Russell and Russell (No 5)

FAMILY COURT OF AUSTRALIA

RUSSELL & RUSSELL (NO 5)

[2012] FamCA 917

FAMILY LAW – DIVORCE – Parties Married In India And Relocated to Australia – Child Born In India - Husband Currently Residing in India - Orders Made For Wife And Child To Relocate To India –Ordinarily Resident – Whether Australia Is An Inappropriate Forum For The Granting Of The Divorce – Proceedings On Foot In India Pursuant To The Dowry Prohibition Act 1961(India) – Wife opposing the divorce application – Where marriage has irretrievably broken down and no prospects of reconciliation are found to exist

Family Law Act 1975 (Cth) – ss 4, 39(3), 48, 55A
The Dowry Prohibition Act 1961 (India)
Civil Procedure Code 1908 (India)

Akbarali v Brent London Borough Council (1983) 2 AC 309
Gilmore v Gilmore (1993) FLC 92-533
Henry v Henry (1996) 185 CLR 571
Skinner v Alfonso-Skinner [2010] FamCA 329
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Woodhead v Woodhead (1998) FLC 92-813

APPLICANT:

Mr Russell

RESPONDENT:

Ms Russell

FILE NUMBER:

MLC

8378

2010

DATE DELIVERED:

7 November 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Young J

HEARING DATE:

16, 17, 18,19, 27 January, 13 April, 20 June, 23 August and 8 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Part Mr Ambrose and part In Person

SOLICITOR FOR THE APPLICANT:

Schetzer Constantinou

COUNSEL FOR THE RESPONDENT:

Ms Devine

SOLICITOR FOR THE RESPONDENT:

Lampe Family Lawyers

ORDERS

IT IS ORDERED:

THAT the husband’s application for a divorce filed 24 August 2011 be dismissed.
THAT the husband pay the wife’s costs of and incidental to these proceedings.

IT IS CERTIFIED

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

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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8378 of 2010

Mr Russell

Applicant

And

Ms Russell

Respondent

REASONS FOR JUDGMENT

HISTORY OF FAMILY COURT PROCEEDINGS

The husband filed an Initiating Application in relation to parenting issues on 7 September 2010. I ultimately heard that five day final hearing and delivered judgment and made orders on 7 March 2012 (“the completed proceedings”).
In addition to the completed proceedings, the husband filed an Application for Divorce on 24 August 2011 in the Federal Magistrates’ Court. Those divorce proceedings were consolidated with the completed proceedings by order of Federal Magistrate Burchardt and transferred to this Court.
The contested divorce application was heard at the same time as the completed proceedings, however, judgment was reserved. Since I delivered judgment in the completed proceedings, the matter has been back in Court on numerous occasions during which various further written and oral submissions were made in relation to the divorce proceedings.
The husband was represented by Counsel during the completed proceedings, however, he thereafter became a self-represented litigant. The husband’s last appearance in Court was on 13 April 2012 and he thereafter did not appear given his relocation to India, detailed below. The husband informed the Court of his relocation, by email, and he then filed various written submissions in place of an appearance.

BACKGROUND AND CURRENT LOCATION OF PARTIES

My reasons for judgment in the completed proceedings substantially detail the relevant factual background and history, including the arranged marriage of the parties, their separation and the birth of their only child, H born in August 2008 (“the child”), and who is known by his parents as T.
In summary, the parties married in 2007 in City J, India and after relocating to Melbourne in January 2010 the parties finally separated in Melbourne on 22 August 2010 when the wife left the former matrimonial apartment with the child. Since that date it is an agreed fact that the parties have lived separately and apart. It is further an agreed fact that the marriage has broken down irretrievably.
The husband is currently residing in India and has done since April 2012, which is when he says he was transferred to India for employment purposes. It is the husband’s case that he is temporarily residing in India and intends to return to Australia. The temporary nature of the husband’s current residence in India is disputed by the wife.
The wife currently remains in Australia with the child. It is her intention, and has been her intention for some time, to permanently relocate back to India with the child. The completed proceedings were run on the basis that the wife wished to relocate to India permanently and indeed the final orders in those completed proceedings allow for her to do so, with the child. She said that she and the child’s relocation has been delayed due to problems with his passport, as a result of the husband’s failure to deliver the passport to her, as ordered. On 8 October 2012 Counsel for the wife informed the Court that the wife’s relocation is set to occur in this calendar year, however, the exact date was not disclosed in open Court.

ISSUES

The husband instituted divorce proceedings on 24 August 2011, one year and two days after separation. He did so on the basis that he is ordinarily resident in Australia and was so resident for one year immediately preceding the date of issuing his application. He is not an Australian citizen and made no submission that he had acquired a domicile of choice in Australia or that he was otherwise now domiciled in Australia.
The wife opposed the divorce and submitted that:
(a)neither the husband nor she are ordinarily resident in Australia;
(b)that proper arrangements in all of the circumstances have not been made for the care, welfare and development of the child;
(c)that the Family Court of Australia is a clearly inappropriate forum in which to issue and hear the application;
(d)that the husband’s application is vexatious, oppressive or an abuse of process; and
(e)that the husband had permanently departed Australia, or that it could not be reasonably accepted that he would return to Australia and that upon the wife’s permanent departure for India there would be no party to the marriage living in Australia and thus it would be inappropriate for a Court of this country to exercise jurisdiction and grant a divorce.

