therefore, require is for the wife’s solicitors to take instructions, but to make, file and serve an application in a case, setting out the precise orders that are sought, and then to serve and inform the husband of those orders.  The effect of the orders which they have foreshadowed would be such that the wife and child could depart Australia and then all other proceedings would be in India. 

16. The husband, of course, would have a right to travel to Australia for the continuing defended hearing before me, but I would need prior notice of that fact and of his arrival in this country.  If and when he were to appear, issues of the substantial arrears of maintenance and costs owing and other specific issues would arise.  Clearly, and without any qualification, were the husband to come to Australia, he must bring the child T’s Indian passport with him and deliver same to the wife.  I would not accept any other scenario, save in the most exceptional circumstances, and upon the husband persuading the court that he was not able to travel with the child’s passport or return same to this primary parent.

17. It is proper and just that I defer the conclusion of the divorce proceedings.

18. I want to better understand what will be the residency circumstances of both the husband and wife, but, more particularly, and in the ever evolving facts and circumstances of this case, I require further submissions on whether Australia should be found to be an inappropriate forum for the granting of a divorce of their Indian marriage. 

19. Thus what I intend to do is to adjourn for further case management and direction, the extant hearing of the application for dissolution of marriage.  I will adjourn that for listing before me on 8 October 2012 at 11.30 a.m.  I require, forthwith, the wife to make, file and serve a further application in a case supported by a brief affidavit, and to serve that document upon the husband so that he has sufficient time to read and respond thereto or to travel to Australia. 

20. For the purposes of the ex tempore judgment delivered without leaving the bench, I make it clear that I have not determined, in any way, the orders that I will make on the adjourn date.  I do, however, well understand the desire of the wife to return to live in India as that is her homeland and to her family, and that she desires to have the child T living with her at all times. 

    RECORDED  :  NOT TRANSCRIBED

21. Following up on the submission made by Ms Devine, the wife must file the application in a case an affidavit within 14 days, and, thereafter, immediately effect service of same upon the husband. 

22. I will have these ex tempore reasons for judgment transcribed placed upon the court file and made available to the parties.

23. As an abundance of caution, there is and I impose a level of responsibility upon the wife’s solicitors to ensure that a copy of the ex tempore reasons for judgment are delivered to the husband.

    RECORDED  :  NOT TRANSCRIBED

24. Otherwise, it is appropriate that I reserve the costs of these proceedings, and I certify for the attendance of counsel. 

I certify that the preceding Twenty-Four
(24) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 23 August 2012.

Associate: ……………………………………………………………

Date:  …………………………………………………………………