Sankil & Sankil - [2007] FamCA 1381

FAMILY COURT OF AUSTRALIA

SANKIL & SANKIL

[2007] FamCA 1381

FAMILY LAW – APPEAL AGAINST PERMANENT STAY – Where the wife and the two children of the marriage had not returned to Australia with the husband following a holiday in India – Where the husband, wife and children were all living in India at the time of the trial and of the appeal – Where proceedings initiated by the husband challenging the jurisdiction of the Indian courts to grant a judicial separation and divorce, and to conduct custody and maintenance proceedings, were on foot in the Supreme Court of India at the time of the trial – The trial Judge made orders permanently staying both an application by the husband for divorce and an application by the husband for final orders concerning the children, final orders concerning property settlement, and an injunction to restrain the wife from bringing further proceedings concerning the children in the courts of India on the basis that Australia was a clearly inappropriate forum for those proceedings – Whether the trial Judge erred in not properly applying the principles in Henry v Henry – Whether the trial Judge erred in failing to take account of, or place sufficient weight on, the circumstances surrounding the children’s retention in India – Whether the trial Judge erred in finding that the husband had adopted the jurisdiction of the courts in India – Trial Judge found to have erred in finding that the husband had submitted to the jurisdiction of the Indian courts and in permanently staying the Australian parenting proceedings without a final determination by the Supreme Court of India on the jurisdictional issue – Parties directed to file updating evidence concerning the proceedings Supreme Court of India – Appeal to be dismissed if the Supreme Court of India has determined that Indian courts have jurisdiction – Future course of appeal proceedings to be considered further by the Full Court should the position regarding jurisdiction in India remain unclear.

FAMILY LAW - APPEAL AGAINST COST ORDERS – Where the trial Judge had ordered that the husband pay the wife’s costs of the proceedings in which the order for permanent stays were made – Appeal allowed on the basis that the trial Judge erred in finding that the husband had submitted to the jurisdiction of the Indian courts.

Family Law Act 1975 (Cth)

Henry v Henry (1996) 185 CLR 571; (1996) FLC 92-685

APPELLANT:

Mr Sankil

RESPONDENT:

Ms Sankil

FILE NUMBER:

SYF

2504

2005

APPEAL NUMBER:

EA
EA

110
142

of
of

2005
2005

DATE DELIVERED:

26 November 2007

PLACE DELIVERED:

Canberra

JUDGMENT OF:

Finn, Coleman and Boland JJ

HEARING DATE:

6 November 2006

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 August 2005

9 November 2005

LOWER COURT MNC:

[2005] FamCA 822
[2005] FamCA 1105

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPELLANT:

Fox & Staniland

COUNSEL FOR THE RESPONDENT:

No appearance

Orders

That the appeal against the order…

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.

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Details

AGLC: Sankil & Sankil [2007] FamCA 1381
Case: [2007] FamCA 1381
Decision Date: 26 November 2007

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning orders made by a trial judge. The husband sought to appeal a permanent stay on his applications for divorce, final orders concerning the children, property settlement, and an injunction to restrain the wife from pursuing further proceedings in India. The dispute arose after the wife and two children of the marriage remained in India following a holiday, with all parties residing in India at the time of the trial and appeal. The husband had initiated proceedings in the Supreme Court of India challenging the jurisdiction of Indian courts to grant a judicial separation, divorce, and to conduct custody and maintenance proceedings.

The primary legal issues before the Full Court were whether the trial judge erred in applying the principles established in *Henry v Henry* when determining that Australia was a clearly inappropriate forum, whether sufficient weight was given to the circumstances surrounding the children's retention in India, and whether the trial judge was correct in finding that the husband had submitted to the jurisdiction of the Indian courts. The court also considered an appeal against cost orders made by the trial judge.

The Full Court found that the trial judge erred in concluding that the husband had submitted to the jurisdiction of the Indian courts and in permanently staying the Australian parenting proceedings without a final determination on the jurisdictional issue by the Supreme Court of India. The court noted that the husband had actively challenged the jurisdiction of the Indian courts, as evidenced by the ongoing proceedings in the Supreme Court of India. Consequently, the appeal against the cost orders was allowed, and the trial judge's cost order was set aside. The appeal concerning the permanent stay of the Australian proceedings was stood over for further consideration, with directions for the parties to file updating evidence regarding the proceedings in the Supreme Court of India.

Orders

Orders of the court

That the appeal against the order with respect to costs made on 9 November 2005 be allowed.

That the order with respect to costs made on 9 November 2005 be set aside.

That if it be required, leave be granted to the husband to appeal the order made on 26 August 2005 permanently staying the applications filed by the appellant husband in the Family Court of Australia on 11 March 2005.

That the appeal against the order made on 26 August 2005 permanently staying the applications filed by the appellant husband in the Family Court of Australia on 11 March 2005, be stood over for further consideration by the Full Court in light of any further evidence to be adduced and submissions made by the parties as provided for in Orders 5 and 6 of these orders.