DOCUMENTS RELIED UPON

HUSBAND

The husband relied upon his:
(a) Application for Divorce filed 24 August 2011;
(b) affidavit filed 1 December 2011;
(c)to the extent relevant to the divorce proceedings, his trial affidavit in the completed proceedings filed 10 November 2011;
(d)to the extent relevant to the divorce proceedings, various documents handed up to the Court during the completed proceedings, but not formally filed, including:
(i) Outline of Case document for the Divorce Application dated 11 January 2012;
(ii)Minute of Orders Sought dated 25 January 2012;
(iii)List of Authorities dated 25 January 2012; and
(iv)Outline of the husband’s submissions dated 25 January 2012; and
(e)email to the Court dated 1 May 2012 advising of his temporary relocation to India;
(h)his Response to the wife’s affidavit filed on behalf of the wife on 14 August 2012, sworn by the husband on 16 August 2012 and filed 17 August 2012;
(g)his additional submissions sworn 30 July 2012 and filed 17 August 2012 and marked as document 74 in the Court Index
(i)his Response to the wife’s affidavit filed on behalf of the wife on 6 September 2012, sworn by the husband on 30 September 2012 and filed on 1 October 2012.
Throughout the divorce proceedings the husband has regularly emailed my Chambers. I record that those emails do not form part of the evidence in this case. I have only read and relied upon those documents formally filed with the Court or as otherwise specifically mentioned above.
WIFE
The wife relied upon her:
(a)     Response to divorce filed 21 September 2011;
(b)     affidavit filed 14 November 2011 and the annexures thereto;
(c)     affidavit filed 15 December 2011 and the annexures thereto;
(d)to the extent relevant to the divorce proceedings, her trial affidavit in the completed proceedings filed 22 November 2011;
(e)undated Outline of Argument in respect of the divorce proceedings, handed up to the Court during the completed proceedings but not formally filed; and
(e)     her Further Outline of Submissions filed 11 July 2012.
On 14 August 2012 the wife filed a further Application in a Case and sought that leave be granted to adduce further evidence upon the divorce proceedings then before the Court. That Application was supported by an affidavit sworn and filed 14 August 2012, which I have read and evaluated, inclusive of its annexures.
The wife filed a further Application in a Case on 6 September 2012 seeking the dismissal of various orders of the Court which otherwise would have restrained her returning to India with the child, and these orders included the discharge of the Airport Watch List Order and a request for the husband to pay her costs of and incidental to the Applications before the Court. That Application was supported by a further affidavit of the wife sworn and filed on 6 September 2012 which I likewise have read and evaluated.
It should be noted that both parties referred to a number of case authorities in both their written and oral submissions. I have both read and considered those authorities and have expressly reflected on what I believe to be the most important in this judgment.

FAMILY LAW ACT 1975 (Cth) (“the Act”)

There are a number of sections of the Act that are relevant for the purposes of this application.
Section 4 defines “matrimonial cause” as:
(a) proceedings between the parties to a marriage, or by the parties to a marriage, for:
(i)a divorce order in relation to the marriage; or
…
Section 39(3) provides that:
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.
Section 4 defines “ordinarily resident” to include “habitually resident”.
Section 48 provides that:
(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.
Section 55A(1) provides that:
A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:
…
(b) that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:
(i)proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
(ii)there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.

COURT PROCEEDINGS IN INDIA

The husband and wife and their extended families are involved in criminal proceedings in the Supreme Court of India. Those proceedings were instituted by police, upon a complaint lodged by the wife’s father, pursuant to The Dowry Prohibition Act 1961 (India), a copy of which was annexed to the husband’s affidavit in these divorce proceedings.
The wife alleged that her father and the husband’s father had negotiated the payment terms of an illegal dowry immediately prior to the parties’ arranged engagement ceremony. At the time of the party the parties had not yet met each other and after that ceremony they parted and did not meet again until their wedding day.
The wife alleged that the dowry included payment or provision by the wife’s family to the husband’s family of:
(a)     cash – 1,000,000 Indian Rupees;
(b)     a motor vehicle;
(c)     23 carat gold – approximately 400 grams;
(d)     silver goods – 10 kilograms;
(e)     saris and suits for the husband’s extended family;
(f)     household goods; and
(g)accommodation and travel expenses for 80 of the husband’s family and friends who attended the wedding ceremony;
In total the value of these dowry items allegedly paid by the wife’s family exceeded $300,000 AUD. The wife asserted that no part of that dowry has been repaid.
The wife further asserted in her trial affidavit in the completed proceedings, as I have identified in paragraph 95 of that earlier judgment, that:
Pursuant to the dowry agreement my family also gave further gifts to the husband and his family at the time of religious festivals throughout the year following our marriage. These gifts included more gold jewellery, clothes and other items. Further gifts were provided to the applicant’s family following the birth of our son on 22^nd August 2008.
The husband denied the payment of any dowry whatsoever and asserted that there were no such negotiations between their respective families.
A more substantial background to these continuing proceedings in India are recorded in paragraphs 90 – 114 (inclusive) of my earlier reasons for judgment in the completed proceedings and I rely upon and incorporate those facts and findings in these reasons.

WRITTEN SUBMISSIONS

In his Outline of Argument documents dated 11 January 2012 and 25 January 2012, which were handed to the Court during the running of the completed proceedings, the husband’s Counsel submitted that:
(a)the husband is and has been ordinarily resident in Australia for a continuous period of not less than twelve months immediately preceding the filing date of his application for divorce;
(b)the jurisdiction of the Court should not be found to have been ousted;
(c)the language of s 48 of the Act is mandatory and upon the ground having been established then the divorce order shall be made, subject to the provision of appropriate arrangements for the child;
(d)the fact that the husband resides on a four year temporary business visa in Australia does not preclude him from being ordinarily resident;
(e)it would produce an absurd result to find that the husband was ordinarily resident in India;
(f)the husband must be found to be ordinarily resident in a country and as he has lived here for two years, his presence is voluntary and he has a settled purpose and regular order of his life in Australia then this country should now be his country of ordinary residence;
(g)there is no proper or admissible evidence before the Court to prove that the granting of a divorce would have any impact upon the court proceedings in India or any criminal charges or penalty that may arise therefrom;
(h)the husband has a legitimate desire to be divorced from the wife and the grounds are wholly established under s 48 of the Act;
(i)Australia is not a clearly inappropriate forum; and
(j)the divorce proceedings should not be found to be vexatious, oppressive or any abuse of process, but rather be found to be a proper and legitimate application of the husband to seek a divorce to which he is entitled under the laws of this country.
Following the completed proceedings and the date of the above submissions, the husband relocated to India, the circumstances of which have already been described above. In his subsequent written submissions and affidavits filed with the Court the husband explained that he was only temporarily out of Australia, and living in India due to an employment transfer. He maintained that his permanent residency application was current and that he expected it to be granted by the Australian Government by the end of November 2012, if not earlier.
His further submissions and evidence dealt with the ability of the wife to access certain travel documents and that it was not necessary for her to travel on her Indian passport, which would mean that her Australian visa would then be cancelled and that would prevent her return to this country, if and when the husband was then living here and to facilitate time spent with the child.
The husband emphasised in his further Court documents, filed in August and October 2012, of his immediate intention to return to permanent work and residency in Australia. On that basis he “prayed” that the Court would keep all his orders to spend time with the child current and therefore able to be enforced by him upon his return.
What the husband did not provide to the Court was any updated financial information on his current employment, income or lifestyle circumstances in P, India, or make any offer to financially assist the wife and the child to return to India or otherwise be appropriately maintained financially.
The wife’s Counsel, in her various written submissions to the Court, and supported by her closing address in the completed proceedings submitted that:
(a)neither the husband nor wife are, or could be found to be, ordinarily resident in Australia;
(b)the husband’s ownership of recently acquired property in India and the very clear intention of the parties, evidenced prior to travelling to Australia, to return to India are sufficient to prove that neither of them are ordinarily resident in this country;
(c)appropriate arrangements have not been made for the care, welfare and development of the child;
(d)the parties close connection to India, their extended families, the ongoing court proceedings in India and the consequences to those proceedings of any divorce order being pronounced in Australia all prove that Australia is a clearly inappropriate forum; and
(e)the proceedings are vexatious and oppressive of the wife and are an abuse of process of the Indian court proceedings in that they were instituted here solely for the purpose of influencing or corrupting those proceedings and their just and likely outcome.
The wife’s further affidavit evidence was primarily contained in her affidavit filed 6 September 2012. She deposed to the fact that the husband had not spent any face to face time with the child since 13 April 2012. She said she had no notice that he was to be transferred overseas, or that he would travel overseas and only became aware of that fact after he had departed Australia.
The husband, or his mother, retained possession of the child’s Indian passport and has failed to return that, notwithstanding my orders that the passport be given up to the wife.
The wife has now made an application for travel documents from the Department of Immigration and Foreign Affairs in Australia and, subject to an upcoming meeting, is hopeful of being able to return to India before the end of this calendar year. Counsel for the wife informed the Court on 8 October 2012 that the wife has now paid for and received a one way ticket to India for both herself and the child and that her travel now solely depends on the issuing of the relevant travel documents for the child.
The wife remains opposed to the divorce. She has expressed to the Court a belief that the husband will not return to Australia. She does not intend to remain in Australia and, as soon as she obtains the child’s travel documents she will be returning to live permanently in India. I find that the wife’s permanent relocation to India would have likely already occurred had the husband handed up the child’s Indian passport to the wife, as required by my orders, and the husband’s breach of those orders has delayed the wife’s relocation.

The wife has asked, in her Further Application in a Case filed 6 September 2012, for previous orders of the Court to be discharged, including for the Airport Watch List to be uplifted so as to permit her departure and that of the child. I pronounced those orders, in the form sought by the wife, on 8 October 2012, separately to the divorce orders and current judgment. I did so after concluding that it was proper and just in all of the circumstances of this case that I so order. Importantly, those orders will facilitate the implementation of my final orders in the completed proceedings. I found it in the best interests of the child to discharge all current time spent with and communication orders between himself and his father and these matters can properly be determined by Courts in India, where the parties will in future reside. I discharged the Airport Watch List order and I concluded that the wife and child should be able to immediately depart the Commonwealth of Australia.
Thereafter all that remained in this Court was the husband’s divorce application, and it is to that issue that I now return to in these reasons for judgment.