That on or before 1 March 2008 the appellant husband file in the Appeal Registry of the Family Court of Australia, Sydney, and serve upon the wife at her last known address in India, a brief affidavit directed to the current position in relation to the Special Leave Petition No. 10364 of 2005 filed by him in the Supreme Court of India, on 29 April 2005 and to any other relevant proceedings in the courts of India together with any written submissions which the appellant husband would wish to make in relation to the future course of the appeal against the order made on 26 August 2005, and in relation to the costs of the appeals which are the subject of these orders.

That the respondent wife be at liberty to file in the Appeal Registry of the Family Court of Australia in Sydney, and serve upon the husband’s solicitors, Fox and Staniland Lawyers of Pymble, New South Wales, any affidavit and submissions in relation to the matters mentioned in Order 5 of these orders on or before 1 March 2008.

That the Appeal Registrar forward copies of the reasons for judgment delivered and orders of the Full Court made this day to the respondent wife at the address in India last provided by her to the Registrar.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It was submitted by Senior Counsel for the husband that the finding that “it is not seriously in dispute that the Indian courts have jurisdiction in relation to judicial separation and divorce” was wrong given that the husband had not conceded the jurisdiction and given also the content of the only expert evidence which was before his Honour. That expert evidence was contained in an affidavit from the husband’s Indian lawyer, B. V. Nagarathna, which was filed on 11 July 2005. The relevant passages from that affidavit are as follows:II. Regarding the Status of Proceedings in India for Judicial Separation1.On 5 April 2004, [the wife] filed in the Family Court Mumbai, a petition A531/2004 for judicial separation under Sec.10 of the Hindu Marriage Act, 1955. She also filed an interim application 128/2004 seeking custody of the two minor children and for maintenance.2.On 5 April 2004 the Family Court Mumbai, passed an ex-parte order directing that the minor child [N] not be taken out of Bangalore/Mumbai/India by [the husband] or any of his agents.3.On 2 June 2004 the Family Court Mumbai, passed another interim order directing that in the event of [the husband] deciding to leave India even for a short while, should hand over custody of [N] to [the wife].4.On 1 July 2004, [the husband] filed an application 234/2004, challenging the competency of the Family Court, Mumbai on the ground that, [1] in Private International Law, only Courts of Domicile could entertain and adjudicate in the matrimonial causes as the parties are Swedish nationals, domiciled in Australia and therefore the Mumbai Family Court did not have the jurisdiction to entertain [the wife’s] petition for judicial separation under Sec.10 of the Hindu Marriage Act. [2] The application also challenged the maintainability of the Judicial Separation petition and interim applications on the grounds that as per Sec.1[2] of the Hindu Marriage Act, 1955, domicile in India of both parties at the time of filing of the petition, is a condition precedent for the Act to apply [even though the parties are Hindus], [3] [the wife] had played a fraud on the Family Court, Mumbai, by providing false and misleading information in the Cause Title to her petition A531/2004 and the Interim Application, 128/2004.5.On 28 July 2004, the Family Court, Mumbai dismissed [the husband’s] applications on the basis that the evidence before the Court did not assist the Judge to determine the domicile of the parties.6.On 23rd September 2004, the Mumbai High Court on a Writ Petition by [the husband] set aside the Family Court order of 28 July 2004 and remanded the matter back to the Family Court with a direction to determine the issue of jurisdiction as a preliminary issue. The High Court also passed certain orders on access which were set aside by the Hon’ble [sic] Supreme Court of India on 11.10.2004.7.[The husband] produced before the Family Court Mumbai, all relevant evidence and document [sic] [available to him in India] by way of examination-in-chief. He was also cross-examined by [the wife’s] lawyers.8.On 1 Jan 2005, the Family Court, Mumbai, allowed [the husband’s] application 234/2004 and stayed its own order for a period of 4 weeks giving time for [the wife] to appeal.9.In January 2005, [the wife] filed an appeal FCA No.11/2005 before the Mumbai High Court, against the Family Court order of 1 January 2005.10.On 11th April 2004, the Mumbai High Court allowed her appeal. The Mumbai High Court revived [the wife’s] application A531/2004 for judicial separation and interim Application 128/2004 for custody of children and maintenance. The High Court further stayed its own order for a period of 5 weeks allowing [the husband] to appeal. The interim order dt. 5th April 2004 and 2nd June 2004 continue to operate against [the husband].11.On 29th April 2005, [the husband], filed a Special Leave Petition No. 10364 of 2005 in the Supreme Court of India appealing against the judgment and order dated 11th April 2005, by the Mumbai High Court. The Supreme Court has issued notice to [the wife] directing her to file her response within four weeks from 10th May 2005 and has allowed two weeks thereafter for [the husband] to file his rejoinder. The Supreme Court of India which is currently on vacation will re-open mid July. No response has yet been received from [the wife], till [sic] date.