ORDINARILY RESIDENT

It is an agreed fact that the husband, wife and the child arrived in Australia on 30 January 2010. The husband continuously lived in Australia from that date and he held a temporary business visa pursuant to which he was entitled to remain in Australia until January 2014. He however departed Australia at some stage during the fortnight following 13 April 2012, with no prior notice given to the wife or to the Court, despite a Court appearance on 13 April 2012. The husband later informed the Court of his departure, in an email dated 1 May 2012. As at the date of that email to the Court, which was also copied to the wife personally but not her solicitors, he was already in India. His email advised that “I foresee to be in India for the next 2 to 3 months”, however, he still remains in India as at 8 October 2012, some six months after his relocation.
Evidence of the issuing of Australian visas to each of the parties and the child was given in the completed proceedings by two senior officers from the Department of Immigration and Citizenship and that evidence and my findings thereon are detailed in paragraphs 68 – 89 (inclusive) of my earlier judgment. I rely upon those matters where relevant including the husband’s intended application for permanent residency through the sponsorship of his employer.
The evidence of Mr Stokes was that, given the work skills and high standard of spoken and written English which the husband possessed, and with the sponsorship of his employer, his permanent residency application would most likely have been successful. That outcome was dependent upon the husband proving his good character and while the impact of the criminal court proceedings in India was unknown those proceedings would perhaps be relevant if an adverse finding was made against the husband and his family.
My earlier judgment substantially detailed circumstances in which the wife and the child successfully obtained a protection visa in Australia and that gives them unlimited right of entry and departure to and from Australia over the five years from the date of its issue. That visa cannot be revoked save in circumstances where the wife elected to obtain Australian travel documents and then permanently depart this country and, in such circumstances, the wife would have to reapply to return to Australia and have a right of residence in this country. All of the somewhat controversial circumstances in which it was granted, and the disclosures made by the wife for that purpose, are recorded and my findings made thereon in the completed proceedings’ judgment.
Notwithstanding the future rights of residence that could have been available to the wife and the child it was never suggested to the Court that she was ordinarily resident in Australia. She asserted that she was a citizen of India and India was her country of domicile and that she was temporarily located in Australia but always had an intention to return, with the child, to permanently reside in India.
I have highlighted those matters because of the provisions in s 39(3) of the Act which provide for divorce proceedings to be instituted on the applicable date if either party is ordinarily resident in Australia and had been so resident for a period of one year immediately preceding that application date.
The first question that therefore arose for consideration was whether the husband was ordinarily resident in Australia as at the filing date of his Application for Divorce, that is 24 August 2011, and had been so resident for a period of one year immediately preceding that date. The fact of the husband’s subsequent relocation to India is somewhat irrelevant for the purposes of s 39(3), which instead focuses on the residence of the husband as at the date of the application and the year preceding that application. The husband’s subsequent relocation is nonetheless important on the next question that arose for consideration, as examined later in this judgment.
In the decision of Woodhead v Woodhead (1998) FLC 92-813 Registrar Gersbach discussed the term ordinarily resident. In that decision the Registrar determined that the husband was not ordinarily resident in Australia for the purposes of a divorce application in circumstances where his residence in Australia was a consequence of his extradition from Papua New Guinea and subsequent conviction and imprisonment in Australia for conspiracy to import cannabis. The Department of Immigration and Multicultural Affairs were of the view that the husband’s compulsory and lawful status in Australia would be cancelled once he had completed his sentence of imprisonment. Registrar Gersbach concluded that the husband’s presence in Australia was neither for a settled purpose nor voluntary, given that he was serving a term of imprisonment, and given the involuntary nature of his presence, he could not be considered ordinarily resident.
A number of authorities were canvassed by Registrar Gersbach in Woodhead (supra), including the UK decision of Akbarali v Brent London Borough Council (1983) 2 AC 309, which Registrar Gersbach considered to be the “leading authority in the common law jurisdictions”. In that case Lord Scarman observed at 340-342 that:
Ordinary residence is not a term of art in English law. But it embodies an idea of which Parliament has made increasing use in the statute law of the United Kingdom since the beginning of the nineteenth century. The words have been a feature of the Income Tax Acts since 1806. They were used in English family law when it was decided to give a wife the right to petition for divorce notwithstanding the foreign domicile of her husband…Ordinary or habitual residence has, in effect, now supplanted domicile as the test of jurisdiction in family law…
The words ‘ordinary residence’ were considered by this House in two tax cases reported in 1928. In each, the House saw itself as seeking the natural and ordinary meaning of the words. In Levene v IRC [1928] AC 217 at 255…Viscount Cave LC said:
‘… I think that [ordinary residence] connotes residence in a place with some degree of continuity and apart from accidental or temporary absences.’
In IRC v Lysaght [1982] AC 234 at 243…Viscount Sumner said:
‘I think the converse to “ordinarily” is “extraordinarily” and that part of the regular order of a man’s life, adopted voluntarily and for settled purposes, is not “extraordinary”.’
…
I therefore accept the two tax cases as authoritative guidance, displaceable only be evidence (which does not exist) of a subsequent change in Englsih usage. The significance of the adverb ‘habitually’ is that it recalls two necessary features mentioned by Lord Sumner in Lysaght’s case, namely residence adopted voluntarily and for settled purpose. [emphasis added]
The husband held what he described as a “long term visa 457” which permitted him to live and work in Australia until January 2014. His evidence was that he has an agreement with his employer that they will apply, as of February 2012, for a permanent residency application on his behalf which would then permit him permanent residency in Australia. The husband explained that if that process was undertaken through his employer it would take between eight and twelve weeks. Otherwise if he undertook the process himself it could take up to one year. The husband submitted that he otherwise would meet the requirements of the Australian government in respect of his written and spoken command on English and that he holds down a very responsible and skilled level of employment. However given that he has been relocated, albeit he said temporarily, to India, there must be a real level of uncertainty over whether he would maintain his application for permanent residency in this country, or hereafter remain living and continue his domicile of origin in India.
Having carefully read and considered the further evidence and submissions of the husband I have no confidence whatsoever that he will return to Australia. He has now been out of the country for almost six months since his sudden and unannounced departure. He has not satisfied me as to the reasons why he so suddenly left Australia and I have no knowledge of or confidence in his financial desire to return to Australia and of course with his son now living in India the expectation may be that he would seek to spend time with him and thereby continue living in his secure accommodation in P, India.
I have concluded that, for the purposes of determining the divorce application I will proceed upon the basis that the husband is now, by his choice, a citizen and resident of India and the wife has at all times been a citizen of India and now will shortly resume her residence in that country, along with the child. That point becomes relevant for the further issues raised by the wife, considered below, and it does not bear upon whether or not the husband was ordinarily resident on the relevant date, that is, the date of filing his divorce application and the year preceding that filing date.
The other unknown issue was associated with the criminal proceedings on foot in India in which the husband, and his parents, are defendants to an application in the Supreme Court of India, originally heard in City J and now the subject of a transfer of venue application to District R in the state of F. Those proceedings are continuing and interim applications remain to be heard pending a listing and determination of the final proceedings which seek the recovery of a substantial dowry allegedly paid by the wife’s family to the husband’s family, and purportedly in breach of Indian statute law.
Those proceedings may enliven the prospect of a term of imprisonment and such a conviction would impact upon the husband’s character assessment and may be a matter of importance in the determination to be made by the Australian Department of Immigration and Citizenship. I express no concluded view on these issues as the facts remain largely unknown and the outcome of the Indian Supreme Court proceedings cannot be predicted.
The other issue upon which I have made findings in the completed proceedings which touched upon the permanent residency of the husband is his acquisition, as alleged by the wife, of a second property in P, India.
The husband acknowledged that he had purchased, and his family had lived in, a property being identified as K Street, P, India. Conveniently, this is the apartment in which he now lives and which he has recorded on his recently filed documents as being both his residence and his address for service.
The wife alleged that on or about 13 January 2010 she and the husband had inspected a three bedroom apartment that was in the course of construction. That apartment building was approximately 2 kilometres from K Street and the new building was known as K apartments. It was a three bedroom apartment. She asserts that the husband purchased that property in his name with finance arranged through the HDFC Bank. She asserted that she had inspected the property, sighted the original Certificate of Title, witnessed his signature to the mortgage at the offices of that bank and attended the Registry Titles Office with the husband for completion of the purchase process.
The husband at all times denied the purchase of this three bedroom apartment and in the completed proceedings the parties were both recalled and gave further evidence and were cross-examined upon a purported copy contract of sale which was introduced into evidence by leave on the adjourned date of 27 January 2012, and which was the day set aside for final submissions on all issues in these proceedings.
My examination of the evidence and findings are recorded in paragraphs 188 – 208 (inclusive) of those earlier reasons for judgment and I have approached the determination of the husband’s ordinary residence within the background of those conclusions.
The significance of that purchase would be that it does support the specific assertion of the wife that the family had formed a clear and firm intention to acquire that property as a future family home and to pay off the mortgage from the husband’s substantial earnings when in Australia. It was their future permanent residence in P, India, as alleged by the wife.
Having evaluated all of these facts, with the background of the judgment in the completed proceedings, and considering carefully the submissions of Counsel, I nevertheless conclude that the ordinary residence of the husband as at the date that he filed his divorce application was Australia. He had not lived in India since travelling to Australia in January 2010, though that fact is now qualified by his departure on or about 13 April 2012. I accepted during the completed proceedings that as at the January hearing dates, both he and his employer (subject to the qualification that they were not called to give that evidence) intended to lodge a permanent residency application.
For the purposes of the child and parenting application, the husband’s case was firmly planted on the basis that, even if the wife and the child were permitted to return to India, he would remain in this country and not relocate back to India. As it has transpired that is not the case and from 13 April of this year he has been living in India, and thus a resident of that country. Despite his denials to the contrary I have no confidence whatsoever that he would return to Australia, save for matters of personal or financial convenience to himself.
Based upon the provisions of the Act and the past residence of the husband in this country for the period of one year immediately prior to the filing of his divorce application, I must conclude that the husband was at the relevant time for the purposes of the legislation, although not now, ordinarily resident in Australia. I therefore so find that on the preliminary issue of ordinarily resident the husband has met the statutory requirements. I move now to a consideration of the further legal issues which the wife has raised and which I must now determine.

inappropriate forum

The subsequent question that arises is whether the Court should temporarily or permanently stay the determination of the husband’s divorce application on the basis that the Family Court of Australia is a clearly inappropriate forum according to the test in Henry v Henry (1996) 185 CLR 571 and Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. The Court has the power to stay the husband’s divorce application on that ground, notwithstanding the fact that I have already found that he was ordinarily resident in Australia at the relevant time.
In Henry (supra), Brennan CJ reasoned at page 577 to 579 that:
If the Family Court is seized of jurisdiction under [39(3)], Voth affords the only legitimate ground for declining to exercise it.
…
It follows that, before proceedings instituted under s 39(3) of the Family Law Act 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.
In Gilmore v Gilmore [(1993) FLC 92-353] the Full Court of the Family Court outlined five elements of the test which their Honours derived from Voth. Those elements are:
“1. A party who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise.
2. The power to stay proceedings regularly commenced is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are ‘oppressive’, ‘vexatious’ or ‘an abuse of process’. Those adjectives are to be construed liberally, in the sense already referred to…
3. The fact that the balance of convenience favours another jurisdiction or that some other jurisdiction is a more appropriate forum, will not justify a stay of the action.
4.In the application of the above principles the discussion by Lord Goff in Spiliada of relevant ‘connecting factors’ and ‘legitimate personal or juridical advantage’ provides valuable assistance.
5. In deciding whether the chosen forum is clearly inappropriate, the extent to which the law of that forum is applicable in resolving the rights and liabilities of the parties is a material consideration. The selected forum will not be seen as inappropriate ‘if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties’.”
…
…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.
The extended jurisdiction which is conferred by s 39(3) of the Family Law Act is clearly intended to allow decrees of dissolution to be made under the Act when there is a personal connection by way of citizenship, domicil or ordinary residence between a party to the marriage and Australia. So long as that connection is shown, the intention of the sub-section is that persons falling within par (a), (b) or (c) of that sub-section should be able to apply for relief by way of a decree of dissolution in appropriate cases. It would be contrary to the statutory intention for the Family Court to deny that relief if it were not available in another forum. Therefore, where proceedings for a decree of dissolution of marriage are instituted under s 39(3) of the Family Law Act and an application to stay those proceedings is made in accordance with the rule in Voth, it would be necessary for the applicant to show that a foreign tribunal has jurisdiction to make such a decree…
The majority of the Court in Henry (supra) (Dawson, Gaudron, McHugh and Gummow JJ) in their reasons for judgment stated at page 587 to 589 that (omitting footnotes):
In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, 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”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment.” It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, “the discussion by Lord Goff in Spiliada of relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance”. In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being “where the case may be tried ‘suitably for the interests of all the parties and for the ends of justice”.
. . .
The quoted passage [from Gilmore v Gilmore] may be misleading in three important respects. First, the substance of the test in Voth is simply whether the chosen forum is a clearly inappropriate forum. And, as already indicated, that is to be determined by considering whether continuation of the proceedings would be “oppressive” or “vexatious”, in the extended sense in which those words were used by Deane J in Oceanic Sun.
The passage may also be misleading in that it gives undue emphasis to the “prima facie right [of a party who has invoked the jurisdiction] to insist upon its exercise”, a consideration which appears to have been material in the decisions in this case. It was pointed out in the majority judgment in Voth that that prima facie right was common ground in the judgments of the majority in Oceanic Sun. And as such, it was doubtless taken into account in the decision to adopt the “clearly inappropriate forum” test rather than the Spiliada test. But there was also a statement to the effect that, in some cases, too much weight may have been given to “the notion that a proceeding regularly invoked provides a prima facie right to have the proceeding continue in that forum”.
There may be cases in which the notion of prima facie right has some role in determining whether or not a stay should be granted. For example, it may well be significant in what is otherwise a finely balanced contest. But there are also cases in which that notion can do little more than indicate that the onus lies on the party seeking a stay to establish that the chosen forum is clearly inappropriate. Indeed, there may be cases where the forum is so clearly inappropriate that the notion of prima facie right can have no real bearing on the matter, as, for example, if the cause of action arose in a country in which the parties reside or carry on business and their controversy can conveniently be litigated in that country.
The third matter to which reference should be made, although it does not have any direct bearing on this case, is the statement in Gilmore concerning the significance of the substantive law governing the matter in issue. Voth is not authority for the proposition that “[t]he selected forum will not be seen as inappropriate ‘if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties’”. Rather, it was said in the majority judgment that “the substantive law of the forum is a very significant factor in the exercise of the court’s discretion, but the court should not focus upon that factor to the exclusion of all others”.

Further, at page 591 the majority stated that:
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.
In the recent decision of Skinner v Alfonso-Skinner [2010] FamCA 329 Murphy J discussed the authorities of Henry (supra) and Voth (supra) in the context of an anti-suit injunction. His Honour at paragraphs 63 to 70 cited the majority’s reasoning in Henry (supra) and the discussion of the relevance of proceedings in another jurisdiction:
In referring to the post-Voth decision of the Full Court of this Court in Gilmore v Gilmore (1993) FLC 92-353, the plurality in Henry went on to hold (at 589- 591):
There is one other matter that should be observed with respect to the decision in Gilmore, a case involving proceedings both in Australia and in New Zealand. In their separate judgments, Fogarty J, with whom Finn J agreed, and Lindenmayer J criticised the “clearly inappropriate forum test” in its application to proceedings in the Family Court. Fogarty J expressed the view that the test might “lead to inconvenience, in that it will create the risk of parallel proceedings”. Lindenmayer J stated his belief that the clearly inappropriate forum test was “bound to lead to increased forum shopping and jurisdictional conflict” between the Courts of Australia and New Zealand …
There appears to be an assumption in Gilmore that the duplication of proceedings in another country is not, of itself, relevant to the question of whether Australia is a clearly inappropriate forum …
Foreign proceedings usually fall for consideration in a context in which they involve the same or related factual issues as those involved in the local proceedings, but not the same legal issue and, perhaps, not the same parties. Even in cases of that kind it may sometimes be appropriate to grant a temporary stay of the local proceedings to allow for the factual issues to be determined in the other jurisdiction. There are more compelling considerations in favour of a stay of the local proceedings if, as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings and the proceedings are between the same parties and with respect to the same issue or controversy.
Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different Courts in Australia … From the parties’ point of view, there is no less – perhaps, considerably more – inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.
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 different 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 of those words.
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 proceedings 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.
Nygh [Conflict of Laws in Australia, 7^th Edition, 2002] observes (op. cit. at 7.23), that, some two years later, the “same four Judges joined by Toohey and Kirby JJ” said in Cigna, (at 395):
Neither principle nor authority supports the view that the institution of foreign proceedings is, of itself, vexation or oppression, according to the principles of equity. Similarly, neither principle nor authority supports the view that foreign proceedings become vexatious or oppressive in accordance with those principles in the event that the party against whom they are brought later commences proceedings with respect to the same subject matter in this country.
Nygh goes on to say:
… Foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing to be gained by them over and above what might be gained in local proceedings [citing Cigna at 393]. Thus, plaintiffs in this position have been allowed to point to the different remedies that a foreign jurisdiction offers, or the tactical advantage of obtaining a Judgment which is effective against the Defendant’s assets, or simply considerations of convenience and expense in conducting the trial.
In my view, what emerges is that there is nothing as a matter of principle that prevents the bifurcation of proceedings emanating from a single controversy with part of the proceedings being heard in one country and another part in another country, assuming that doing so causes no offence to international comity.
Frequently, though, there can, as a matter of discretion, be seen to be strong reasons for preventing the bifurcation of proceedings in such a manner. In the exercise of the discretion, an important consideration is the nature of each of those differing aspects of the same controversy and the remedies sought and available in respect of each. The evidence needed in support of those differing aspects of the controversy, and the availability of mutual recognition of each Court’s orders in each respect are, as the High Court has made clear, relevant matters.
. . .
The non-exhaustive list of matters relevant to the application of the “clearly inappropriate forum test” identified in Henry (at 592-593) is as follows:
1. Whether each Court will recognise the other’s orders and decrees.
2. Which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
3.        The order in which the proceedings were instituted.
4.        The stage at which the proceedings have each reached.
5.        The costs that have been incurred by the parties.
6. The connection with the parties and their marriage with each of the jurisdictions.
7. The issues on which relief might depend in each of the jurisdictions.
8. The resources of the parties and their understanding of language enabling the parties to participate in the respective proceedings on an equal footing.
In emphasizing the non-exhaustive nature of those matters, the majority held that “ … 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”.
I now turn to a consideration of that non-exhaustive list of matters, as identified in Henry (supra) and discussed in Murphy J in Skinner (supra) and the evidence that is before me in this case to satisfy each of those requirements.
As to items 1, 2, 4, 5 and 7 of that list, the very real difficulty before me is the scant evidence related to the status of the criminal proceedings issued in India pursuant to The Dowry Prohibition Act 1961 (India) and the lack of any reliable and tested expert evidence on those matters.
I have conflicting evidence on the stage that the criminal proceedings have reached in the courts in India, their potential impact on any other claims that the wife (or her family) may be entitled to bring or commence in India, which forum could effectively provide for a complete resolution of matrimonial causes and the particular issues upon which relief might depend in the Indian jurisdiction.
As to item 3 of that list the proceedings were commenced in Australia prior to the commencement of any criminal proceedings in India and that is a matter upon which I can place partial reliance.
As to item 6 of that list the parties married in India and spent the early years of their marriage in that country. Their child was born in that country and they continue to remain citizens of India. The change in the factual circumstances that has arisen post the hearing is the husband’s relocation to India and my finding that there is no evidence upon which I can likely find that he will return, notwithstanding his statements to the contrary. I accept that the wife is soon to permanently depart Australia with the child and that they have no intention of voluntarily returning to Australia. Additionally, they do not have the continued availability of their protective visa to facilitate their easy return to this country.
As to item 8 of that list, the husband has a very substantial knowledge and understanding of the English language, so that the parties are most certainly not on an equal footing as the wife is disadvantaged by her lack of comparative understanding of the English language, her requirement for a court interpreter, and the fact that she has no independent income and minimal financial resources at her disposal.
Henry (supra) established that the onus lies upon the party seeking a stay to prove that the chosen forum is clearly inappropriate and hence the wife in this case. With that consideration in mind I turn to the evidence before me as to the criminal proceedings in India and the letters of advice received from legal practitioners in India and annexed to the parties’ affidavits in evidence before me. Unfortunately, and as a general overview, the proceedings in India appear to be continuing and there have been court hearings and events beyond those dealt with by the parties in their affidavits. Some of those events were updated by the parties on somewhat hearsay evidence admitted during the hearing but it is most likely the proceedings are ongoing. Further at the time of delivery of these reasons for judgment and my pronouncement of orders there will have likely been further developments in India which are and remain unknown to this court.
The husband contended that the grant of a divorce order in Australia would not affect the criminal proceedings in India. He relied upon a letter of advice from his Indian solicitor, Mr Jagdish Chandra Srivastav, to support that submission. However the qualifications or credentials of that solicitor are not proven.
I have read the letter and advice of that solicitor who asserted that a divorce granted by the Australian Family Court would have a binding effect in India and would not, in any way, affect any interest or any matrimonial property of the wife, if any. On the evidence before me I am not able to form a conclusive view on the correctness or otherwise of that opinion.
The solicitor then detailed the criminal proceedings on foot in India and asserted that there was a false case lodged by the defendant’s father which was “absolutely false and baseless”. I was not provided with the final report of 31 December 2010 conducted by the “competent investigating authority”.
There are various other comments and allegations made by that solicitor as to the wife and her conduct including that she “repeatedly committed torture to the plaintiff [husband] and that she wanted to ensure imprisonment for the plaintiff and members of his family” and further that she “lodged a false case of violent assault”.
The solicitor asserted that the various allegations of the wife (and of her family) are “false and untrue”.
Further in paragraph 13 of that letter of advice it was stated that:
As far question of jurisdiction of Australian court to entertain the divorce petition filed by the plaintiff [husband] to adjudicate the same and to pass a divorce order is concerned it is made clear that the Hindu Marriage Act, 1955, which is applicable in India, contains no bar or any prohibition to be adjudicated by an Australian court [sic].
I record that the husband’s solicitor further asserted that, as at the date of his letter of advice, there were no criminal proceedings pending in any court in India. Presumably that is based upon the final orders of the Supreme Court of India pronounced 18 November 2011. There is however, much uncertainty as to whether those orders were indeed final or whether the proceedings have been transferred elsewhere to a court of competent jurisdiction and, from evidence which I have recorded in my earlier judgment there clearly are ongoing hearings and court proceedings outstanding.
I record that I am further very dubious of the knowledge and qualifications of the husband’s solicitor to express such an opinion upon issues of international law and conflicts of laws and to assert whether the Australian court has “competent jurisdiction” to grant the husband’s application for a divorce.
Notwithstanding all of my comments upon the evidence of the husband and his solicitor before the court it remains that the onus is upon the wife to establish that Australia is the clearly inappropriate forum for the husband’s divorce application to be heard and I now turn to the wife’s evidence.
In her affidavit filed 15 December 2011 the wife deposed that the ongoing criminal proceedings in India were listed for a further hearing on 9 January 2012. Subsequently she gave evidence in the proceedings, which I have recorded in my earlier judgment, of the continuation of the Indian proceedings for a transfer of the hearing to a different court and Region in India.
Subsequently, I was advised that the Indian court proceedings were adjourned to 6 February 2012 and thereafter were, by consent adjourned to 9 April 2012. These matters are recorded in paragraphs 90 – 114 (inclusive) of my earlier judgment in the parenting and relocation proceedings and I have relied upon and incorporate that part of that judgment within these reasons. Otherwise I have no further reliable update of the Indian court proceedings, or insofar as one party asserts a particular outcome, then it is contradicted by the other party in documents filed on their behalf or in what they have said to the Court.
There was and remains a very significant dispute upon the alleged payment of the dowry, or the denial that it was ever paid and again I have considered, as best as I was able to do so, these matters in the earlier judgment and I have not repeated those facts and limited findings again in these reasons.
To discharge the onus imposed upon her, the wife sought to rely upon the advice of her solicitor in India, Mr Prashant Chahar. She annexed a letter of advice from her solicitor, dated 20 September 2011, but as with the husband, did not prove his qualifications or credentials.
That letter of advice, which I have read, is annexed to the wife’s affidavit filed 14 November 2011, and asserted that both parties were of the Hindu religion and were married observing Hindu Rites. The advice therefore asserted that the Hindu Marriage Act 1955 (India) applied even though the parties were living outside India and that the parties could therefore only be divorced on a ground available pursuant to section 13 of that Indian Act.
I was not provided with a copy of that legislation or any further helpful advice upon which I could have relied with confidence.
The wife’s solicitor further asserted that the granting of a divorce in Australia would “effect the proprietary and matrimonial dispute / cases in India against the petitioner” and further asserted that the husband had filed divorce proceedings in Australia with the intent of effecting the outcome of the criminal proceedings pursuant to the Dowry Prohibition Act 1961 (India). Paragraph 4 of that letter stated:
That as mentioned above [the husband] and [the wife] are both of Indian citizen and Hindu and they are the subject to the Hindu Marriage Act, even if they are presenting residing in Australia the foreign court (in present case the courts of Australia) can pass a decree or adjudicate a matter recognising Indian Law (in this present matter law relating to divorce among Hindu – the Marriage Act and section 13 of the Civil Procedure Code 1908 may be perused. [sic]
I was not provided with a copy of the Civil Procedure Code 1908 (India) and there were no submissions directed to the recognition of Indian law in the proceedings. Further, the basis upon which this Court could so consider, interpret or act pursuant to such a civil code was never canvassed.
I conclude that I cannot place any weight upon the letters of advice tendered to support the wife’s application for a stay of the proceedings on the basis that Australia is an inappropriate forum for the divorce application to be heard.
This matter returned for further submissions before me on 8 October 2012. I have previously summarised the updated evidence and submissions of both parties. I conclude that, in all probability, it is most likely that the husband will not return to Australia, notwithstanding his statements and comments to the contrary. I do not have any independent evidence from his employer as to their pursuing an application for permanent residency on his behalf. I have determined not to accept the husband’s word on this matter given the circumstances surrounding his secretive departure from Australia and the fact that he has not yet returned six months later, despite his initial estimate of only being out of Australia for two to three months.
Thus, the Court is now placed in the position of having the applicant residing overseas and being a citizen of India. The respondent wife, who has always opposed the divorce, is now preparing to depart Australia and will no longer be living in this country as at the end of this calendar year.
Given that the parties were born in India, their child was born in India and that they will each soon be residing in India, I have concluded that it would be an inappropriate forum for an Australian Court to pronounce a divorce of their Indian marriage.
I conclude therefore, to the extent required, and by the establishment of the facts and events post 13 April 2012, that the wife has discharged the onus of proof upon her. I do not find that Australia is the appropriate jurisdiction to grant the divorce.
I therefore dismiss the husband’s application for a divorce.
It is just and proper, having regard to the provisions of s 117 of the Act that the husband pay the wife’s costs of and incidental to the various hearings associated with his divorce application.
Those costs, if and when it is appropriate and if they are pursued on behalf of the wife, should be assessed by a Registrar of this Court. I understand that it may be unlikely that the costs would be pursued and, even if so fixed, then would or could be enforced. Nevertheless, and for completeness, I find that it is just that such a costs order be pronounced.

Accordingly, my order is for the divorce application of the husband filed 24 August 2011 to be dismissed with an order that he pay the wife’s costs, on a party/party basis, of and incidental to those divorce proceedings.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 7 November 2012.

Associate:

Date:

[2012] FamCA 917

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Abuse of Process

Costs

Statutory Construction

Procedural Fairness

Res Judicata